PA Superior Court Provides Clarification on Definition of CGL “Occurrence” When Property Damage Is Caused by Faulty Building Conditions
September 30, 2019 —
Anthony L. Miscioscia & Konrad R. Krebs - White and Williams LLPThe standard for an “occurrence” under a commercial general liability (CGL) insurance policy has been addressed on several occasions by Pennsylvania courts when an insured has allegedly performed faulty workmanship on a construction project. Specifically, in Pennsylvania, a claim for damages arising from an insured’s performance of faulty workmanship pursuant to a construction contract, where the only damage is to property supplied by the insured or worked on by the insured, does not constitute an “occurrence” under the standard commercial general liability insurance policy definition. But what about the circumstance when the insured has failed to perform contractual duties where the claim is for property damage to property not supplied by the insured or unrelated to the service the insured contracted to provide? The Pennsylvania Superior Court recently addressed this question in Pennsylvania Manufacturers Indemnity Co. v. Pottstown Industrial Complex LP, No. 3489 EDA 2018, 2019 Pa. Super. 223, 2019 Pa. Super. LEXIS 729* (Pa. Super. 2019).
Pottstown Industrial Complex arose out of an underlying dispute between a landlord and a commercial tenant who had leased space to store its product inventory. The tenant alleged that the landlord was responsible under the lease for keeping the roof “in serviceable condition in repair.” Notwithstanding this responsibility, the tenant alleged that the landlord failed to properly maintain and repair the roof, resulting in leaks and flooding during four separate rainstorms, destroying over $700,000 in inventory. The tenant specifically alleged that the floods were caused by poor caulking of the roof, gaps and separations in the roofing membrane, undersized drain openings, and accumulated debris and clogged drains.
The insurer filed a declaratory judgment action, seeking a determination that there was no coverage under a commercial general liability policy issued to the landlord. Following a motion for judgment on the pleadings, the trial court entered an order in favor of the insurer, holding that allegations of inadequate roof repairs were claims for faulty workmanship and were not covered under Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co., 908 A.2d 888 (Pa. 2006) and Millers Capital Insurance Co. v. Gambone Brothers Development Co., 941 A.2d 706 (Pa. Super. 2007).
Reprinted courtesy of
Anthony Miscioscia, White and Williams LLP and
Konrad Krebs, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Krebs may be contacted at krebsk@whiteandwilliams.com
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Licensing Reciprocity Comes to Virginia
May 15, 2023 —
Christopher G. Hill - Construction Law MusingsRemember my admonishment to get your
Virginia contractor’s license? Well, that will get easier for experienced construction professionals that hold a license from a state or territory outside of Virginia beginning on July 1, 2023. In this past session of the General Assembly, the Youngkin administration pushed and the legislature passed a universal licensure statute that (with some exceptions for professional services as defined in
Va. Code 2.2-4301) will allow those (including contractors) who are licensed in other states to use that license to obtain a Virginia license.
The
new legislation will require DPOR to recognize another state’s license where the contractor meets the following requirements:
- The individual holds a current and valid professional or occupational license or government certification in another state in a profession or occupation with a similar scope of practice, as determined by the board in the Commonwealth
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Project-Specific Commercial General Liability Insurance
May 13, 2019 —
Jeremiah M. Welch - Saxe Doernberger & Vita, P.C.Many markets which provide insurance for construction projects include an endorsement providing coverage for “repair work” as part of their standard policy. “Repair work” endorsements are largely misunderstood by policyholders and the insurance broker community. They are typically assumed to be coverage enhancements, but many provide no additional coverage and actually risk reduction of coverage otherwise provided as part of the products-completed operations (“PCO”) extensions also found in these project-specific policies. This article is designed to help the reader understand these endorsements so that better decisions can be made at the point of purchase.
Intent
The common feature of these endorsements is a grant of coverage for bodily injury and property damage resulting from “repair work” for a specified period of time. Most endorsements define “repair work” to mean the repair of completed work performed pursuant to a contract or warranty.
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Jeremiah M. Welch, Saxe Doernberger & Vita, P.C.Mr. Welch may be contacted at
jmw@sdvlaw.com
Anti-Fracking Win in N.Y. Court May Deal Blow to Industry
July 01, 2014 —
Chris Dolmetsch, Freeman Klopott and Jim Efstathiou Jr. – BloombergNew York’s cities and towns can block hydraulic fracturing within their borders, the state’s highest court ruled, dealing a blow to an industry awaiting Governor Andrew Cuomo’s decision on whether to lift a six-year-old statewide moratorium.
The case, closely watched by the energy industry, may invigorate local challenges to fracking in other states and convince the industry to stay out of New York even if Cuomo allows drilling. Pennsylvania’s highest court issued a similar ruling last year, striking down portions of a state law limiting localities’ ability to regulate drillers.
“This sends a really strong and clear message to the gas companies who have tried to buy their way into the state that these community concerns have to be addressed,” Katherine Nadeau, policy director for Environmental Advocates of New York, an anti-fracking group, said in a phone interview. “This will empower more communities nationwide.”
Mr. Dolmetsch may be contacted at cdolmetsch@bloomberg.net; Mr. Klopott may be contacted at fklopott@bloomberg.net; and Mr. Efstathiou Jr. may be contacted at jefstathiou@bloomberg.net
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Chris Dolmetsch, Freeman Klopott and Jim Efstathiou Jr., Bloomberg
Colorado’s Federal District Court Finds Carriers Have Joint and Several Defense Duties
July 31, 2013 —
Tred Eyerly, Insurance Law HawaiiAn 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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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Florida Enacts Sweeping Tort Reform Legislation, Raising Barriers to Insurance Coverage Claims
April 18, 2023 —
Walter J. Andrews, Andrea DeField & Jae Lynn Huckaba - Hunton Insurance Recovery BlogAs discussed in a recent
client alert, on March 24, 2023, Florida Governor Ron DeSantis signed House Bill (HB) 837 into law, making it more difficult and costly for insurance policyholders of all sizes to sue insurers for bad faith by eliminating fee-shifting for most policyholders and requiring something “more than” negligence for bad faith claims.
HB 837’s Impact on Insurance Coverage Claims:
HB 837 is another in a series of reform legislation recently passed in Florida that significantly impacts policyholders’ ability to hold their insurers accountable for the wrongful failure to pay benefits due under the insurance contract. Recent efforts include last year’s repeal of the one-way fee-shifting statute for claims brought under residential and commercial property insurance policies. Previously, the fee-shifting statute allowed policyholders to recover attorneys’ fees from their insurers when the policyholder prevailed in a coverage action. HB 837 repeals
Section 627.428 of the Florida Statutes entirely, extending the repeal of the one-way fee-shifting statute to all types of insurance coverage disputes—not just those under residential and commercial property insurance policies.
Reprinted courtesy of
Walter J. Andrews, Hunton Andrews Kurth,
Andrea DeField, Hunton Andrews Kurth and
Jae Lynn Huckaba, Hunton Andrews Kurth
Mr. Andrews may be contacted at wandrews@HuntonAK.com
Ms. DeField may be contacted at adefield@HuntonAK.com
Ms. Huckaba may be contacted at jhuckaba@HuntonAK.com
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Mediation in the Zero Sum World of Construction
October 02, 2015 —
Christopher G. Hill – Construction Law MusingsConstruction is a zero sum game. What do I mean by that? I mean that even where you, a construction professional with a great construction lawyer, have reviewed and edited a subcontract presented to you or provided a well drafted contract to the other party that contains an attorney fees provision, every dollar that you spend on litigation is a dollar less of profit.
Couple the fact that no construction company can or should bid or negotiate work with an eye toward litigation (aside from having a well written contract that will be enforced to the letter here in Virginia). Particularly on “low bid” type projects, contractors and subcontractors cannot “pad” their bids to take into account the possibility of attorney fees, arbitration, or litigation. Furthermore, the loss of productivity when your “back office” personnel are tied up dealing with discovery, phone calls, and other incidents of litigation that do nothing but rehash a bad project and increase the expense saps money from the bottom line. While the possibility of a judgment including attorney fees may soften this blow, you are still out the cash.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Perrin Construction Defect Claims & Trial Conference
June 11, 2018 —
Beverley BevenFlorez-CDJ STAFFRichard Glucksman, Esquire, Partner of the Los Angeles firm Chapman Glucksman Dean Roeb & Barger, will be moderating the panel, “Green Building/LEED: An Overview and Claims Discussion” at the Perrin Construction Defect Claims & Trial Conference in Las Vegas, Nevada. The panel will be discussing the following topics:
- Risk and claims case studies including solar and SIPs (Structural Insulated Panels)
- Green Building/LEED and The Law: Review of National Claims/Lawsuits
- AIA Documents for Sustainable Projects
Thursday, June 21st, 2018
Four Seasons Hotel
3960 S Las Vegas Blvd
Las Vegas, NV 89119
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