Court Finds No Coverage for Workplace “Prank” With Nail Gun
April 04, 2022 —
Craig Rokuson - Traub Lieberman Insurance Law BlogIn the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion.
With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
Wow! A Mechanic’s Lien Bill That Helps Subcontractors and Suppliers
March 05, 2015 —
Christopher G. Hill – Construction Law MusingsYou know how I’ve stated on many occasions that the contract is king here in Virginia? You know how that included contractual provisions waiving mechanic’s lien rights for subcontractors and suppliers? You know how I thought that the General Assembly would not do anything to make mechanic’s liens in Virginia easier to prosecute?
Well, it seems, at least for waivers of mechanic’s lien rights by subcontractors and suppliers (more about general contractors later) I was wrong. This General Assembly session, the Senate introduced a bill, that has now passed both houses as of February 25, 2015, that adds language to Virginia Code Section 43-3 that effectively nullifies any contractual waiver of lien rights prior to any work having been performed by any tier of construction company aside from general contractors.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Fatal Crane Collapse in Seattle Prompts Questions About Disassembly Procedures
July 09, 2019 —
Jeff Rubenstone - Engineering News-RecordA tower crane being dismantled collapsed Saturday, April 27 in Seattle, killing four people, including two ironworkers on the crane and two bystanders on the street below. The jobsite, located in a Google office development in Seattle's bustling South Lake Union neighborhood, is adjacent to a busy intersection where traffic had not been blocked off during the crane’s disassembly. It is the first fatal crane accident in the Puget Sound region since a crane collapse in Bellevue, Wash., in 2006 that killed one person.
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Jeff Rubenstone, ENRMr. Rubenstone may be contacted at
rubenstonej@enr.com
California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies
July 20, 2020 —
Scott P. DeVries & Michael S. Levine - Hunton Andrews KurthOn May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part.
The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation.
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
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The Creation of San Fransokyo
June 17, 2015 —
Garret Murai – California Construction Law BlogSome of the most awe inspiring buildings and urban environments started off on paper and, these days, on computer screens. Think Babylon or even Pierre Charles L’Enfant’s Washington, D.C..
Most of those structures and cityscapes were designed for human habitation, but not all. Some were designed purely for our imaginations, like Minecraft, which those of you with young ones might be familiar with.
Another more recent example though is Big Hero 6, about a science-whiz named Hiro (pronounced “hero,” get it) who journeys from boyhood to manhood and saves the world along the way with his robot pal Baymax. The movie is set in foreign-yet-familiar “San Fransokyo.”
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
A Lack of Sophistication With the Construction Contract Can Play Out In an Ugly Dispute
November 07, 2022 —
David Adelstein - Florida Construction Legal UpdatesThere are times where a lack of sophistication can come back to haunt you. This is not referring to a lack of sophistication of the parties. The parties, themselves, could be quite sophisticated. This is referring to a lack of sophistication with the construction contract forming the basis of the relationship. While parties don’t always want to buy into the contract drafting and negotiation process, it is oftentimes the first document reviewed. Because contract terms and conditions are important. They govern the relationship, the risk, scope, amount, and certain outcomes with disputes. However, a lack of sophistication can play out when that contract that should govern the relationship, the risk, the scope, the amount, and certain outcomes doesn’t actually do that, or if it does, it does it poorly. An example of how bad a dispute can play out when it comes to the lack of sophistication on the front end is Avant Design Group, Inc. v. Aquastar Holdings, LLC, 2022 WL 6852227 (Fla. 3d DCA 2022), where a cost-plus contract was treated as a lump sum contract.
Here, an owner planned to perform an extensive interior build-out to a residential unit. The owner had an out-of-country architect; because the architect was not licensed in Florida, the owner hired a local architect/designer to oversee construction and obtain goods and services for the residential interior build-out. The contract was nothing but a proposal of items and costs. The proposal stated the owner “would pay the cost of goods and services of the vendors, plus pay a ‘20% Interior Design & Administrative Fee’” to the local designer. Avant Design Group, 2022 WL at *1. The proposal further stated, “This preliminary budget of the Client’s construction costs include [sic] anticipated costs for construction materials, labor and sales tax. Any other cost, including but not limited to freight, cartage, shipping, receiving, storage and delivery are not included in the preliminary budget and will be invoiced separately.” Id., n.2.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit
September 09, 2011 —
CDJ STAFFThe Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.
In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.
When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.
Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.
In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.
The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”
Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.
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A Downside of Associational Standing - HOA's Claims Against Subcontractors Barred by Statute of Limitations
March 28, 2012 —
Bret Cogdill, Colorado Construction LitigationIn multi-family construction defect litigation in Colorado, homeowners associations rely on associational standing to pursue claims affecting more than two units and to bring claims covering an entire development. This practice broadens an association’s case beyond what individual, aggrieved owners would otherwise bring on their own against a developer or builder-vendor. However, reliance on associational standing to combine homeowners’ defect claims into a single lawsuit has its drawbacks to homeowners.
A recent order in the case Villa Mirage Condominium Owners’ Association, Inc., v. Stetson 162, LLC, et al., in El Paso County District Court, presents an example. There, the HOA unsuccessfully sought a determination from the court that its claims against subcontractors were not barred by the statute of limitations. To do so, the HOAs attempted to apply the Colorado Common Interest Ownership Act (“CCIOA”), which governs the creation and operation of HOAs, and a statute intended to apply to persons under a legal disability.
Under CCIOA, during the period of “declarant control” the developer may appoint members to the association’s executive board until sufficient homeowners have moved into the development and taken seats on the board.
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Reprinted courtesy of Bret Cogdill of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Cogdill can be contacted at cogdill@hhmrlaw.com.
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