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Second Circuit - Architect's Faulty Designs Were Two Separate Defects

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On June 23, 2014, the Second Circuit Court of Appeals issued a decision in the case Dormitory Authority of the State of New York v. Continental Casualty Company (2014 WL 2808073), a declaratory judgment action filed by a building owner against the architect's insurance carrier over the faulty design of a dormitory. The issue in this case was whether two design defects in the structure of the building were "related." The owner sought a declaration that the design flaws were two separate defects because, if so, two separate policies would have responded to the claims, but if not, there would not have been sufficient limits to remediate both defects. Although this decision has not received much attention yet, the importance lies in the Second Circuit's agreement that the defects were separate, notwithstanding policy language that attempted to group related wrongful acts.


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Common-Law or Statutory Payment Bond: Do You Know What Type of Bond Your Contract Requires?

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Hard Hat Workforce Solutions, LLC v. Mech. HVAC Servs., Inc., 406 S.C. 294, 750 S.E.2d 921, 922 (2013).

How confident are you that the payment bond your subcontract required you to obtain falls within your state's payment bond statutory scheme? Bonds.jpg In Hard Hat Workforce Solutions, LLC v. Mech. HVAC Servs., Inc., 406 S.C. 294, 296, 750 S.E.2d 921, 922 (2013), the Supreme Court of South Carolina reversed the Special Circuit Courts decision granting summary judgment relief for a surety defendant on the theory that the plaintiff, a fourth-tier subcontractor, need not provide notice as required by statute because the bond at issue was a common-law, not statutory, bond. (Full write up, after the jump.)

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An American Policyholder in London: English Choice of Law Clauses in United States Insurance Policies

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Ray Sweigart and Jeff Kiburtz published their advisory titled An American Policyholder in London: English Choice of Law Clauses in United States Insurance Policies. The Advisory identifies a few of the issues on which English law is notably different from prevailing law in the United States and which ought to be taken into account when considering an English law and forum clause.

Shamrock Shake: St. Patrick's Day Earthquake in Los Angeles Is a Reminder to Check Your Property Insurance Policy

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By Pillsbury Winthrop Shaw Pittman

Pillsbury attorneys Robert L. Wallan, Kimberly L. Buffington and Alyson R. Parker published today their advisory titled Shamrock Shake: St. Patrick's Day Earthquake in Los Angeles Is a Reminder to Check Your Property Insurance Policy on the heels of a 4.4-magnitude earthquake that shook L.A. County out of bed at 6:25 a.m. on St. Patrick's Day. The Advisory reminds everyone to be informed about their current and future residential or commercial earthquake insurance coverage.

Additional Resources: Insurance and the Polar Vortex: Recovering Losses from the Big Chill of 2014

Court Confirms Duty to Defend Under Policy With Products-Completed Operations Coverage and Professional Services Exclusion

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On Thursday, March 13, a California Court of Appeal found substantial evidence that State Farm General Insurance Co. (State Farm) had a duty to defend North Counties Engineering Inc. (North Counties) under a policy that included products-completed operations coverage notwithstanding that the policy also included a professional services exclusion. The Court, in North Counties Engineering Inc. v. State Farm General Insurance Co., Case No. A133713, ordered State Farm to cover North Counties' defense costs in two lawsuits filed in 2004 in connection with construction of a dam that had been completed in 1999 for Lolonis Winery (Lolonis). It reversed the trial court's order granting State Farm's motion for a directed verdict and, among other things, reconfirmed that the insurer "owes a broad duty to defend its insured against claims that create a potential for indemnity" and "any doubt 'as to whether the facts give rise to a duty to defend is [to be] resolved in the insured's favor.'" On remand, judgment will be entered confirming that State Farm had a duty to defend North Counties.

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Dial back that hyperbole, or it could really hurt you

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One of the first tactical lessons most litigators learn is not to overstate your position. Another lesson is to always remain civil, even in the face of an un-civil opponent. These lessons are sometimes difficult for young lawyers, brimming with aggression, to digest. Most of the time when one of those lawyers inserts unfortunate language in a brief--say, openly mocking the opponent's argument--cooler heads prevail and a sage senior lawyer excises the offending language.

Most of the time. But not all of the time. This short Sixth Circuit opinion, Bennett v. State Farm Mutual Insurance is a good lesson to young lawyers. I can't deliver a judicial bench slap any better than the court, so let me just quote Judge Kethledge:

"There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." Big Dipper Entm't, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir.2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct."

Ouch. Whatever feeling of satisfaction that lawyer had when he wrote "ridiculous" in his brief must have felt worlds away when he read that opinion.

There's another lesson here: Always carefully review defined terms in your insurance policy. In Bennett, "The question presented is whether Bennett was an "occupant" of the Fusion--as that term is defined by State Farm's policy--at the time she was on the vehicle's hood. If she was, then she is entitled to coverage for the injuries she sustained there; if not, then not." The policy defined "occupying" as "in, on, entering or alighting from." Since Mrs. Bennett was "on" the car, she was "occupying" it as defined by the policy.

One last lesson for insureds: Don't give up too easily. It would have been very easy for Mrs. Bennett to hang her head when State Farm denied her claim because she was on the hood, and wasn't an "occupant" of the car. But she stuck with it and pressed her case. Good for her.

The Five P's -- Prior Planning Prevents Poor Performance

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You'd be surprised at how often we find mistakes at the beginning of projects that, if not caught, would put most of a client's insurance coverage at risk. Clients frequently ask us to review their controlled insurance programs (often referred to as "CIPs" or "Wrap-Ups") before implementing them. Brokers do much of the heavy lifting in structuring these programs, but many of our clients like to have coverage attorneys review them for some nuances that lawyers who litigate coverage issues will pick out. The issues get pretty esoteric, but some esoteric issues can be worth a lot of money. Lately, I've been seeing one particular type of exclusion in Wrap-Ups that, if it remained and were enforced, could jeopardize much of the coverage the client thought they were buying in the Wrap-Up: a "Cross-Suits" exclusion.

Under a Wrap-Up, the owner (under an "Owner Controlled Insurance Program or "OCIP") or general contractor (under a Contractor Controlled Insurance Program or "CCIP") and all contractors and subcontractors of every tier are named insureds under certain project insurance, typically general liability and workers compensation. When properly administered, a Wrap-Up program can increase project savings, reduce litigation, provide more complete coverage for completed operations, increase Minority and Women Business Enterprise participation, among other benefits.

But Cross-Suits Exclusions are children of a different type of insurance set-up, a more traditional program where individual contractors and subcontractors buy their own insurance and some are required to make others additional insureds. This exclusion precludes coverage for claims brought by one insured against another insured. A typical Cross Suits Exclusion provides: "This insurance does not apply to: . . . Suits brought by one insured against another insured." These would, for example, avoid the "moral hazard" of a parent company suing its own subsidiary to trigger liability coverage.

But in a Wrap-Up, this doesn't make any sense. Remember, in a Wrap-Up, the owner, general contractor and all subcontractors are all named insureds. So a Cross-Suits exclusion would bar coverage for any liability the general contractor may have to the owner for losses arising from it or its subcontractors negligence. That's a significant part of the coverage that an owner would want its contractor to have on a GL policy. If a Cross-Suits exclusion remained and were enforced, the only liabilities covered would be to third parties--parties that have nothing to do with the project.

A similar limitation is created when a Cross Suits Exclusion is included in a CCIP. Although in that circumstance there may be coverage for a contractor's liability to the owner (if the owner is not a named insured), contractors will not be able to trigger coverage for their own losses arising from the negligence of another contractor/subcontractor on the project. For example, the general contractor will not be able to trigger the Wrap-Up program for losses it incurs as a result of its subcontractors' negligence.

This is just an example of an exclusion that plainly doesn't belong in a Wrap-Up program, but that we've seen almost inserted in them recently. Make sure to have a reputable broker review your programs before implementing them and consider investing a small amount to have a coverage attorney review it. Prior planning prevents poor performance.

Insurance and the Polar Vortex: Recovering Losses from the Big Chill of 2014

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By Pillsbury Winthrop Shaw Pittman

On January 16, 2014, Pillsbury's Insurance Recovery & Advisory team published their alert titled Insurance and the Polar Vortex: Recovering Losses from the Big Chill of 2014 discussing anticipated insurance coverage issues stemming Globe Polar Vortex.jpgfrom the extraordinary weather disaster during the first two weeks of 2014. Among other things, the big chill froze pipes and sprinkler systems, interrupted chemical manufacturing and disrupted transportation systems, causing extensive property damage and business interruption as a result of freezing temperatures.

Photo: AIRS, the Atmospheric Infrared Sounder, Taken on January 10, 2014 - Creative Commons

Trigger happy NJ Supreme Court allows two carriers of the same insured to sue each other

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What if you get sued for property damage that occurred progressively over the course of two years, and you had separate GL policies for each year? Do you get the benefit of coverage for both years, or just the first year? Well, if you're in New Jersey, you get coverage for both years, which generally will mean twice the limits, thanks to Potomac Ins. Co. of Ill., ex rel. One Beacon Insurance Company v. Pennsylvania Manufacturers Association Insurance Company, a case the New Jersey Supreme Court handed down earlier this week.

But what if one of the carriers provides a defense to the lawsuit, but the other refuses? Under One Beacon the carrier that provides a defense can sue the carrier that doesn't. Time will tell the effect of that. One danger might be that carriers become reluctant to settle with insureds in a continuous loss case because of the risk of later being sued for more money by a co-insurer. Alternatively, it may - as the New Jersey Supreme Court believes - promote early settlement, as an insurer that anticipates paying an allocated portion of defense costs may factor those costs into a potential resolution of the underlying claim and will be incentivized to seek earlier settlement.

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When Water from the Sky Ceases to be Rain

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A recent decision by the First Circuit Court of Appeals illustrates the importance of clearly articulating the efficient proximate cause of any insurance loss and the narrow interpretation applied by courts to exclusionary clauses. In Fidelity Co-op. Bank v. Nova Cas. Co., Nos. 12-1572, 12-2150, 2013 WL 4016361 (1st Cir. August 7, 2013), the court ruled that damages to the interior of a building caused by the pooling of water on the building's roof, which resulted from excessive rain during Tropical Storm Hanna, did not constitute damage "caused by rain" excluded by the insured's all risk insurance policy. Rather, the court held that the damages were caused by the failure of a drain that resulted in a "flood," which peril was expressly covered under the policy.

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Replacement cost property policies cover contractor's OH&P -- says Florida Supreme Court

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The Florida Supreme Court gave insureds a Fourth of July present one day early -- July 3 -- by ruling that property policies providing replacement cost coverage include the cost of a contractor's overhead and profit, even if the insured does not actually pay a contractor overhead and profit to replace the damaged property. We'll explain the decision, Trinidad v. Florida Peninsula Insurance Company, in detail after the jump, but first some commentary.

We've often seen this issue in the "no good deed goes unpunished" situation where a contractor steps in to perform repair work on a builders risk policy and the carrier refuses to pay the contractor's overhead and profit. If the contractor did not perform the repairs, either the owner or the carrier would have to hire a different contractor who was not already on site to mobilize to the site and perform the repair work. The carrier would obviously have to pay that contractor overhead and profit. And that contractor would be much less efficient and more expensive. But the carrier tries to take advantage of the original contractor's willingness to step in by carving overhead and profit off the payout.

This Florida Supreme Court decision validates our position: A carrier must pay the overhead and profit whether or not the insured actually pays a contractor to do the work. Now, for the details.

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NY 1st Department Affirms Duty to Defend Freezer Manufacturer for Unfrozen, Ruined Cakes Under CGL Policy

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Last month New York's Supreme Court, Appellate Division 1st Department affirmed the Supreme Court, New York County's decision granting partial summary judgment in favor of an insured freezer manufacturer, I.J White Corp., which sought defense and indemnity under a CGL policy for claims against it brought by Hill Country Bakery for breach of contract, breach of warranties, and fraudulent inducement. See I.J. White v. Columbia Casualty Co., 2013 N.Y. Slip Op 02500 (NY A.D., 1st Dept., April 16, 2013). The court held that Hill Country's underlying complaint against I.J. White seeking damages because of a defect in its freezer system alleged both an "occurrence "and "property damage" within the meaning of the policy, triggering the insurer's duty to defend.

Hill Country, a maker and distributor of baked goods, bought a spiral freezer system from I.J. White which was to freeze freshly baked goods within 150 minutes to a temperature necessary for proper handling and packaging. Once installed, however, the freezer failed to freeze the cakes as required, which became evident when workers cut into the cakes as part of the packaging process.

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That's not what I meant either! -- Ambiguous drafting thwarts (one party's version of its) intent, again

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A few weeks ago I posted about an Eighth Circuit case that once again illustrated how, despite the drafter's precision carrying the day most of the time, sometimes a litigator's creativity can trump it. Well, it's happened again. And again the issue is whether a dispute between and insured and a carrier is subject to arbitration. And again, the carrier wanted to arbitrate but the court kept the case. This time it's the Second District California Court of Appeal, in Diamond Blue Enterprises v. Gemini Insurance Company. Before I say more, let me caution all the lawyers preparing to cite the case that it's unpublished.

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That's not what I meant! The drafter's (apparent) intent thwarted again.

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By Michael S. McNamara

I occasionally give a presentation called "That's not what I meant!" which is subtitled "Usually the drafter's precision carries the day, but sometimes the litigator's creativity trumps it." Our legal system generates seemingly endless material for this presentation and last week the Eighth Circuit gave us more in Union Electric v. AEGIS Energy Syndicate. The policy had a mandatory arbitration provision, but an endorsement specified that Missouri law governed and a Missouri statute prohibits mandatory arbitration of insurance disputes, so while the carrier wanted to compel arbitration, Judge Jean Hamilton refused and the Eighth Circuit affirmed her decision. So, the drafters may have intended that any disputes would be arbitrated, but if so, they should have done some more homework.

There are a couple of lessons here. First, read the entire policy, including the endorsements. The endorsements are like change orders to construction contracts and until you've read them, you don't know what the policy provides for. Second, just because a policy (or any other contract, for that matter) says something doesn't mean it has to be. Many common contractual clauses are rendered unenforceable by either caselaw or statutes. Third, because insurance policies are governed by state laws, and in light of the differing interpretations and statutory schemes amongst the states, there can be wide variations of the procedural and substantive effect of policies depending on what state's law governs. So, do your homework.

Defects in an insured's own work are "unmistakably included" in the definition of "occurrence" in CGL policy, rules Second Circuit.

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The Second Circuit's recent decision in Scottsdale Insurance Company v. R.I. Pools, Inc., Case No. 11-3529, 2013 WL 1150217 (2d Cir. March 21, 2013) should be welcome news for Connecticut contractors insured under CGL policies with Broad Form Property Damage Coverage, seeking coverage for losses to their work caused by their subcontractors. In RI Pools, the Second Circuit vacated the district court's grant of summary judgment in favor of an insurer, including a ruling that the insurer was entitled to a return of funds it spent on the insured's defense, after concluding that the district court erred when it ruled that a swimming pool contractor's liability for cracked concrete could not be covered by its insurance. The district court relied on the "your work" exclusion, but in doing so, it read the "subcontractor exception" out of the policy. The Second Circuit put it back in.

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