Seattle Washington Building Expert Directory

Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?

March 17, 2011 — Shaun McParland Baldwin

The Court of Appeals of Indiana recently addressed the “Montrose” language added to the CGL ISO form in 2001 in the context of a construction defect claim where a fractured storm drain caused significant flooding a year after the drain was damaged. The insuring agreement requires that “bodily injury” or “property damage” be caused by an “occurrence” and that the “bodily injury” or “property damage” occur during the policy period. The Montrose language adds that the insurance applies only if, prior to the policy period, no insured knew that the “bodily injury” or “property damage” had occurred in whole or in part. Significantly, it also states that any “bodily injury“ or “property damage” which occurs during the policy period and was not, prior to the policy period known to have occurred, includes a continuation, change or resumption of that “bodily injury” or “property damage” after the end of the policy period.

In Grange Mutual Cas. Co. v. West Bend Mut. Ins. Co., No. 29D04-0706-PL-1112 (Ct. App. IN March 15, 2011), http://www.ai.org/judiciary/opinions/pdf/03151109ehf.pdf, Sullivan was the General Contractor for a school construction project. Its subcontractor, McCurdy, installed the storm drain pipes. One of the storm pipes was fractured in 2005 while McCurdy was doing its installation work. More than a year later, the school experienced significant water damage due to flooding. It was later discovered that the flooding was due to the fractured storm drain. Sullivan’s insurer paid $146,403 for the water damage. That insurer brought a subrogation claim against McCurdy and its two insurers: West Bend and Grange. West Bend had issued CGL coverage to McCurdy while the construction was ongoing , including the date in which the storm pipe was fractured. Grange issued CGL coverage to McCurdy at the time of the flooding. Those two carriers jointly settled the subrogation claim and then litigated which insurer actually owed coverage for the loss. Significantly, the loss that was paid included only damages from the flooding, not any damages for the cost of repairing the pipe.

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Reprinted courtesy of Shaun McParland Baldwin of Tressler LLP. Ms Baldwin can be contacted at sbaldwin@tresslerllp.com

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New York High Court: “Issued or Delivered” Includes Policies Insuring Risks in New York

December 20, 2017 — Bethany Barrese & Samantha Martino - Case Alert Blog
On November 20th, the New York Court of Appeals reinstated a case seeking more than six million dollars in damages against the insurers for DHL Worldwide Express Inc. (“DHL”), originating from a fatal head-on car crash between Claudia Carlson and a truck owned by MVP Delivery and Logistics Inc. (“MVP”), a DHL contractor. The truck, which bore DHL’s logo, was owned by MVP and driven by an MVP employee. The MVP employee was running an errand unrelated to his job at the time of the accident. Mrs. Carlson’s husband sued the employee, DHL, and MVP. The jury award of $20 million was reduced to $7.3 million by the Appellate Division. MVP’s insurer paid Mr. Carlson just over $1 million, and the employee assigned his rights to any other insurance coverage to Mr. Carlson Mr. Carlson sued DHL and its insurers, seeking the balance of the outstanding judgment pursuant to New York Insurance Law § 3420. The defendants successfully moved to dismiss Mr. Carlson’s claims, which dismissal was affirmed by the Appellate Division on the basis that § 3420 did not apply since the policies in question were not “issued or delivered” in New York; they had been issued in New Jersey and delivered in Washington and Florida. The Court of Appeals was subsequently presented with two questions: (1) whether the DHL policies fell within the purview of Insurance Law § 3420 as policies “issued or delivered” in New York; and (2) whether MVP was an “insured” pursuant to the “hired auto” provisions of DHL’s policies. Reprinted courtesy of Bethany Barrese, Saxe Doernberger & Vita, P.C. and Samantha Martino, Saxe Doernberger & Vita, P.C. Ms. Barrese may be contacted at blb@sdvlaw.com Ms. Martino may be contacted at smm@sdvlaw.com Read the court decision
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Does Stricter Decertification Mean More “Leedigation?”

August 04, 2015 — Christopher G. Hill – Construction Law Musings
Recently, my friend and fellow construction attorney/consultant, Chris Cheatham (@chrischeatham) posted the news that USGBC will be more stringent on the de-certification front. This statement relates to the continued energy performance of LEED certified buildings and increases the likelihood that energy performance (as opposed to mere reporting) could lead to de-certification. I have discussed on several occasions the potential legal risks relating to green building. One of the big potential sources for such litigation (or “leedigation” as coined by Mr. Cheatham) is the possible de-certification of a previously certified building. With this latest statement by USGBC the specter of such de-certification seems even stronger. Couple this potential with the fact that anyone can challenge the certification of a building at any time and contractors, subcontractors and other construction professionals face potential liability for the performance of a building in ways well beyond their control. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

EPA Announces Decision to Retain Current Position on RCRA Regulation of Oil and Gas Production Wastes

June 03, 2019 — Anthony B. Cavender - Gravel2Gavel
After much study, EPA has decided against changing its current RCRA Subtitle D rules affecting the state regulation of oil and gas exploration & production waste. Since 1988, EPA has determined that most such wastes should be regulated as only non-hazardous wastes subject to RCRA Subtitle D, and not the more onerous hazardous waste provisions of RCRA Subtitle C. (See the Regulatory Determination of Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 FR 25,446 (July 6,1988).) As a result, under the Subtitle D rules, the primary regulators of such waste are state regulatory agencies, which follow the state plan non-hazardous waste guidelines developed by EPA. This regulatory disposition has proven to be fairly controversial, and it was recently challenged in a lawsuit filed in the U.S. District Court for the District of Columbia: Environmental Integrity Project, et al. v. McCarthy. To settle this lawsuit, EPA and the plaintiffs entered into a consent decree by which EPA was to make certain determinations about the future of the program after conducting an appropriate study. That study, Management of Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action, has been completed, and it concludes, after a fairly comprehensive review of these state regulatory programs, that “revisions to the federal regulations for the management of E&P wastes under Subtitle D of RCRA (40 CFR Part 257) are not necessary at this time.” In a statement released on April 23, 2019, EPA accepted these findings and promised that it would continue to work with states and other stakeholders to identify areas for improvement and to address emerging issues to ensure that exploration, development and production wastes “continue to be managed in a manner that is protective of human health and the environment.” Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

CSLB Reminds California Public Works Contractors to Renew Their Public Works Registration

October 02, 2015 — Garret Murai – California Construction Law Blog
A friendly reminder from the Contractors State License Board . . . CSLB Urges Public Works Contractors to Renew Dept. of Industrial Relations Registration before October 1 to Avoid Hefty Penalty SACRAMENTO — A mandatory renewal deadline is approaching for licensees who work on public works projects. Contractors whose registration with the California Department of Industrial Relations (DIR) expired June 30, 2015, and have ongoing public works projects or plan to bid on new ones, must pay the $300 renewal fee before October 1, 2015, or face an additional $2,000 late penalty after that date. As a result of Senate Bill (SB) 854, all contractors have been required since April 1, 2015, to register with DIR to be awarded a public works contract, even if the project did not go out to bid. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

No Duty to Defend Under Pollution Policy

February 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found there was no duty to defend or indemnify under a pollution policy for claims arising from a building fire. URS Corp. v. Zurich Am Ins. Co., 2014 N.Y. Misc. LEXIS 222 (N.Y. Sup. Ct. Jan. 16, 2014). Two firemen were killed while fighting a fire at the Deutsch Bank building in New York City. The owner of the building, URS, was sued by the estates of the two deceased firemen and other firemen who were injured by the fire. URS was an additional insured under a contractors pollution liability policy issued by Hudson Specialty Insurance Company. The policy promised to pay for damages to the insured "if the damages result from a pollution condition." "Pollution condition" was defined as "the discharge, dispersal, release or escape of smoke, vapors, fumes, acids, alkalis, toxic chemicals, [etc.]" The policy explicitly noted that it did not provide commercial general liability coverage. Hudson denied coverage and URS sued. 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

Champagne Wishes and Caviar Dreams. Unlicensed Contractor Takes the Cake

August 31, 2020 — Garret Murai - California Construction Law Blog
Before the Kardashians, before Empire, before Crazy Rich Asians there was Lifestyles of the Rich and Famous with Robin Leach. The next case, Moore v. Teed, Case No. A153523 (April 24, 2020), 1st District Court of Appeals, is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.” Moore v. Teed The $13 Million Dollar “Fixer Upper” Justin Moore just wanted to buy a house in San Francisco. But he couldn’t afford one in the neighborhoods he preferred. But in 2011, luck struck, when Moore met Richard Teed, a real estate agent with “over 25 years of experience as a building contractor,” “an extensive background in historic restorations” and a “deep understanding of quality construction.” Teed told Moore that he could locate a “lower-priced fixer-upper in a choice neighborhood and then renovate it.” Moore was sold. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

NYPD Investigating Two White Flags on Brooklyn Bridge

July 23, 2014 — Chris Dolmetsch – Bloomberg
The New York City Police Department is trying to figure out who replaced the American flags that fly atop the Brooklyn Bridge with white banners. The replacement flags were discovered this morning on the towers at opposite ends of the bridge, where the Stars and Stripes are normally displayed, and were removed, police said. The NYPD’s Counterterrorism Bureau and Emergency Service Unit are probing the incident and reviewing surveillance video to determine who replaced the flags and when the act took place, police said. Read the court decision
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Reprinted courtesy of Chris Dolmetsch, Bloomberg
Mr. Dolmetsch may be contacted at cdolmetsch@bloomberg.net

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