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Traub Lieberman Attorneys Jessica Burtnett and Jessica Kull Obtain Dismissal of Claim Against Insurance Producer Based Upon Statute of Limitations

August 20, 2019 — Jessica Burtnett & Jessica N. Kull - Traub Lieberman
Traub Lieberman Straus & Shrewsberry attorneys Jessica Burtnett and Jessica Kull successfully obtained a dismissal with prejudice on behalf of their client after oral argument for a lawsuit filed in the Circuit Court of Cook County. Mrs. Burtnett and Ms. Kull represented an insurance broker who was sued by one of its customers, a property management company, for failure to procure a correct policy of insurance that would have provided coverage for an underlying class action lawsuit asserting statutory violations. In their motion, Mrs. Burtnett and Ms. Kull argued that the Plaintiff failed to file the lawsuit within the applicable two year statute of limitations outlined in the Illinois Insurance Producers Act 735 ILCS 5/13-214.4. Based on a recent ruling by the Illinois Supreme Court in the case of Am. Family Mut. Ins. Co. v. Krop, 2018 IL 122556, ¶ 13, reh’g denied (Nov. 26, 2018), Mrs. Burtnett and Ms. Kull argued that the statute of limitations began to accrue at the moment the allegedly non-conforming policy was delivered to the customer Plaintiff. In this case, Mrs. Burtnett and Ms. Kull argued that the subject policy was purchased and received before it became effective on November 25, 2015. Thus, at the absolute latest, the statute of limitations expired two years later on November 25, 2017. Since the lawsuit was not filed until October 4, 2018, the Plaintiff was approximately 10 months too late to assert a valid claim. In response, the Plaintiff tried to factually distinguish the Krop case by arguing it involved a claim against a captive agent rather than a broker. Plaintiff further argued that a broker maintains a fiduciary duty to its clients and, therefore, the two year statute of limitations applied in Krop did not apply to a broker. Plaintiff also argued the Illinois Insurance Placement Liability Act was unconstitutional. Reprinted courtesy of Jessica Burtnett, Traub Lieberman and Jessica N. Kull, Traub Lieberman Ms. Burtnett may be contacted at jburtnett@tlsslaw.com Ms. Kull may be contacted at jkull@tlsslaw.com Read the court decision
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CGL Policies and the Professional Liabilities Exclusion

August 14, 2018 — David Adelstein - Florida Construction Legal Updates
Commercial general liability (CGL) policies for contractors traditionally contain a professional liabilities exclusion. This exclusion is generally added through a specific endorsement to eliminate coverage for professional services. Read the endorsement The point of the exclusion, in a nutshell, is simply to eliminate a CGL policy for a contractor serving as a professional liability policy. Contractors need to appreciate a professional liabilities exclusion added through endorsement because oftentimes there are delegated design components they are responsible for. Perhaps the contractor value engineered a system and is responsible for engineering and signing and sealing the engineered documents (through its subcontractor) associated with that system. Perhaps there is a performance specification that requires the contractor to engineer a system. Perhaps there is a design-build component. Regardless of the circumstance, this professional liabilities exclusion can certainly come into play, particularly if a defect is raised with the design or professional services associated with the engineered system. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Firm Seeks to Squash Subpoena in Coverage CD Case

May 20, 2015 — Beverley BevenFlorez-CDJ STAFF
According to the New Jersey Law Journal, the insurance firm Carroll McNulty & Kull was “subpoenaed in connection with an out-of-state coverage dispute stemming from construction litigation that yielded a $55 million verdict," and "is fighting a demand that it hand over its file.” Carroll McNulty & Kull told the New Jersey Law Journal that “the subpoena ‘is a transparent attempt to obtain documents ordinarily protected by the attorney-client privilege and work product doctrine.” The New Jersey Law Journal reported that the subpoena “seeks ‘your entire file for the time period beginning Oct. 1, 2012, and ending June 19, 2014, pertaining in any manner to insurance policies issued by Crum and Forster Specialty Insurance Company.’ Included in the demand are ‘all handwritten or electronically stored notes; electronic and other communications,’ ‘emails and all attachments to those emails, time records, and bills,’ and ‘any documents and materials reviewed.’” U.S. District Judge Peter Sheridan has been assigned the motion to quash. Read the court decision
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Insureds Survive Summary Judgment on Coverage for Hurricane Loss

June 19, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The magistrate judge recommended that the insurer's motion for summary judgment be denied, finding a material issue of fact regard the cause of loss after Hurricanes Laura and Delta. Armstrong v. Amguard Ins Co., 2023 U.S. Dist. LEXIS 76869 (E.D. Texas, April 14, 2023). The policy excluded damage caused by wear and tear, differential foundation movement, as-built deficiencies, manual damage, and pre-existing conditions. Texas applied the doctrine of concurrence causes, meaning if damages were due to both covered and non-covered causes of loss, the insureds had to segregate the damage caused by covered causes of loss from the damage caused by non-covered causes of loss. Coverage was denied and the insureds filed suit. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Construction Defect or Just Punch List?

December 11, 2013 — CDJ STAFF
A couple in Dickinson, North Dakota have put big, green “buyer beware” signs on their home. They’re not planning on selling, but just trying to warn prospective neighbors of the problems they’ve had since moving into their new home. Andrea Thermes said her problems included leaking windows and uneven floors. “I absolutely love my house,” she said. “If we didn’t have the issues, I would be the happiest girl in the world.” One problem was a leaking picture window in her living room. The builder replaced it, but the first window that arrived was the wrong size. The new home is still under a warranty and the builder has been fixing issues as they arise. “They are upset with some of the problems they have had,” said William Henry, president of B-Dev, the builder of the home. Since Ms. Thermes’s window wasn’t repaired in time for Thanksgiving, Mr. Henry sent wine and beer to her home. “Not that that makes up for not having their window, but we’re trying to make this work and trying to appease them,” he said. But Mr. Henry said that some of the problems “are not really material defects,” characterizing them as “punch-list and warranty items.” Read the court decision
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A Downside of Associational Standing - HOA's Claims Against Subcontractors Barred by Statute of Limitations

March 28, 2012 — Bret Cogdill, Colorado Construction Litigation

In multi-family construction defect litigation in Colorado, homeowners associations rely on associational standing to pursue claims affecting more than two units and to bring claims covering an entire development. This practice broadens an association’s case beyond what individual, aggrieved owners would otherwise bring on their own against a developer or builder-vendor. However, reliance on associational standing to combine homeowners’ defect claims into a single lawsuit has its drawbacks to homeowners.



A recent order in the case Villa Mirage Condominium Owners’ Association, Inc., v. Stetson 162, LLC, et al., in El Paso County District Court, presents an example. There, the HOA unsuccessfully sought a determination from the court that its claims against subcontractors were not barred by the statute of limitations. To do so, the HOAs attempted to apply the Colorado Common Interest Ownership Act (“CCIOA”), which governs the creation and operation of HOAs, and a statute intended to apply to persons under a legal disability.



Under CCIOA, during the period of “declarant control” the developer may appoint members to the association’s executive board until sufficient homeowners have moved into the development and taken seats on the board.

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Reprinted courtesy of Bret Cogdill of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Cogdill can be contacted at cogdill@hhmrlaw.com.

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Contract’s Definition of “Substantial Completion” Does Not Apply to Third Party for Purposes of SOL, Holds Court of Appeal

June 15, 2020 — Garret Murai - California Construction Law Blog
Those of you in the construction industry know that the two primary statutes of limitation are the 4-year year statute of limitations for patent defects and 10-year statute of limitations for latent defects. Both statutes begin to run on “substantial completion.” In Hensel Phelps Construction Co. v. Superior Court of San Diego, Case No. D076264 (January 22, 2020), the 4th District Court of Appeal examined whether the term “substantial completion,” as used in Civil Code section 941, which applies to residential construction, can be defined by the parties’ contract and applied to third-parties. The Hensel Phelps Case Hensel Phelps Construction Co. entered into a prime construction contract with the owner and developer of a mixed-use project in San Diego. Hensel Phelps was the general contractor on the project. The project included a residential condominium tower which would eventually be managed and maintained by Smart Corner Owners Association. Smart Corners was not a party to the contract. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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New Orleans Reviews System After Storm Swamps Pumps

August 17, 2017 — Pam Radtke Russell - Engineering News-Record
The city of New Orleans will hire an independent team of engineers to evaluate the problems that led to severe flooding following an Aug. 5 rainfall of up to 10 in. The decision followed the revelation that 16 of the city’s pumps were not working, despite claims the system was at capacity. Further, the power system that operates those pumps was severely crippled. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

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