On January 18, 2018, in McMillin Albany LLC v. Superior Court, the California Supreme Court published a closely followed decision resolving a lower court split interpreting California’s Right to Repair Act (S.B. 800, Civ. Code § 895 et seq.). The Court determined that the legislature intended to alter the common law when it came to economic loss and property damage, making the Act the exclusive remedy for construction defects.
The Federal Emergency Management Agency (FEMA) and New York City have announced that they will be working together to update the City’s flood maps. The need for updating FEMA’s flood maps has become more than apparent since at least 2005. Cities like New York, Houston, and Baton Rouge, which have been devastated by floods in recent years, are all too familiar with the shortcomings of FEMA’s flood maps. New York City, in particular, suffered in the wake of Hurricane Sandy, when approximately 80% of those who experienced flood damage did not have flood insurance.
On August 25, the U.S. Court of Appeals for the Tenth Circuit, in an unpublished opinion, affirmed the lower court’s ruling that the cost to remediate environmental contamination at a ski resort was subject to a contractual exclusion in the facility’s commercial general liability insurance policy. The case is Taos Ski Valley, Inc., v. Nova Casualty Company.
On September 15, the U.S. Court of Appeals for the First Circuit released a significant Oil Pollution Act (OPA) ruling. The case is Ironshore Specialty Insurance Company v. U.S., et al. The Court of Appeals affirmed the District Court’s decision that neither the U.S. nor American Overseas Marine Company, LLC (AMSEA) , a contractor that provided specified services to the U.S. Navy in connection with the operation of “the FISHER,” a government-owned transport vessel and vehicle cargo ship, were liable under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761 (OPA), for a fuel oil discharge. However, Ironshore Specialty Insurance Company (Ironshore), BSR’s insurer, negligence claims against the U.S. (but not AMSEA) were remanded to the District Court for further proceedings.
Most construction loans contemplate multiple advances or disbursements of funds at various stages of the construction project. The construction loan agreement will set forth the conditions that the borrower must satisfy to receive each advance of funds. Given that a construction loan concerns an active construction project, there is a risk that a lender could lose its lien priority in an advance (secured by the insured mortgage) to a mechanic’s lien. This post addresses how a title insurance policy and endorsements can insure against such a risk. Continue reading
On January 31, the U.S. Court of Appeals for the Eighth Circuit held that, under the terms of a commercial general liability insurance policy, natural gas condensate, a valuable commercial product, once released, is a pollutant that triggers the policy’s “pollutant exclusion.” The case is Hiland Partners GP Holdings, LLC, et al., v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA. The Eighth Circuit confirmed that the District Court did not err by concluding that National Union Fire Insurance Company of Pittsburgh, PA (National Union) did not have a duty to defend or indemnify Hiland Partners GP Holdings, LLC, Hiland Partners, LP, and Hiland Operating, LLC (collectively, Hiland) because the allegations in B&B Heavy Haul, LLC’s (B&B) employee Lenny Chapman’s complaint fell within the policy’s pollution exclusion and the exception to the exclusion did not apply because Hiland failed to offer evidence that it reported the pollution to National Union within 21 days of discovering it.
The Florida Supreme Court recently issued a widely reported decision, Sebo v. American Home Assurance Co., which applied the concurrent cause doctrine in ruling that an all-risk homeowner’s insurance policy provides coverage when damage is the result of multiple events—so long as at least one of them is a covered peril. Plaintiff John Sebo purchased a home, which he insured under an all-risk homeowner’s policy written by American Home. As an “all-risk” policy, it provided coverage for damage to property caused by all perils, except those it explicitly excluded. Design defects and faulty construction were among the excluded perils. Within less than two months of buying the house, Mr. Sebo discovered major leaks during rainstorms, which were later found to be the result of design defects and faulty construction. Hurricane Wilma then caused even more damage. When Mr. Sebo sought coverage for damage from the water intrusion, American Home denied most of the claim on the grounds that it was caused by design defects and faulty construction—which were excluded perils. But the Florida Supreme Court found coverage.
We recently posted an interesting blog on Pillsbury’s Policyholder Pulse titled Subrogation Waivers and the Perils of Litigation: Wavering on a Precipice. In it, Allen discusses the perils of using standard subrogation waivers in your insurance policies, and cautions against the use of standard waivers (which can have unintended consequences).
Recently, our colleagues Tamara Bruno, Colin Kemp, Peter Gillon, Vince Morgan and Joseph Jean published an alert titled Hurricane Matthew Requires Immediate Action to Maximize Insurance Recovery to help you weather any storm.
Photo: U.S. Department of Agriculture – A MH-60 helicopter from the U.S. Coast Guard (USCG) Aviation Training Center Mobile, AL conducted a fly over of the Charleston, South Carolina area that was affected by Hurricane Matthew, on Friday, October 8, 2016. The Coast Guard is committed to the safety of the community, environment, and responders. USCG photo by Petty Officer 3rd Class Alexandria Preston – Creative Commons
Check out my latest blog for Pillsbury’s Policyholder Pulse titled A Subcontractor’s Defective Work Is an Occurrence: Weedo Wobbles … and Falls Down. It discusses a recent ruling in New Jersey, Cypress Point Condominium Assoc., Inc. v. Adria Towers, L.L.C., on the issue of whether damage caused by a subcontractor’s faulty workmanship constitutes “property damage” and an “occurrence” under a property developer’s commercial general liability insurance policy.
Additional Source: Weedo v. Stone-E-Brick, Inc.