FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

OH Supreme Court Rules Against General Contractor in Construction Defect Coverage Dispute

October 30, 2018 — Theresa A. Guertin - Saxe Doernberger & Vita, P.C.
On October 9, 2018, the Ohio Supreme Court issued a decision in Ohio Northern University v. Charles Construction Services, Inc., Slip Op. 2018-Ohio-4057, finding that a general contractor was not entitled to defense or indemnity from its CGL insurer in a construction defect suit brought by a project owner post-project completion. With this decision, Ohio has solidified its place amongst a diminishing number of states, including Pennsylvania and Kentucky, which hold that there is no coverage for defective construction claims because those losses do not present the level of fortuity required to trigger CGL coverage. This places Ohio amongst the worst in the country on this issue at a time when numerous states have abandoned old precedent and moved towards a policyholder friendly analysis. Ohio Northern University (“ONU”) hired Charles Construction Services, Inc. (“CCS”) to construct the University Inn and Conference Center, a new hotel and conference center on their campus in Ada, Ohio. CCS purchased CGL insurance from Cincinnati Insurance Company (“CIC”) insuring the project. Following completion of the project, ONU sued CCS alleging defects in the construction of the completed project, including allegations that windows improperly installed by one subcontractor led to damage to walls built by another subcontractor. CIC agreed to defend CCS under a reservation of rights but intervened in the action between ONU and CCS to pursue a declaratory judgment that it had no obligation to defend or indemnify its insured for the alleged losses. Read the court decision
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Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C.
Ms. Guertin may be contacted at tag@sdvlaw.com

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Differing Rulings On Construction Defect Claims Leave Unanswered Questions For Builders, and Construction Practice Groups. Impact to CGL Carriers, General Contractors, Builders Remains Unclear

March 07, 2011 — CDJ STAFF

In the past year a number of state and federal courts have rendered a number of conflicting decisions that promise to alter or perhaps shift entirely the paradigm, of how builders manage risk.



According to a report today by Dave Lenckus in Property Casualty 360 “Nine state and federal courts and one state legislature over the past year have addressed whether a construction defect a defective product or faulty workmanship is fortuitous and therefore an occurrence under the commercial general liability insurance policy. Four jurisdictions determined it is; three said no; two ruled that a construction defect that causes consequential damage to property other than the work product is an occurrence; and one federal court contributed its conflicting case law that has developed in Oregon since its high court ruled in 2000 that a construction defect is not an occurrence”.



The article strongly suggests that in the absence of a clear consensus over what the recent rulings mean for builders and contractors coverage disputes will intensify and continue to proliferate.



Doing this on a state-by-state basis has caused a lot of confusion among buyers and sellers, said Jeffrey A. Segall, a Tampa-based senior vice president and the Florida Construction Practice leader at Willis of Florida, a unit of Willis Group Holdings.



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The Future of Construction Defects in Utah Unclear

December 11, 2013 — CDJ STAFF
In recent years, more courts have started to view construction defects as accidents, covered under insurance policies. In a post on the Parr Brown Gee & Loveless web site, Jeffrey D. Stevens writes that “the number of courts siding with insurance companies to deny contractors and subcontractors insurance coverage in construction defect lawsuits has been shrinking.” Recently, the Supreme Court of West Virginia “switched sides on this issue completely.” The Utah Supreme Court has not made a ruling on this, but the Federal District Court for the District of Utah and the Tenth Circuit have looked at Utah law and concluded that “under Utah law damage caused by construction defects is not accidental.” But in another case, “the district court determined that property damage allegedly caused by defective or defectively installed windows was caused by an accident.” Mr. Stevens thinks that “it is likely” that the Utah Supreme Court “will follow the increasing number of courts that have held that damage caused by construction defects is an accident for insurance purposes. Read the court decision
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White and Williams LLP Secures Affirmation of Denial to Change Trial Settings Based on Plaintiffs’ Failure to Meet the Texas Causation Standard for Asbestos Cases

July 06, 2020 — Christian Singewald & Rochelle Gumapac - White and Williams LLP
The Delaware Supreme Court, in a rare split opinion, affirmed the trial court’s denial of Plaintiffs’ Request to Change Trial Settings in favor of all defendants, including a major automotive manufacturer represented by White and Williams LLP, in a mesothelioma case with a young decedent who had an alleged economic loss claim exceeding $9,000,000, in Shaw v. American Friction, Inc. et al., No. 86, 2019. This decision operates to dismiss all of Plaintiffs’ claims based on their failure to meet Delaware’s strict expert deadlines and establish a prima facie case under Texas law. Plaintiffs’ Complaint invoked the application of Texas substantive law and alleged that multiple manufacturers were negligent and strictly liable for failing to warn the decedent of the alleged dangers posed by the use of asbestos-containing products. Plaintiffs’ alleged asbestos exposures from defendants’ products caused Mr. Shaw’s disease and subsequent death. In 2007, Texas instituted its now well-known causation requirement, which requires the “dose” of asbestos exposure from each defendant’s products to be quantified by an expert. Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007). Prior to decedent’s death, Plaintiffs’ counsel deposed decedent and his father for product identification purposes. During the depositions, Plaintiffs’ counsel failed to obtain the necessary factual information from his clients for an expert to be able to opine as to alleged exposure doses from any defendant’s product. Despite lacking the requisite information for a prima facie case under Texas law, Plaintiffs sought and were given placement in an expedited trial setting, which had strict, defined deadlines. Reprinted courtesy of Christian Singewald, White and Williams LLP and Rochelle Gumapac, White and Williams LLP Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com Ms. Gumapac may be contacted at gumapacr@whiteandwilliams.com Read the court decision
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Construction Defects Uncertain Role in Coverage in Pennsylvania

February 04, 2013 — CDJ STAFF
Douglas E. Cameron, Jay M. Levin, and Traci S. Rea look at the implications of a pair of Pennsylvania court decisions from 2012. The judge in both cases, Judge Wettick of the Allegheny County Court of Common Pleas held that comprehensive general liability policies do not cover any claims that arise from faulty workmanship. The three conclude that "these holdings may preclude coverage for any tort claims asserted against your company if the allegations involve construction defects, even if you are sued for property damage or personal injury by a third party to your construction contract." They note that both decisions have been appealed to the Pennsylvania Superior Court. Read the court decision
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Denver Passed the Inclusionary Housing Ordinance

August 27, 2014 — Beverley BevenFlorez-CDJ STAFF
ABC 7 reported that Denver, Colorado has passed a city ordinance that will require “developers building 30 or more units to offer 10 percent of them at a cheaper rate.” The Inclusionary Housing Ordinance is meant to increase the number of homes for “middle income earners.” "This city is really facing a housing crisis when it comes to affordability," Samaria Crews, deputy director of the Front Range Economic Strategy Center, told ABC 7. Builders can opt out of the ordinance by paying a fee, and a “new amendment would allow builders to build the low-income inventory off-site.” Read the court decision
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Crane Firm Pulled Off NYC Projects Following Multiple Incidents

October 07, 2019 — Jeff Rubenstone - Engineering News-Record
Following a partial crane collapse at a site on Manhattan’s Lower East Side and a fatality in April on a jobsite in lower Manhattan, the New York City Dept. of Buildings announced on Aug. 12 that it is suspending United Crane & Rigging’s work on 21 construction sites across the city. Jeff Rubenstone, Engineering News-Record Mr. Rubenstone may be contacted at rubenstonej@enr.com Read the court decision
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Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss

July 01, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019). Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly. In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs. 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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