FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The Eighth Circuit determined a jury instruction regarding the applicability of the "all-risk" policy’s exclusion for "collapse" was inadequate. See KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 2011 U.S. App. LEXIS 22158 (8th Cir. Nov. 3, 2011).

KAAPA had nine large, cylindrical, stainless steel tanks fabricated at its location. Soon after operations began in 2003, some of the tanks experienced unusual movement and began to shift. A geotechnical engineer found "silty clay" had been used for infill instead of compacted granular fill called for in engineering drawings. A year long plan to repair all nine tanks was implemented.

Affiliated’s "all-risk" policy excluded damage caused by faulty workmanship. It also excluded damage caused by settling or cracking. The settling exclusion went on to provide, "This exclusion will not apply to loss or damage resulting from collapse of: a building or structure; or material part of a building or structure." Affiliated denied coverage because of the faulty workmanship and settling exclusions.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Existence of “Duty” in Negligence Action is Question of Law

February 06, 2019 — David Adelstein - Florida Construction Legal Updates
In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action. Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. See id. Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care. 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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Pollution Exclusion Bars Coverage for Inverse Condemnation Action

June 02, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The South Carolina Court of Appeals found there was no coverage for an inverse condemnation action based upon the policy's pollution exclusion. South Carolina Ins. Reserve Fund v. E. Richland County Public Service District, 2016 S. C. App. LEXIS 32 (S.C. Ct. App. March 23, 2016). In 2010, Coley Brown filed a complaint against the East Richland County Public Service District ("District") for inverse condemnation, trespass, and negligence. The complaint alleged that the District had installed a sewage force main line and an air relief valve on Brown's street, and the valve released offensive odors on his property many times a day. The stench caused Brown to buy a new piece of property and move, but he was unable to sell the old property. The district tendered the complaint to the South Carolina Insurance Reserve Fund ("Fund"), but coverage was denied. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Architect Sues over Bidding Procedure

November 13, 2013 — CDJ STAFF
The city of Louisville, Ohio is being sued by an architect who claims that city officials split projects into parts in order to circumvent state laws on public bidding. Rodney Meadows, the architect who filed the suit, also claims he is not motivated by any interest in working for the city. “I wouldn’t want to work with them,” he said. Nor is he seeking damages in the suit. The project at contention is Louisville’s renovations of an existing building for the Police Department. The city has spent $328,692 on the renovations, but state law says that projects costing more than $25,000 or $50,000 (depending on other matters) must be put out for public bidding. But city officials contend they haven’t broken the law. “A significant amount of work was done by our own people,” said E. Thomas Ault, the Louisville city manager. Read the court decision
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Dust Infiltration Due to Construction Defect Excluded from Policy

September 09, 2011 — CDJ STAFF

A summary judgment was affirmed in the case of Brown v. Farmers Group, by the California Court of Appeals. The Browns bought a new home in Oakley, California. At the time, they signed disclosure statement “acknowledging that the area around their home experienced gusty winds and would be in development for years to come, which might result in dust and airborne mold.”

The Browns found an unusual amount of dust in their home, which became worse when they ran their heating and air conditioning system. Shelia Brown was later diagnosed with chronic valley fever, which was attributed to airborne mold. The Browns contacted Farmers which investigated the house. Although the adjustor from Farmers said the Browns would be covered, Farmers denied the claim.

After the Browns moved out of the house, an inspector found that the HVAC line in the attic was disconnected, sending dust into the home. The Browns brought action against Mid-Century Insurance, which managed the policy, and Farmers. The identified the HVAC defect, window problems, and valley fever as causes, suing for breach of contact, breach of implied covenant of good faith and fair dealing, and the intentional infliction of emotional distress.

The court rejected all these claims. The policy with Farmers excluded losses due to defective construction. This ruled out the faulty HVAC system and any problems there might have been from the windows. The policy also specifically excluded losses from contamination, fungi, pathogens, and noxious substances. The court further found that the adjustor’s opinion was irrelevant to the question of what the policy actually covered. Finally, the court found no evidence of intentional infliction of emotional stress.

On review, the appeals court upheld the trial court’s conclusions and affirmed the summary judgment.

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First Circuit Finds No Coverage For Subcontracted Faulty Work

December 17, 2024 — Eric Hermanson & Austin Moody - White and Williams LLP
After almost two years' deliberation, the First Circuit last week issued its long-awaited decision in Admiral Ins. Co. v. Tocci Bldg. Corp.[1]: affirming on other grounds, and leaving in place a district court decision that found subcontracted faulty work was not an "occurrence" and did not lead to covered “property damage” under Massachusetts law. The decision leaves Massachusetts among a number of states where general contractors should not expect coverage from their commercial general liability (CGL) insurers for damage falling within the contractor’s scope of work. Since the "scope of work" – where general contractors are involved – often encompasses an entire project, contractors who want coverage in Massachusetts should take care to make alternative arrangements: transferring risk to subcontractors through indemnity provisions and additional-insured endorsements, or relying on other policy forms where available. Reprinted courtesy of Eric Hermanson, White and Williams LLP and Austin Moody, White and Williams LLP Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com Mr. Moody may be contacted at moodya@whiteandwilliams.com Read the court decision
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Mendocino Hospital Nearing Completion

December 04, 2013 — CDJ STAFF
The Frank R. Howard Memorial Hospital is well underway on its plans to move to a larger facility. The new building in Willits, California, will be more than twice the size of the old building at 74,000 square feet. Construction has reached the halfway point after just over three months of construction. Despite that, plans are to put the facility into use in January 2015. The general contractor for the project is HBE Corporation. Rick Bockmann, HBE’s chief executive officer, said that the hospital was “on schedule and on budget.” Read the court decision
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Power & Energy - Emerging Insurance Coverage Cases of Interest

November 30, 2020 — David G. Jordan & Tiffany Casanova - Saxe Doernberger & Vita, P.C.
The Power & Energy sector faces a multitude of risks that impact output and profitability, requiring sound risk management and robust insurance programs. As of recent, like most industries, there have been significant challenges facing the industry in light of COVID-19. These issues, including decreased product demand as well as supply- side issues, have been well documented. However, other issues continue to impact Power & Energy providers, with significant insurance coverage implications that are worthy of note. Below is a summary of three open cases of interest, where declaratory relief has been sought by energy providers’ insurance carriers, seeking an avoidance of coverage. 1. Fracking Dispute and “Intentional Acts” In the Texas case of The James River Insurance Co. v. Clearpoint Chemicals LLC et al., No. 4:20-cv-0076 (N.D.Tex), James River Insurance Company (“James River”) is asking a federal district court to declare that it does not owe defense or indemnity to its insured for acts it defines as both intentional and/or malicious acts. Reprinted courtesy of David G. Jordan, Saxe Doernberger & Vita, P.C. and Tiffany Casanova, Saxe Doernberger & Vita, P.C. Mr. Jordan may be contacted at DJordan@sdvlaw.com Ms. Casanova may be contacted at TCasanova@sdvlaw.com Read the court decision
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