Rhode Island Finds Pollution Exclusion Ambiguous, Orders Coverage for Home Heating Oil Leak
March 06, 2023 —
Kayla S. O'Connor - Saxe Doernberger & Vita, P.C.The Rhode Island case of Regan Heating and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc., et. al.1 provides much-needed guidance regarding ambiguity and the term “pollution.”
In Regan, the Rhode Island Supreme Court held that a pollution exclusion contained in the Plaintiff’s “Commercial Package Policy” was ambiguous as to whether home heating oil that escaped into a customer’s basement constituted a “pollutant” under the policy.
This case stems from a 2015 incident wherein Regan was in the process of removing an older heating system and installing a new heating system in a customer’s home when that customer discovered 170 gallons of home heating oil in his basement. The customer sued Regan, alleging negligence and demanding remediation for the property damage caused by the oil leak.
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Kayla S. O'Connor, Saxe Doernberger & Vita, P.C.Ms. O'Connor may be contacted at
KOconnor@sdvlaw.com
Collaborating or Competing with Construction Tech Startups
November 15, 2017 —
Aarni Heiskanen - AEC BusinessI recently interviewed 20 experts and thought leaders about real estate and construction technology and innovation. Many of the interviewees talked about collaboration with startups and how to make the most of it.
There’s a growing interest in construction technology. Construction tech firms have garnered $10 billion in investment funding from 2011 through early 2017, according to McKinsey & Company. AngelList, a startup and investor website, currently features over 13,000 companies with “construction” as a keyword.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Not so Fast – Florida’s Legislature Overrules Gindel’s Pre-Suit Notice/Tolling Decision Related to the Construction Defect Statute of Repose
May 11, 2020 —
Rahul Gogineni - The Subrogation StrategistAs discussed in a prior blog post, in Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal held that when the plaintiffs provided a pre-suit notice in compliance with §558.004 of Florida’s construction defect Right-to-Cure statute, Fla. Stat. §§ 558.001 to 558.005, et. seq., they commenced a “civil action or proceeding,” i.e. an “action,” within the meaning of Florida’s construction defect Statute of Repose, Florida Statue § 95.11(3)(c). Thus, the court held that the plaintiffs commenced their action prior to the time Florida’s 10-year statute of repose period ended. In overturning the lower court’s dismissal of the action, the court found that because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, filing pre-suit notice of claim sufficiently constituted an “action” for purposes of Florida’s Statute of Repose.
For various reasons, the parties appealed the decision to the Supreme Court of Florida. In July of 2019, before the Florida Supreme Court could decide whether to hear the case, the Florida legislature passed legislation that effectively overruled the decision. To overrule the decision, the Florida Legislature modified § 558.004 of Florida’s Right-to-Cure statute to expressly state that a notice of claim served pursuant to the Right-to-Cure statute does not toll the 10-year statute of repose period for construction claims. See Fla. Stat.
§ 558.004(d).
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
Is Safety Compliance Putting Your Project in Jeopardy? Examining the Essentials of DOE’s Worker Safety and Health Program
July 02, 2024 —
Lucas T. Daniels & Benjamin J. Hochberg - ConsensusDocsMost contractors are familiar with the myriad of labor and safety regulations intended to safeguard the health and safety of workers. Many contractors will be equally familiar with the maze of forms and reports, the maintenance of safety personnel, safety walks and talks, and the many other measures intended to prevent and prepare for accidents. Less known among contractors and construction industry leaders is the regulatory framework establishing safety requirements and the ramifications of ignoring safety-related rules. Knowing and understanding the jurisdiction and authority of the agencies monitoring safety compliance on your project is critical to avoiding administrative ordeals and audits that could add days or weeks to your schedule and frustrate your staff.
The Department of Energy’s Worker Safety and Health Program
Under the Occupational Safety and Health Act of 1970, as amended (OSH), the Department of Labor’s Occupational Safety and Health Administration (OSHA) issues and enforces occupational health and safety regulations. OSHA, or a state with approval from OSHA, regulates the occupational health and safety of private sector employees unless another federal agency has and exercises its statutory authority to regulate. Several federal agencies have developed their own safety programs and conduct their own enforcement of those regulations independent of OSHA. For example, projects receiving funding from the Department of Energy (DOE) are subject to additional oversight of their safety programs by this agency. DOE directly manages its own Worker Safety and Health Program (WSHP), codified at 10 C.F.R. § 851, et seq., and will enforce compliance with its WSHP at all DOE sites. A “DOE site” is defined as a DOE-owned or -leased area or location or other area or location that DOE controls, where a contractor performs activities and operations in furtherance of a DOE mission. This broad definition encompasses a wide range of facilities and operations, including those not directly managed by the DOE but still under its control. The contractor at such a site must be aware of the specific requirements and procedures of the DOE under the WSHP and the ramifications of violating these regulations.
Reprinted courtesy of
Lucas T. Daniels, Peckar & Abramson, P.C and
Benjamin J. Hochberg, Peckar & Abramson, P.C
Mr. Daniels may be contacted at ldaniels@pecklaw.com
Mr. Hochberg may be contacted at bhochberg@pecklaw.com
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No Escape: California Court of Appeals Gives a Primary CGL Insurer’s “Other Insurance” Clause Two Thumbs Down
December 02, 2015 —
Yas Omidi – California Construction Law Blog“No Escape” is a 2015 action movie starring Pierce Brosnan and Owen Wilson (that’s right, Owen Wilson) and which the folks at rogerebert.com described as “a dreadful…would-be thriller” and “low-grade trash.”
It’s also, in short, the California Court of Appeal’s answer to a primary insurer’s recent bid to escape its duty to defend pursuant to an “other insurance” clause in a CGL policy in Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., Case No. D066615, California Court of Appeals for the Fourth District (October 23, 2015).
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Yas Omidi, California Construction Law BlogMs. Omidi may be contacted at
yomidi@wendel.com
Colorado’s Federal District Court Finds Carriers Have Joint and Several Defense Duties
October 10, 2013 —
Bret Cogdill — Higgins, Hopkins, McLain & Roswell, LLC.An issue that has plagued builders in Colorado construction defect litigation is the difficulty of getting additional insured carriers to fully participate in the builder’s defense, oftentimes leaving the builder to fund its own defense during the course of the litigation.
Many additional insurers offer a variety of positions regarding why they will not pay for fees and costs during the course of a lawsuit. Some insurers argue that, until after trial, it is impossible to determine its proper share of the defense, and therefore cannot make any payments until the liability is determined as to all of the potentially contributing policies. (This is often referred to as the “defense follows indemnity” approach.) Others may make an opening contribution to defense fees and costs, but fall silent as fees and costs accumulate. In such an event, the builder may be forced to fund all or part of its own defense, while the uncooperative additional insured carrier waits for the end of the lawsuit or is faced with other legal action before it makes other contributions.
Recent orders in two, currently ongoing, U.S. District Court cases provide clarity on the duty to defend in Colorado, holding that multiple insurers’ duty to defend is joint and several. The insured does not have to go without a defense while the various insurers argue amongst themselves as to which insurer pays what share.
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Bret CogdillBret Cogdill can be contacted at
cogdill@hhmrlaw.com
Insurer Not Bound by Decision in Underlying Case Where No Collateral Estoppel
February 25, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Eleventh Circuit determined that the trial court did not err by refusing to give preclusive effect to findings made in the underlying state-court action because there was no collateral estoppel. Nationwide Mut. Ins. Co. v. Sharif, 2014 U.S. App. LEXIS 2114 (11th Cir. Feb. 4, 2014).
Bashir's owned a grocery and was insured by Nationwide. The decedent was accidentally killed by a pistol stored under the cash register. The decedent's personal representative sued Bashir in state court. Nationwide declined to defend because it maintained that the employment exclusion applied to bar coverage.
The personal representative argued two alternative claims, the first assuming the decedent was not an employee of Bashir's and the second assuming that he was. The state court granted a motion to dismiss the second claim that the decedent was an employee. In a subsequent trial, judgment was awarded against Bashir and another defendant in the amount of $950,000.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Starting July 1, 2020 General Contractors are “Employers” for All Workers on Their Jobsite
June 08, 2020 —
Christopher G. Hill - Construction Law MusingsI have discussed the impactful legislation to the Virginia construction industry in prior posts here at Construction Law Musings. One of those statutes that will take effect on July 1, 2020 will fundamentally change the relationships between general contractors and their subcontractors and suppliers.
Senate Bill 838 does the following on construction projects with a value of $500,000 or greater that are not single family residential construction projects:
- Makes the general contractor, and all tiers of subcontractors on a particular project contractually liable to pay their subcontractors’ (at any tier) employees wages.
- Requires that the payments are equal or exceed those required by other statutes.
- Deems contractors to be the employers of their subcontractors’ employees for purposes of Va. Code Section 40.1-29 that imposes criminal and civil penalties for failure to pay wages when due, and
- Grants employees a private right of action for any violations, including the right to a class or joint action, award of liquidated damages, reasonable attorney fees and possible treble damages for “knowing” violations by the contractor.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
