New Illinois Supreme Court Trigger Rule for CGL Personal Injury “Offenses” Could Have Costly Consequences for Policyholders
March 09, 2020 —
Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery BlogThe Illinois Supreme Court’s recent decision in Sanders v. Illinois Union Insurance Co., 2019 IL 124565 (2019), announced the standard for triggering general liability coverage for malicious prosecution claims under Illinois law. In its decision, the court construed what appears to be a policy ambiguity against the policyholder in spite of the longstanding rule of contra proferentem, limiting coverage to policies in place at the time of the wrongful prosecution, and not the policies in effect when the final element of the tort of malicious prosecution occurred (i.e. the exoneration of the plaintiff). The net result of the court’s ruling for policyholders susceptible to such claims is that coverage for jury verdicts for malicious prosecution – awarded in today’s dollars – is limited to the coverage procured at the time of the wrongful prosecution, which may (as in this case) be decades old. Such a scenario can have costly consequences for policyholders given that the limits procured decades ago are often inadequate due to the ever-increasing awards by juries as well as inflation. Moreover, it may be difficult to locate the legacy policies and the insurers that issued such policies may no longer be solvent or even exist. A copy of the decision can be found
here.
The Sanders case arose out of the wrongful conviction of Rodell Sanders in 1994 by the City of Chicago Heights (the “City”). Mr. Sanders sought recompense for, among other things, malicious prosecution through a federal civil rights action against the City. In September 2016, Mr. Sanders obtained a consent judgment for $15 Million; however, at the time of the wrongful conviction, seventeen years earlier, the City’s only applicable insurance policy provided just $3 million in coverage. The City contributed another $2 million towards the judgment and, in exchange for Mr. Sanders’s agreement not to seek the $10 million balance from the City, assigned its rights under the policies for the 2012 to 2014 period.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Kevin V. Small, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Small may be contacted at ksmall@HuntonAK.com
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General Contractor’s Intentionally False Certifications Bar It From Any Recovery From Owner
November 03, 2016 —
Masaki James Yamada – Ahlers & Cressman PLLCIn a public works dispute in Massachusetts, a Massachusetts Court judge ruled that a general contractor could not recover any of its over $14 million claim against a public owner because it had violated its contract with the Owner by certifying that it had paid its subcontractors in full and on time when in fact it had not.[i] The case involves a contract dispute arising from a state and federally-funded project to design and construct a fiber optic network in western Massachusetts. The Owner was a state development agency established and organized to receive both state and federal funding to build a 1,200–mile fiber optic network known as MassBroadband123 in Western Massachusetts (the Project). Of that amount, $45.4 million was awarded pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA). One of the stated goals of ARRA was (as its title suggests) to create jobs in the wake of the 2008 recession and to provide a direct financial boost to those impacted by the economic crisis. In the context of the instant case, that meant that, if there were to be subcontractors on the job providing labor and materials, they needed to be paid on a timely basis in keeping with the statutory purpose of stimulating the economy.
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Masaki James Yamada, Ahlers & Cressman PLLCMr. Yamada may be contacted at
myamada@ac-lawyers.com
Kahana Feld Welcomes Six Attorneys to the Firm in Q4 of 2023
January 16, 2024 —
Linda Carter - Kahana FeldKahana Feld is pleased to announce the addition of six attorneys to the team in the fourth quarter of 2023. We are excited to have each of these individuals on the team.
In our Houston office, Kahana Feld welcomes Partner Donald Loving II and Attorney Elliott Wright. Mr. Loving is a member of the General Liability and Trucking & Transportation practice groups. He earned his Juris Doctor from the University of Houston and has over 30 years of litigation and trial experience, including working as staff & corporate counsel for several prominent insurance carriers including GEICO, Progressive, USAA and Travelers. Mr. Wright is a member of the Construction Defect, General Liability, and Trucking & Transportation practice groups. He earned his Juris Doctor from SMU Dedman School of Law, and has extensive litigation and insurance defense experience.
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Linda Carter, Kahana FeldMs. Carter may be contacted at
lcarter@kahanafeld.com
Professional Liability and Attorney-Client Privilege Bulletin: Intra-Law Firm Communications
January 07, 2015 —
David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLPAttorney-Client Privilege Protects Confidential Communications Between Law Firm Attorney Representing Current Client and Firm’s General Counsel Regarding Disputes with Client Who Later Files Malpractice Suit
In a case of first impression in California, Edwards Wildman Palmer LLP v. Superior Court (No. B255182 - filed November 25, 2014), Division Three of the Second District Court of Appeal addressed the question of whether the attorney-client privilege applies to intrafirm communications between law firm attorneys concerning disputes with a current client, when that client later sues the firm for malpractice and seeks to compel production of such communications. The court concluded that when an attorney representing a current client seeks legal advice from the law firm’s designated in-house “general counsel” concerning disputes with the client, the attorney-client privilege applies to their confidential communications. The court held that adoption of the so-called “fiduciary” or “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are precluded from creating implied exceptions to the statutorily created attorney-client privilege.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com
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Testimony from Insureds' Expert Limited By Motion In Limine
October 21, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe court considered the scope of testimony to be offered by the insureds' expert regarding a policy written for sanitation districts. Binghamton-Johnson City Joint Sewage Bd. v. Am. Alternative Ins. Corp., 2015 U.S. Dist. LEXIS 112210 (N.D. N.Y. Aug. 25, 2015).
The city of Binghamton and the city's Sewage Board sued American Alternative Insurance Corporation (AAIC) for coverage for a collapsed wall. AAIC sought the limit to testimony of the insureds' expert, Paul B. Nielander, through a motion in limine.
AAIC argued that Nielander was not qualified as an expert in interpreting insurance policies. His knowledge and experience was limited to insurance practices in other states and the words contained in policies other than AAIC policies. He had no experience with (i) negotiating, drafting, or performing under an AAIC policy, (ii) handling claims or interpreting policies written in New York State, or (iii) drafting policies or otherwise participating in what he conceded was a "niche market" of providing insurance to sanitation districts. Further, Neilander was not qualified to offer expert analysis of when the structural failure of the wall occurred because he had no training or experience as an engineer.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Primer Debuts on Life-Cycle Assessments of Embodied Carbon in Buildings
August 20, 2018 —
Engineering News-RecordA recently released primer for the use of a life-cycle assessment approach to analyze the environmental impacts of buildings is considered a small but necessary step toward the ambitious goal of getting to net-zero embodied carbon and operational greenhouse gas emissions in the construction, operation and decommissioning of buildings. The LCA guide comes after the release of the first-of-its-kind benchmarking database of embodied carbon in existing buildings. And another first—a tool to calculate embodied carbon in construction—is on the horizon.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Musings: Moving or Going into a New Service Area, There is More to It Than Just…
July 16, 2023 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we would like to welcome back (again) Sean Lintow Sr. (@The_HTRC) Sean has over 20 years in the construction and project management fields. As many know he pulled up stakes and moved to the State of Illinois almost a year ago where he still focuses on the “green” / energy efficiency markets by helping builders & trade professionals to improve their methods not only locally but nationally. Currently he is RESNET Rater, AEE CEA (Certified Energy Auditor), ENERGY STAR partner & verifier, EPA Indoor airPLUS verifier, Level 2 Infrared Thermographer, Volunteer Energy Rater for Habitat for Humanity, and Builders Challenge Partner & Verifier.
I would like to thank Chris for inviting me back as a guest poster. One item that struck a bell with me lately was his recent post for contractors considering work in another state is to check that states contractor licensing laws. Part of me was just saying – ahh if it were just that simple… With that in mind, here are some additional thoughts of mine along with advice picked up and given to others considering a move to greener pastures in another state, another town or maybe even taking that sweet little project outside of your current area that seems too good to pass up.
Licensing:
Yep this is a no-brainer – but unfortunately, as I pointed out in a 2012 piece it isn’t always that simple as in some cases the state may not require licensing and instead leave it to the towns which can be real fun to figure out. How long will it take to obtain? Ahh, but what about other licenses that a township may require? Working on a pre-78 house – is the state a self-managed one or is your current EPA certificate and training good enough? (Living in a self-managed state but working on an Indian Reservation? Well you will need to be EPA certified) Does the area require a specialty Storm Water Certificate or???
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Restrictions On Out-Of-State Real Estate Brokers Being Challenged In Nevada
April 10, 2019 —
Aaron D. Lovaas - Newmeyer & Dillion LLPFor years, the Nevada Real Estate Division (“NRED”) and its sub-entity, the Nevada Real Estate Commission (“NREC”), have been tasked with administering the licensing procedures applicable to real estate professionals in Nevada, as well as enforcement of the regulations governing business practices, advertising, commissions, license maintenance, and a host of other dayto-day parameters within which the profession operates. Within the past five years, however, the NREC has tasked itself with the publicly stated goal of “protecting” Nevada real estate licensees and the commissions they earn from out-of-state real estate professionals seeking to do business in the Silver State. While efforts to preserve local real estate opportunities for local brokers might seem sound, an international brokerage firm is challenging the foundation of that structure. If they win, the outcome could have huge implications on the real estate industry in Nevada. Businesses, here’s a breakdown of the existing structure and what the challenge is all about.
The Existing Regulatory Structure
Through amending their own regulations, the NRED and NREC have created a regulatory structure that:
- Prohibits any non-Nevada licensed real estate broker from representing any seller (Nevada based or non-Nevada based) of any Nevada real estate;
- Prohibits any non-Nevada licensed real estate broker from representing any Nevada resident in the purchase of Nevada real estate; and
- Allows non-Nevada licensed real estate brokers to represent non-Nevada purchasers of Nevada real estate only if the out-of-state broker formally affiliates (and therefore shares commissions with) a resident Nevada-licensed broker.
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Aaron D. Lovaas, Newmeyer & Dillion LLPMr. Lovaas may be contacted at
aaron.lovaas@ndlf.com
