Federal Appeals Court Affirms Ruling that Insurance Companies Are Not Liable to Defend Joint Venture that Built Levi’s Stadium in ADA Lawsuit

Jul 16, 2021

The 9th U.S. Circuit Court of Appeals has affirmed a lower court’s ruling that Hartford Financial Services Group Inc., Chubb Ltd., and Markel Corp. are not obligated to defend the joint venture that constructed the San Francisco 49ers football team’s stadium in a disability discrimination lawsuit.

The underlying putative class-action lawsuit was brought in 2016 by Abdul Nevarez, who named the 49ers, the City of Santa Clara (home of Levi’s Stadium), and related corporate entities as defendants. Specifically, she alleged that the stadium did not have sufficient public accommodations – such as accessible seating, restrooms, and signage – in violation of the federal Americans with Disabilities Act and state law.

The 49ers then sued Turner/Devcon (the joint venture of New York-based Turner Constructor Co. and Devcon Construction Inc.), which had constructed the stadium, claiming any liability was caused by Turner/Devcon’s negligence. Further, it alleged the joint venture had a contractual obligation to indemnify the 49ers for any litigation relating to “penalties or fines levied or assessed for violations of any Legal Requirement.”

Turner/Devcon turned to the aforementioned insurance companies, spawning litigation. The lower court agreed with the insurance companies, leading to the appeal.

“In California, the design and construction of a structure that allegedly violates accessibility laws generally does not fall within the plain meaning of ‘accident’ when used in insurance contracts,” wrote the panel in its ruling.

“Put another way, an event is not an ‘accident’ where the insured intended the acts that caused the victim’s injury…and an insured’s intentional act does not become an accident simply because it had the unintended effect of violating federal and state accessibility laws.

“With these principles in mind, we agree with the district court that the Nevarez complaint does not allege an ‘occurrence’ within the meaning of the policies.

“The Nevarez complaint alleges that the 49ers violated the Americans with Disabilities Act by designing and constructing their stadium in a manner that did not comply with federal disability access design standards.

“Because the design and construction of the stadium was not an ‘accident,’ it was not an ‘occurrence,’ and is not covered by the policies in issue.”

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