Eleventh Circuit Upholds Coverage for Environmental Damage from Sewage, Concluding It is Not a “Pollutant”
May 24, 2018 —
Lorelie S. Masters & Alexander D. Russo - Hunton Insurance Recovery BlogOn April 20, 2018, the Eleventh Circuit affirmed an Alabama district court decision finding that an “absolute pollution exclusion” did not bar coverage for environmental property damage and injuries from a sewage leak. Evanston Ins. Co. v. J&J Cable Constr., LLC, No. 17-11188, 2018 WL 1887459, (11th Cir. Apr. 20, 2018).
J&J Cable was hired to install underground electrical conduit in a subdivision when it struck and broke the sewer pipe to two homes. As a result, sewage backed up into the homes causing property damage and personal injuries. The commercial general liability policy at issue contained an “absolute pollution exclusion,” which sought to bar coverage for “bodily injury” and “property damage” arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release or escape of “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The insurer relied on an earlier Alabama federal district court decision, which precluded coverage for liability from lead paint exposure, concluding that lead was a pollutant under a similar exclusion. The Eleventh Circuit disagreed, recognizing that insurance is a state law issue and opting instead to rely on binding state court precedent. The Eleventh Circuit, therefore, found that the decision in U.S. Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985), by the state’s highest court, the Alabama Supreme Court, governed. That case made a distinction between industrial waste and residential sewage. Accordingly, the Eleventh Circuit found that the “absolute pollution exclusion” did not preclude coverage for liability for injuries caused by sewage.
Reprinted courtesy of
Lorelie S. Masters , Hunton Andrews Kurth and
Alexander D. Russo , Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Russo may be contacted at arusso@huntonak.com
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Engineering, Architecture, and Modern Technology – An Interview with Dr. Jakob Strømann-Andersen
September 14, 2020 —
Aarni Heiskanen - AEC BusinessWe sat down with Dr. Jakob Strømann-Andersen of Henning Larsen’s Sustainability Engineering Department. Our talk covered the need for interdisciplinary research, sustainable practice, and how technology will lead change in the years ahead.
Can you tell us a bit about your professional background and what you’re currently working on?
I’m a partner with Henning Larsen and work with around 300 architects globally. We’re based in Copenhagen where we’re 200 people strong, with branches throughout the world. I’m a trained engineer with a civil engineering background – making me the first partner that’s not an architect. I’ve been with the company for 15 years and joined as an industrial research Ph.D. in Denmark. For my first three years here, I was employed as a researcher doing research and energy-efficient building design. And that’s where we started with our approach to sustainability.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Automating Your Home? There’s an App for That
April 03, 2013 —
CDJ STAFFWriting in the New York Times, Nick Wingfield looks at both the promise and failures of home automation, starting with a timer which had “buttons the size of a small seed” and was too difficult to reset. Wingfield said the timer “made my house dumber.”
He moves on to the useful items, such as the Nest thermostat, which improves on his previous programmable thermostat by being able to determine when people are actually home (so an empty house isn’t being heated) and it can be controlled from a smartphone app, useful for the taxi on the way home from the airport. The Belkin WeMo Switch allows users to control lamps from an iOS app and the timer functions can be accessed without having to use seed-sized buttons.
For those with bigger home automation budgets, there are now companies setting up whole house systems, including thermostat, light controls, motion detectors, surveillance cameras, and even monitors for your hot water heater and the level of carbon monoxide in your home. These systems start at around $1,500 but quickly go past $5,000. Other packages are sold on a month-by-month basis. And they include apps.
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July 1, 2015 Statutory Changes Affecting Virginia Contractors and Subcontractors
June 10, 2015 —
Christopher G. Hill – Construction Law MusingsAs always seems to be the case, this year, as in others, the Virginia General Assembly has seen fit to “tweak” a few construction related statutes. All of these changes will go into effect on July 1, 2015.
The big one, and one that I posted about a while back is the change to the Virginia mechanic’s lien statute to prohibit contractual waiver of lien, payment bond or claims for additional costs prior to the furnishing of labor or materials. This one is big because it relieves a bit of the angst in the pre-contract negotiations between subcontractors and general contractors.
Another significant change, this one to the wording of Virginia Code 2.2-4309, found in House Bill 1628, clarifies the fact that this Virginia statute does not limit the amount a government contractor may claim or recover against a public body under a contract dispute. This is a big one considering the ruling in the Carnell Construction Corp. v. Danville Redevelopment Housing Authority LLC limiting such claims.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Comparing Contracts: A Review of the AIA 201 and ConsensusDocs - Part I
March 22, 2018 —
Michael Sams and Amanda Cox – Construction Executive, A publication of Associated Builders and Contractors. All Rights Reserved.Here’s a helpful comparison of and analysis of some important contract sections in the
AIA 201 (2007 and 2017 versions) and
ConsensusDocs (2014 and 2017 versions). While not intended to be all inclusive, this summary comparison of the contract documents will run as a three-part series. Part I covers Financial Assurances, Design Risk, Project Management and Contract Administration. Part II will cover Schedule/Time, Consequential Damages/LDs, Claims and Disputes/ADR. Part III will cover Insurance and Indemnification and Payment.
FINANCIAL ASSURANCES
- What assurances are there that the owner can pay for the project?
- The Contractor should have the right to request and obtain proof that the Owner has funding sufficient to pay for the Work. The provision should also provide that the Contractor may terminate the Contract if the Owner refuses to allow a review of funding documents, or should the Contractor reasonably determine that the Owner does not have sufficient funds to pay for the Work.
Relevant Sections:
- A201 2007 Section 2.2.1; 2017 Section 2.2.1-2.2.2 A201
- 2014 & 2017 ConsensusDocs 200: Section 4.2
AIA:
- Section 2.2.1 A201 2007 & 2017: Both editions require the Owner, upon Contractor’s written request, to provide, “reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract.” Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. If the Owner does not comply, the Contractor may stop work.
- Additionally, A201 2017 Section 2.2.2 awards costs to the Contractor for demobilization and remobilization.
Reprinted courtesy of
Michael Sams , Kenney & Sams and
Amanda Cox, Kenney & Sams
Mr. Sams may be contacted at mpsams@KandSlegal.com
Ms. Cox may be contacted at ajcox@KandSlegal.com
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Risk Management for Condominium Conversions
July 31, 2013 —
David McLain, Higgings, Hopkins, McLain & Roswell, LLCOne of the bright spots in the Colorado construction industry over the last few years has been the construction of for-rent apartments. It seems as though apartments are going up everywhere you look along the Front Range. As market forces change, it will be interesting to see whether these units will remain apartments or whether they will be converted into for-sale condominiums or townhouses. One of the risk management strategies we have recently discussed with our general contractor clients who have been asked to build apartments is to ensure that the project remains a for-rent apartment project through the applicable statute of repose, conservatively assumed to be eight years. Unfortunately this is not always feasible, usually because the owner and/or lender are not interested in encumbering the property for such a long period of time, and want to retain the ability to convert the project if and when market forces allow, even if that is before the running of the statute of repose. The purpose of this article is to discuss the insurance and risk management ramifications of converting a project too early.
I have recently heard from several sources in the insurance industry that there are owners and contractors who are currently building apartments with the idea that they will be held as apartments for two to three years and then converted to for-sale condominiums or townhomes. While this strategy may have great appeal from a business point of view, it has a very serious risk management downside. Apparently, these owners and contractors are operating under the mistaken belief that they will have no liability exposure to the ultimate purchasers of the converted units or to the homeowners association for construction defects. This is an incorrect belief.
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David M. McLainDavid M. McLain can be contacted at
mclain@hhmrlaw.com
Affirmed: Nationwide Acted in Bad Faith by Failing to Settle Within Limits
July 19, 2017 —
Bethany Barrese – Saxe Doernberger & Vita, P.C.The Eleventh Circuit recently affirmed that Nationwide acted in bad faith by refusing to settle a claim against its insured for the policy limits, exposing the policyholder to an excess verdict.1
The case arose out of a 2005 automobile accident where Seung Park, who was insured by Nationwide, struck and killed another driver, Stacey Camacho. Shortly after the accident, Ms. Camacho’s estate issued a time-limited demand for the full limits of the policy Nationwide issued to Mr. Park, $100,000, to settle the case. After the deadline to respond to the demand expired, Nationwide rejected the demand and made a counteroffer. A settlement could not be reached and a wrongful death suit was filed against Mr. Park, resulting in a massive jury verdict of $5.83 million.
Following the jury verdict, Mr. Park assigned his rights against Nationwide to Ms. Camacho’s estate, which then filed claims for negligence and bad faith failure to settle against Nationwide. The case was tried to a jury, which found in favor of the estate.
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Bethany Barrese, Saxe Doernberger & Vita, P.C.Ms. Barrese may be contacted at
blb@sdvlaw.com
With No Evidence of COVID-19 Being Present, DC Trial Court Finds No Claim for Business Interruption
September 28, 2020 —
Tred R. Eyerly - Insurance Law HawaiiA D.C. Superior Court rejected a business interruption claim due to closures related to the COVID-19 pandemic. Rose's 1, LLC v. Erie Ins. Exchange, Civil Case No 2020 CA 002424 B (Order dated Aug. 8, 2020). The decision is here.
Plaintiffs owned a number of restaurants in the District of Coiumbia. Plaintiffs had commercial property coverage in a policy issued by Erie. The policy provided coverage for loss of income sustained due to interruption of business resulting directly from "loss or damage" to the insured property.
DC Mayor Bowser issued a series of orders in March 2020 which closed all non-essential businesses, including plaintiffs' restaurants. Plaintiffs filed claims with Erie. When coverage was denied, plaintiffs filed suit. Both sides moved for summary judgment.
The dispute centered on whether the closure of the restaurants due to the mayor's orders constituted a "direct physical loss" under the policy. Plaintiffs argued that the loss of use of the restaurants was "direct" because the closures were the direct result of the mayor's orders without intervening action. The court reasoned, however, that the orders were governmental edicts that commanded individuals and businesses to take certain actions. Standing alone and absent intervening actions by individuals and businesses, the orders did not effect any direct changes to the properties.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
