Texas Federal Court Finds Total Pollution Exclusion Does Not Foreclose a Duty to Defend Waterway Degradation Lawsuit
October 24, 2022 —
Jeremy S. Macklin - Traub Lieberman Insurance Law BlogEvanston Ins Co. v. Tex. Concrete and Sand Gravel, Inc., No. 4:20-cv-00103 (S.D. Tex. Aug. 30, 2022) is a coverage dispute over Evanston Insurance Co.’s (“Evanston”) duty to defend and indemnify Texas Concrete Sand and Gravel, Inc. (“Texas Concrete”) and Apcon Services, LLC (“Apcon”) (collectively, the “Insureds”) for their contributions to the degradation of the waterways and retention lakes built to control flooding in the Houston area. On August 3, 2022, Magistrate Judge Yvonne Y. Ho recommended that Evanston’s motion for summary judgment be denied. On August 30, 2022, District Court Judge Alfred H. Bennett adopted Judge Ho’s Memorandum and Recommendations.
In 2017, Hurricane Harvey caused significant flooding of the Houston area, which resulted in large-scale property damage. The underlying lawsuits alleged that, since 1954, Lake Houston’s waterways sustained a steady decline in capacity because of the release of materials into the waterway system. The Insureds allegedly contributed to the decline by allowing “materials and substances” (such as processed water, silt, sand, sediment, dirt, rock, and aggregate) to run off their privately controlled properties and into the Houston waterways. The reduced capacity, allegedly caused in part by the Insureds, exacerbated the flooding after Hurricane Harvey hit, increasing the damage from the hurricane.
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Jeremy S. Macklin, Traub LiebermanMr. Macklin may be contacted at
jmacklin@tlsslaw.com
Construction Law Alert: Appellate Court Lets Broad General Release Stand in SB 800 Case
February 26, 2015 —
Steven M. Cvitanovic and Colin T. Murphy – Haight Brown & Bonesteel LLPUnder California's SB 800 "Right to Repair Act," a builder may obtain a "reasonable release" to resolve a construction defect claim in exchange for a cash payment. So, what's a "reasonable release" under SB 800? This question was answered by the Second Appellate District in the case of Belasco v. Wells (filed 2/17/2015, No. B254525).
Plaintiff David Belasco ("Plaintiff") purchased a newly constructed residence in 2004 from the builder defendant Gary Loren Wells ("Wells"). In 2006, Plaintiff filed a complaint against Wells with the Contractors' State License Board (the "Board") regarding certain alleged construction defects. The parties settled the 2006 action through written agreement that required Wells to pay Plaintiff $25,000 in consideration for Plaintiff executing a release and a Civil Code §1524 waiver of all known or unknown claims. In 2012, Plaintiff filed a subsequent action against Wells and Wells’ surety, American Contractors Indemnity Company ("American Contractors") (collectively "Defendants"), alleging a defect in the roof that was discovered by Plaintiff in 2011.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Colin T. Murphy, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Murphy may be contacted at cmurphy@hbblaw.com
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The Starter Apartment Is Nearly Extinct in San Francisco and New York
October 28, 2015 —
Patrick Clark – BloombergSo you’re looking for a one-bedroom apartment in San Francisco, and you have about $2,000 a month to spend. You know the city’s median rent is more than $4,200 a month, but median means half the apartments cost less. Surely there are larger, more expensive apartments pulling up the midpoint.
Perhaps. But there’s a reason Google employees are sleeping in their trucks.
Ninety-one percent of one-bedroom apartments in San Francisco cost more than $2,000 a month. Perhaps more surprising is the number of apartments that occupy the high end of rental rates: In Manhattan, a fifth of one-bedrooms rent for more than $4,000.
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Patrick Clark, Bloomberg
Contractual Assumption of Liability Does Not Bar Coverage
August 27, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Michigan Court of Appeals rejected the insurer's argument that coverage was barred for the insured's contractual assumption of liability of another. Travelers Prop. Cas. Co. of Am v. Peaker Serv., Inc., 2014 WL 3605680 (Mich. Ct. App. July 22, 2014).
The contractor was hired to install an "electronic over-speed system" at the University of Michigan. The hope was that the new system would prevent the steam turbines at the central power plant from turning too quickly. The parties' contract provided,
“Section 15.18. Supplier Damage to University Property. Without regard to any other section of the Agreement, Supplier shall be responsible for the costs to return to ‘as was’ condition from any damage caused to the building, grounds, or other equipment and furnishings caused in whole or part by Supplier Personnel while performing activities arising under this Agreement.”
The contractor improperly calibrated the system, causing one of the university's turbines to operate at twice the safe operational speed, causing significant damage to the generator equipment. The university sued the contractor for more than $3 million in damages. Travelers defended, but filed a declaratory judgment action, contending that coverage did not exist because the "contractual liability" exclusion applied. Section 15.18 of the contract purportedly constituted an "assumption" of the insured's own liability, and was therefore not covered under the CGL policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Congratulations to BWB&O for Ranking in The U.S. News – Best Lawyers ® as “Best Law Firms”!
November 19, 2021 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is proud to announce the firm has once again been regionally ranked by The U.S. News – Best Lawyers® with a “Best Law Firms” recognition in two practice areas, Family Law and Commercial Litigation. BWB&O is also honored to be included among many elite and extremely impressive groups of law firms! To read the Twelfth Edition of the “Best Law Firms” rankings, please click here.
Best Lawyers has a prominent reputation for being the most respected peer-review publication in the history of the legal profession. The “Best Law Firms” rankings are based on a rigorous evaluation process, which includes a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey, and Best Lawyers peer review.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Are Untimely Repairs an “Occurrence” Triggering CGL Coverage?
November 16, 2020 —
Christopher G. Hill - Construction Law MusingsAll Class A commercial contractors in Virginia are required to have a minimum level of Commercial General Liability (CGL) coverage. As a general rule, this insurance is there for damage to property or persons arising from an “occurrence” that is covered by the policy. Many cases that are litigated relating to coverage for certain events under a CGL policy turn on the definition of “occurrence” and whether the event leading to a request for coverage constitutes an “occurrence.”
A recent case in Fairfax County, Virginia, Erie Insurance Exchange v. Spalding Enterprises, et al., is just such a case. In the Spalding Enterprises case, the Court considered the following scenario. A homeowner, Mr. Yen contracted with Spalding Enterprises to fix some fire damage at his home. Spalding promised the repairs would be complete in October of 2019. However, after Mr. Yen paid a $300,000.00 deposit, Spalding Enterprises stated that the work would not be completed until November of 2019. Yen then fired Spalding Enterprises and sued for breach of contract, constructive fraud, and violation of the Virginia Consumer Protection Act. Spalding Enterprises sought coverage from Erie Insurance for the claim and Erie denied coverage and sought a declaratory judgment that the events alleged in the Complaint by Mr. Yen did not fall under the definition of “occurrence” in the CGL policy held by Spalding Enterprises.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Why Construction Law- An Update
May 07, 2015 —
Christopher G. Hill – Construction Law MusingsBack in 2009, only a year or so after my first post here at Musings, I posted on why I’m in the field of construction law. Well, a lot has happened in the over 5 years since then, not the least of which is my move to solo practice in July of 2010 and the later certification as a mediator. As I sit here, I look back at the passage of time and the events between my last thoughts on this subject and now and wonder if my thoughts have changed?
Frankly, not much has changed as far as my attitude toward the practice of construction law. Despite my kids occasionally rolling their eyes when I talk about a case of interest to me and their sometimes moniker for me as a “dirt lawyer,” I continue to find the representation of the construction professionals that I call clients and friends to be fulfilling and worthwhile. Even in the face of criticisms that we lawyers cause more problems that we solve, I firmly believe that I and other good construction lawyers can and do help avoid and anticipate more problems than I cause.
As one of the few solo construction attorneys here in the Richmond area, if anything, I am more involved in the construction community. Between my continued and even increased involvement with the AGC of Virginia and my more recent appointment to the board of the Virginia State Bar‘s Construction Law and Public Contracts Section, I have gained even more insight into the workings of the legal and business landscapes of construction. With each new piece of information gained by such involvement, I see another side to the business of construction that I may not have thought of.
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Christopher G. Hill, Construction Law MusingsMr. Hill may be contacted at
chrisghill@constructionlawva.com
Accident/Occurrence Requirement Does not Preclude Coverage for Vicarious Liability or Negligent Supervision
June 06, 2018 —
Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel, LLPIn Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc. (No. S236765, filed 6/4/18) (L&M), the California Supreme Court ruled that the liability insurance requirement that injury be caused by an “occurrence,” defined as an “accident,” does not preclude coverage of an employer’s independent tort liability for injury deliberately caused by its employee.
In L&M, Liberty insured a construction company that contracted to manage a construction project at a middle school in San Bernardino, California. A 13-year-old student subsequently sued the company in state court, alleging that she had been sexually molested by a company employee, Hecht. Among others, she alleged a cause of action for negligent hiring, retention and supervision of the employee. The construction company tendered to Liberty, which defended the employer under a reservation of rights while seeking declaratory relief in federal court. The district court granted summary judgment for Liberty, ruling that the injury was not caused by an “occurrence.” On appeal, the 9th Circuit Court of Appeals certified the question to the California Supreme Court as a matter of state law.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. 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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