Fairfield Connecticut Building Expert Directory

California Court Forces Insurer to Play Ball in COVID-19 Insurance Coverage Suit

December 13, 2022 — Latosha M. Ellis & Yosef Itkin - Hunton Insurance Recovery Blog
One of the threshold issues in COVID-19 insurance coverage cases that have been brought across the country is whether the policyholder’s allegations meet the applicable pleading standard in alleging that the virus caused physical loss or damage. In many cases, the courts have gotten it wrong, effectively holding policyholders to a higher standard than required. But recently, a California federal judge righted those wrongs by acknowledging the correct pleading standard in that case, which is whether the allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court, here, correctly recognized that the policyholder, the Los Angeles Lakers, met that pleading standard when it alleged that the COVID-19 virus can cause physical loss or damage by physically altering property. In its complaint, the Los Angeles Lakers alleged that the virus physically altered its property by changing its chemical and physical property conditions, creating viral vectors that required remedial measures before the property was safe again. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 591 F. Supp. 3d 672 (C.D. Cal. 2022), adhered to on reconsideration, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022). The Court agreed that these allegations by the Lakers adequately pled physical alteration to support a claim for property damage. The insurer requested reconsideration of the decision, and the Court emphatically affirmed its prior decision, explaining its rationale as follows: The Court lacks the scientific expertise necessary to conclude, based solely on the allegations in the FAC . . . that it is not plausible for the Lakers’ property to have been physically altered by the Virus, which the Lakers adequately alleged. Consequently, the Court, in the March 17 Order, concluded that the Lakers’ theory was plausible. Whether the Lakers can actually prove its theory will be determined at summary judgment or trial. Reprinted courtesy of Latosha M. Ellis, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Ms. Ellis may be contacted at lellis@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the court decision
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Anti-Concurrent Causation Clause Eliminates Loss from Hurricane

September 06, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The court found the insured was not covered for losses caused by Hurricane Laura due to the implementation of the policy's anti-concurrent causation clause. Aegis Sec. Ins. Co. v. Lejeune, 2021 U.S. Dist. LEXIS 106804 (W. D. La. June 7, 2021). At the time of the hurricane, the insureds' home was covered by a manufactured home insurance policy issued by Aegis. The policy excluded coverage for damage "caused by, contributed to or aggravated by" flooding. The policy's anti-concurrent causation clause read, "We do not pay for loss to the types of property covered under this policy caused by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss." The policy's exceptions followed. After the storm, the insureds submitted their claim. Aegis filed suit for declaratory judgment. Aegis relied upon reports that the manufactured home and barn owned by the insureds were damaged by winds, then displaced and destroyed by storm surge associated with the hurricane. The home first sustained damage from the storm's high winds before it was displaced from its concrete piers by a 12 to 16 foot storm surge. 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

Insurers May Not Be Required to Defend Contractors In a Florida §558 Proceeding

November 06, 2018 — Erik Simpson - Gordon & Rees Construction Law Blog
In recent holding, the Florida Supreme Court held that an insurer may not have a duty to defend a contractor in a Florida §558 proceeding. Chapter 558 of the Florida Statutes sets forth procedural requirements which must be met before a claimant may file a construction defect action. These requirements include serving a contractor, subcontractor or supplier with written notice of the claim. The contractor, in turn, must serve a written response to the notice of claim in which the contractor provides either an offer to repair the alleged construction defect at no cost to the claimant, resolution of the claim through a monetary payment, a statement disputing the claim, or a statement that any monetary payment will be determined by the recipient’s insurer. The claimant may file suit if the contractor disputes the claim and refuses to remedy the alleged defect or provide monetary compensation. Read the court decision
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Reprinted courtesy of Erik Simpson, Gordon & Rees
Mr. Simpson may be contacted at esimpson@grsm.com

Pending Sales of Existing Homes in U.S. Decline for Eighth Month

March 31, 2014 — Shobhana Chandra – Bloomberg
Contracts to purchase previously owned U.S. homes unexpectedly fell in February for an eighth straight month, a sign of further weakness in the industry. The index of pending home sales decreased 0.8 percent after a 0.2 percent drop the prior month that was previously reported as a gain, figures from the National Association of Realtors showed today in Washington. The median forecast of 39 economists surveyed by Bloomberg called for a 0.2 percent rise. Colder-than-normal weather probably played a role in discouraging prospective buyers faced with rising mortgage rates, higher prices and limited supply of cheaper properties. At the same time, the Realtors group said buyer traffic is stabilizing, which may help spur demand as temperatures warm. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg
Ms. Chandra may be contacted at schandra1@bloomberg.net

UPDATE - McMillin Albany LLC v. Superior Court

June 05, 2017 — Richard H. Glucksman, Glenn T. Barger, & David A. Napper - CGDRB News & Publications
The matter has been fully briefed since last year and the construction industry anxiously awaits the California Supreme Court's highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132. Numerous amicus briefs have also been filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB's Glenn T. Barger, Esq., listed as the attorney of record. The Supreme Court will consider the issue of whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003, thereby resolving the split of authority presented by the Fifth Appellate District's holding in McMillin Albany, which outright rejected the Fourth Appellate District's holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, on this particular issue. Oral argument is still pending and CGDRB will continue to closely monitor the progress of this case. Stay tuned. Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys Richard H. Glucksman, Glenn T. Barger and David A. Napper Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com Mr. Barger may be contacted at gbarger@cgdrblaw.com Mr. Napper may be contacted at dnapper@cgdrblaw.com Read the court decision
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Wilke Fleury Secures Bid Protest Denial

March 16, 2020 — Wilke Fleury LLP
After the City of Vacaville, following a sealed bid process, awarded a significant well drilling contract to Roadrunner Drilling & Pump Company, second-place bidder Nor-Cal Pump and Well Drilling filed a protest with the City on January 30, claiming that Roadrunner’s bid failed to meet certain requirements of the proposed contract. Roadrunner hired Wilke Fleury to defend the bid protest. After Wilke Fleury partner Dan Baxter transmitted a letter to the City explaining why the disgruntled bidder’s protest was factually and legally unsupported, the City—a mere nine days after receiving Dan’s letter—rejected the bid protest, and maintained its award of the project to Roadrunner as the lowest responsive and responsible bidder. Wilke Fleury LLP Read the full story... Read the court decision
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Ohio School Board and Contractor Meet to Discuss Alleged Defects

July 30, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Insurance News, The Greeneview School Board will be meeting with contractor Sfaffco Construction Inc. to discuss findings in a 122-page report produced by “Mays Consulting & Evaluation Services Inc. that outlines numerous alleged construction defects in the roofing system.” "It's really the first time we have everybody together to discuss the deficiencies," said Isaac Seevers, the Greeneview Local Schools superintendent told Insurance News. The school board estimates that the alleged problems will take up to $3.5 million to fix. Meanwhile, Staffco has hired their own consultant. "The report from Mays is one sided," Staffco President Jon Stafford said according to Insurance News. "We take issue with some of the findings in there." Read the court decision
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Parol Evidence can be Used to Defeat Fraudulent Lien

March 27, 2019 — David Adelstein - Florida Construction Legal Updates
Parol or extrinsic evidence can be used to defeat an argument that a lien is a fraudulent lien. And, just because a lien amount exceeds the total contract amount does not presumptively mean the lien is willfully exaggerated or recorded in bad faith. Finally, a ruling invalidating a construction lien can create the irreparable harm required to support a petition for writ of certiorari. All of these issues are important when dealing with and defending against a fraudulent lien and are explained in a recent case involving a dispute between an electrical subcontractor and its supplier. In Farrey’s Wholesale Hardware Co., Inc. v. Coltin Electrical Services, LLC, 44 Fla.L.Weekly D130a (Fla. 2d DCA 2019), there were various revisions to the supplier’s initial purchase order, both from a qualitative and quantitative perspective, and a ninth-revised purchaser order was issued and accepted. The electrical subcontractor claimed that deliveries were late, unassembled, and did not include the required marking (likely the UL marking), to pass building inspections. As a result, the subcontractor withheld money from the supplier and the supplier recorded a lien in the amount of $853,773.16 and filed a foreclosure lawsuit. 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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