Building on New Risks: Construction in the Age of Greening
February 20, 2023 —
Blanca Berruguete - Construction ExecutiveFire and explosions remain the No. 1 cause of construction and engineering insurance claims, accounting for 27% of the value of insurance claims over the last five years, according to industry claims data analysis conducted by global commercial insurer AGCS.
Natural catastrophes, such as hurricanes or floods, account for almost a fifth of claims by value (19%), followed by defective products (10%). Faulty workmanship or maintenance (8%) and machinery breakdown (7%) round out the top five causes of construction and engineering losses, according to the value of claims.
The Risks and Benefits of Greening
The analysis was conducted on 22,705 insurance claims made worldwide between January 2017 and December 2021. The claims were worth approximately $13.9 billion in value and include the share of other insurers as well as AGCS. But if there is an impression that the risks remain in stasis, that is not the case.
Reprinted courtesy of
Blanca Berruguete, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit
October 23, 2018 —
David Adelstein - Florida Construction Legal UpdatesPrior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132.
Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:
(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Massachusetts Judge Holds That Insurer Breached Its Duty To Defend Lawsuit After Chemical Spill
October 16, 2018 —
Lawrence J. Bracken, II & Alexander D. Russo - Hunton Insurance Recovery BlogA District Court Judge for the District of Massachusetts recently ruled that Ace Property and Casualty Insurance Co. breached its duty to defend its insured in a lawsuit brought by Plaistow Project, LLC, after a family owned laundromat leaked chemicals onto Plaistow Project’s property. Plaistow Project, LLC v. ACE Prop. & Cas. Ins. Co., No. 16-CV-11385-IT, 2018 WL 4357480, (D. Mass. Sept. 13, 2018). Plaistow Project sued State Line Laundry Services in state court, and ACE denied coverage under the pollution exclusion in State Line Laundry’s insurance policy. Plaistow Project then settled with State Line Laundry. Under the settlement terms, Plaistow Project was assigned State Line Laundry’s rights against ACE.
In the subsequent coverage litigation, Plaistow Project alleged that ACE had breached its duty to defend State Line Laundry under its insurance policy. ACE argued that (1) the burden was on the policyholder to demonstrate that the policy’s “sudden and accidental” exception applied to the policy’s pollution exclusion; and (2) the policyholder could not show the “sudden and accidental” exception applied based on the complaint.
Reprinted courtesy of
Lawrence J. Bracken, II, Hunton Andrews Kurth and
Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken, may be contacted at lbracken@HuntonAK.com
Mr. Russo may be contacted at arusso@HuntonAK.com
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Court Holds That Property Insurance Does Not Cover Economic Loss From Purchasing Counterfeit Vintage Wine
March 22, 2018 —
Christopher Kendrick and Valerie A. Moore – Publications & InsightsIn
Doyle v. Fireman's Fund Insurance Co. (No. G054197, filed 3/7/18), a California appeals court held that financial loss from purchasing counterfeit vintage wine was not direct and accidental loss or damage to covered property within the coverage of a valuable possessions property policy.
In
Doyle, the insured was a collector of rare, vintage wine that was housed in a wine storage facility. He had purchased nearly $18 million of purportedly rare, vintage wine from a dealer, and insured the collection under a valuable possessions policy. But a law enforcement investigation revealed that the dealer had been filling empty wine bottles with his own wine blend and affixing counterfeit labels. The dealer was convicted of fraud and was sent to prison for 10 years.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Judge Nixes SC's $100M Claim Over MOX Construction Delays
February 16, 2017 —
Engineering News-RecordA federal judge on Feb. 8 dismissed a claim by the state of South Carolina against the U.S. Dept. of Energy over delayed construction of the Mixed-Oxide Fuel Fabrication Facility, near Aiken, S.C. The claim for financial compensation was part of a lawsuit the state filed in February 2016 seeking payment of $1 million per day—or an annual maximum of $100 million—for the MOX facility not producing fuel by Jan. 1, 2016.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Connecticut Answers Critical Questions Regarding Scope of Collapse Coverage in Homeowners Policies in Insurers’ Favor
February 10, 2020 —
Kevin Sullivan - Traub LiebermanNationwide, homeowners’ insurers routinely face foundation wall collapse claims. But in Connecticut, where at least 30,000 homes are believed to have been constructed in the 1980s and 1990s with defective concrete, the scope of homeowners insurance for collapse claims has been a closely watched issue. In Jemiola v. Hartford Casualty Insurance Co., 2019 WL 5955904 (Conn. Nov. 12, 2019), the Supreme Court of Connecticut held that a collapse coverage grant requiring “an abrupt falling down or caving in of a building… with the result that the building… cannot be occupied for its intended purpose” is unambiguous and enforceable.
In Jemiola, the insured homeowner purchased her home in 1986 and insured it continuously with the same insurer. In 2006, the homeowner noticed cracking in a basement wall, and was informed that the cracking likely resulted from defective concrete used in the construction of the home. The homeowner made a claim under her policy’s collapse coverage, which the insurer denied because the cracking did not compromise the structural integrity of the foundation walls. In the resulting lawsuit, the insured’s expert opined that the defective concrete substantially impaired the foundation walls’ structural integrity, but that this impairment did not commence until 2006 when the homeowner first noticed the cracking. Accordingly, the court analyzed coverage under the collapse coverage grant in effect in 2006, which defined collapse to mean “an abrupt falling down or caving in of a building… with the result that the building… cannot be occupied for its intended purpose.”
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Kevin Sullivan, Traub LiebermanMr. Sullivan may be contacted at
ksullivan@tlsslaw.com
Tennessee Civil Engineers Give the State's Infrastructure a "C" Grade
December 05, 2022 —
American Society of Civil EngineersNASHVILLE, TN. — The Tennessee Section of the American Society of Civil Engineers (ASCE) released the 2022 Report Card for Tennessee's Infrastructure today, with 13 categories of infrastructure receiving an overall grade of a 'C', the same grade given by the section in its 2016 report. That means Tennessee's infrastructure is in mediocre condition and requires attention, but is a step ahead of the national average of "C-" given in the 2021 Report Card for America's Infrastructure. Tennessee's freight network is strong and plays a major role in the national economy as a key mobility hub and its energy grid has been reliable, allowing families and businesses to operate efficiently. Many of the state's systems are performing at or above national averages; however, a surge in population growth, increasingly severe weather impacts, and insufficient data on the current condition of several infrastructure sectors threaten the long-term viability of the state's overall network. Civil engineers graded aviation (C+), bridges (B), dams (D+), drinking water (C+), energy (C+), inland waterways (C), parks (C+), rail (C), roads (C), solid waste (C+), stormwater (C+), transit (D+), and wastewater (C-).
"As one of the most prominent mobility hubs in all of America, infrastructure is the backbone to all we do here in Memphis, and everything we can accomplish throughout the great state of Tennessee," said Memphis Mayor Jim Strickland. "Our airports, roads and bridges keep our economy flowing, drawing more jobs and businesses in the future. The ASCE report is a critical tool for tracking our progress, in addition to highlighting where we could use some work. With more people flocking to Tennessee than ever before, this is an exciting time and our infrastructure networks must be ready to help us capitalize on the opportunity."
To view the report card and all five categories, visit https://infrastructurereportcard.org/state-item/tennessee/.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Insurer’s Attempt to Shift Cost of Defense to Another Insurer Found Void as to Public Policy
June 09, 2016 —
Garret Murai – California Construction Law BlogWhile construction can sometimes be risky, construction litigation is almost always expensive. This volatile mix of risk and expense has made risk shifting, through indemnity and insurance, a primary goal and concern of project owners, contractors and suppliers alike. Construction insurers know this all too well and insurers, even between themselves, seek to shift risk.
As one primary insurer found, however, risk shifting provisions in their policies – specifically, one which sought to shift the cost of defense to another insurer – is not without its limitations.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com