GA Federal Court Holds That Jury, Not Judge, Generally Must Decide Whether Notice Was Given “As Soon as Practicable” Under First-Party Property Damage Policies
November 01, 2021 —
Edward M. Koch & Lynndon K. Groff - White and WilliamsInsurance policies covering first-party property damage often require insureds to notify insurers of a loss “as soon as practicable.” Where an insured may or may not have given notice “as soon as practicable,” the issue arises as to who should determine whether the insured complied with this requirement: the judge or the jury?
On October 6, 2021, the United States District Court for the Middle District of Georgia addressed this issue in Vintage Hospitality Group LLC v. National Trust Insurance Company, Case No. 3:20-cv-90-CDL, 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). In Vintage Hospitality, a July 2018 hailstorm damaged the roof of a hotel owned by the policyholder. The policyholder did not discover leaks from the hotel roof until two months later, in September 2018. The policyholder, not realizing that the hailstorm had caused the leaks, unsuccessfully attempted to repair the leaks. Eventually, in February 2020—19 months after the hailstorm and 17 months after the policyholder discovered the leaks—the policyholder hired a construction company to evaluate the roof. It was not until then that the policyholder learned that the hotel had sustained hail damage from the July 2018 storm. The policyholder notified its July 2018 first-party property damage insurer a few days later.
Reprinted courtesy of
Edward M. Koch, White and Williams and
Lynndon K. Groff, White and Williams
Mr. Koch may be contacted at koche@whiteandwilliams.com
Mr. Groff may be contacted at groffl@whiteandwilliams.com
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Anchorage Building Codes Credited for Limited Damage After Quakes
January 08, 2019 —
Christine Kilpatrick - Engineering News-RecordThe magnitudes 7.0 and 5.7 earthquakes that struck Anchorage, Alaska, on Nov. 30 shook buildings and shattered highways, but caused limited structural damage and no reported loss of life, mostly due to the depth and location of the quake’s epicenter, as well as the city and state’s stringent building requirements.
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Christine Kilpatrick - ENRMs. Kilpatrick may be contacted at
kilpatrickc@enr.com
A Court-Side Seat: Environmental Developments on the Ninth Circuit
July 13, 2020 —
Anthony B. Cavender - Gravel2GavelOn May 26, 2020, the U.S. Court of Appeals for the Ninth Circuit decided three significant environmental law cases. Two of these cases involved whether global warming tort cases could be brought in California state courts on, for example, a public nuisance claim, and whether the defendant energy companies had the right to have them removed to the federal courts.
County of San Mateo, et al. v. Chevron Corp., et al. and City of Oakland v. BP PLC, et al.
While acknowledging the immensity of the legal issues, the Ninth Circuit held that the federal removal statutes did not permit these cases to be removed to the federal courts. For one thing, state court jurisdiction was not preempted by the Clean Air Act. Accordingly, the court affirmed the ruling of Federal Judge Chhabria in the Chevron case, and vacated Judge Alsup’s ruling in the BP case that he had jurisdiction to hear this case pursuant to federal common law, and then to dismiss it. The court also remanded the case to Judge Alsup, and directed him to determine if there was an “alternate basis” for federal court jurisdiction based on the pleadings that an issue of ”navigable waters” was a concern.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Hurricane Harvey Victims Face New Hurdles In Pursuing Coverage
September 07, 2017 —
Tred R. Eyerly - Insurance Law HawaiiJust as Hurricane Harvey departs the state, a new law in Texas, effective September 1, 2017, is going to make it more difficult for home and business owners to pursue claims against their insurance companies.
Prior Texas law imposed liability on an insurer who violated the Insurance Code for the amount of the claim, interest on the amount of the claim at an annual interest rate of 18 percent, and reasonable attorney fees. H.B. 1774 was recently enacted to address legal actions for claims arising from damage to or loss of property due to hailstorms, lightening, wind, hurricane, rainstorm and other natural events.
The bill creates additional procedural hurdles before a policy holder can file a lawsuit against the insurer. A written notice must be provided to the insurer at least 61 days before filing a lawsuit. The notice must include a statement of the acts giving rise to the claim, the specific amount alleged to be owed, and amount of reasonable and necessary attorney's fees already incurred by the policy holder. Once notice is received, the statute allows the insurers to send a written request to inspect, photograph, or evaluate the property.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Five-Step Protocol to Reopening a Business
August 03, 2020 —
Amy R. Patton & Rana Ayazi - Payne & FearsOver the past few months, guidance on how to create a safer, low-risk workplace has frequently changed. Fortunately, the state of California has finally reached a point where comprehensive and concrete advice is now available.
On June 24, 2020, the California Statewide Industry Guidance to Reduce Risk website was updated. In addition to providing industry-specific guidance and opening checklists for approximately 40 different industries, the website now unambiguously requires all businesses—regardless of which “phase” they reopen—to follow a five-step protocol (as described in greater detail throughout this article):
- Perform a detailed risk assessment and create a site-specific protection plan.
- Train employees on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home.
- Set up individual control measures and screenings.
- Put disinfection protocols in place.
- Establish physical distancing guidelines
Reprinted courtesy of
Amy R. Patton, Payne & Fears and
Rana Ayazi, Payne & Fears
Ms. Patton may be contacted at arp@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
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When is Mediation Appropriate for Your Construction Case?
May 07, 2015 —
Christopher G. Hill – Construction Law MusingsHere at Construction Law Musings, I have often discussed mediation as a good alternative to the expense and headaches of litigation. What I have discussed less often are the circumstances in which it is most appropriate to consider or even push for mediation.
The obvious and clearest time that mediation must be used is where the contract requires it. Many construction contracts, including those from the AIA (when the parties check the appropriate box) require mediation as a prerequisite to arbitration or litigation. As is almost always the case in Virginia, this clause will be enforced. In short, if your construction contract has such a clause, and despite my reservations about “mandatory mediation,” you need to at least go through the process before moving forward with your construction claim.
The more interesting case is where no such clause exists and the parties reach an impasse, sometimes prior to litigation and often after the filing of a construction complaint or demand for arbitration. What questions should you as a construction attorney be asking both to and about your construction clients before attempting mediation?
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Never, Ever, Ever Assume! (Or, How a Stuck Shoe is Like a Construction Project Assumption)
October 21, 2019 —
Melissa Dewey Brumback - Construction Law in North CarolinaThis summer, I had the fortune of taking a trip to Europe. The first place I visited was Amsterdam. A lovely town with a lot of culture and more canals than you can shake a stick at. I was meeting family there, but had hours to kill ahead of time. So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring.
My plan took its first misstep when I attempted to board the train. Not being in a hurry, I let the other passengers get on first. Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up. Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin. The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment. My shoe, however, was not quite as lucky. Part of my shoe made it inside, and part was outside the door.
No worry– just look for the door release mechanism, right? Wrong! There was none. The train started up, with my shoe still halfway in and halfway out of the train. (Luckily my foot itself made it inside all in one piece). The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station. In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and fuming that this was *not* the way I planned to start my vacation. Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew. Lesson learned.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
Policy Sublimit Does Not Apply to Business Interruption Loss
December 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiRefusing to give the sublimit in a flood policy an expansive reading, the court found that the sublimit did not apply to business interruption loss. Federal-Mogul Corp. v. Ins. Co. of Pa., 2015 U.S. Dist. LEXIS 137394 (E.D. Mich. Oct. 8, 2015).
The insured's facility in Thailand was damaged by flood. The parties stipulated that the insured suffered a loss of $64,500,000, which included $39,406,467 in property damage and $25,093,533 in time element loss (i.e., economic loss due to an inability to operate normally). The insurer paid $30 million, stating that the High Hazard flood zone provision in the policy limited the amount owed under the policy.
The insured argued the High Hazard sublimit applied only to physical loss or damage caused by the flood, and not to time element loss. Therefore, the insured was entitled to judgment on its time element loss claim for $29,093,533. The insurer argued it was entitled to judgment as a matter of law because the High Hazard sublimit applied to all loss caused by flood, including time element loss.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com