Cambridge Massachusetts Building Expert Directory

Court of Appeals Finds Additional Insured Coverage Despite “Care, Custody or Control” Exclusion

September 30, 2019 — Garret Murai - California Construction Law Blog
When things go wrong on a construction project it’s often a scramble of finger pointing. In McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company, Case No. D074219 (June 5, 2019), the California Court of Appeals for the 4th District considered whether an additional insured exclusion, excluding “property in the care, custody or control of the additional insured,” precluded a duty to defend by an insurer. McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company McMillin Homes Construction, Inc. was the developer and general contractor on a residential project known as Auburn Lane in Chula Vista, California. McMillin subcontracted with Martin Roofing Company, Inc. to perform roofing work. Under the subcontract, Martin was required to obtain commercial general liability insurance naming McMillin as an additional insured. The commercial general liability insurance policy secured by Martin was issued by National Fire and Marine Insurance Company. As is typical, the policy covered “property damage” and “personal injury” arising out of an “occurrence” during the policy period. McMillin was covered as additional insured under ISO endorsement form CG 20 09 03 97. 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

Oregon Duty to Defend Triggered by Potential Timing of Damage

June 28, 2013 — CDJ STAFF
The Oregon Supreme Court has concluded that if it is possible that damage could have occurred prior to the completion of the project, then the policies in effect at that time are triggered. John Green of Farella Braun + Martel LLP writes that “we have long argued that, since the duty to defend exists if there is any ‘potential’ of covered liability, there is a potential that damage happened before that project was completed, or at any time after completion, triggering all policies in that time frame.” The Oregon court concluded that if property damage could have happened during construction, the insuerer had a duty to defend and “the insured had no burden to establish any additional facts to support that potential.” Read the court decision
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Federal Court Again Confirms No Coverage For Construction Defects in Hawaii

July 28, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii federal district court confirmed its prior holdings that there is no duty to defend or indemnify for property damage caused by faulty workmanship. State Farm Fire & Cas Co. v. GP West, Inc., 2016 U.S. Dist. LEXIS 74240 (D. Haw. Jun 7, 2016). (Full disclosure - our office represents GP West in this matter). GP West, the contractor, and Air Conditioning of Maui, Inc. (AC Maui), the subcontractor, were sued by the owner of a veterinary clinic for installation of an alleged defective HVAC system. GP West contracted with the owner to build the clinic. AC Maui was the HVAC subcontractor and designed, sized and priced a HVAC system for the clinic. The underlying complaint alleged that after the building was substantially complete, the HVAC system experienced multiple equipment defects and mechanical breakdowns, and did not properly dehumidify the building. 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

Las Vegas HOA Case Defense Attorney Alleges Misconduct by Justice Department

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the Las Vegas Review-Journal, "Daniel Albregts, who represents Benzer, filed court papers accusing Justice Department lawyers of misconduct that allowed the newspaper to obtain what are now sealed FBI and Las Vegas police reports of the failed negotiations in the summer of 2011." Albregts claimed that "prosecutors promised lawyers for Benzer’s co-defendant, attorney Keith Gregory, that they would not object if the lawyers filed reports of the negotiations under seal in a related matter in September, but then turned around in court and told a federal judge the reports should be made public." The investigative reports had been sealed, however, "after prosecutors argued to make them public, U.S. Magistrate Judge George Foley Jr. ordered them unsealed." The reports were sealed again two days later, but the media (including the Las Vegas Review-Journal) obtained the documents while they were public. “This conduct, when viewed in the light of the ceaseless and inflammatory reporting, particularly with regard to this defendant, is the kind of conduct which can only be remedied through dismissal,” Albregts wrote, as quoted in the Las Vegas-Review Journal. Read the court decision
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CFTC Establishes Climate-Risk Unit, Echoing Other Biden Administration Agency Themes

April 12, 2021 — Karen C. Bennett & Jane C. Luxton - Lewis Brisbois
On March 17, the Commodity Futures Trading Commission (CFTC or Commission) joined other federal agencies led by Biden Administration appointees in ramping up consideration of climate-related risks in matters under the Commission’s jurisdiction. Stressing the need for a climate-resilient financial system, the CFTC’s new Climate-Risk Unit (CRU) will focus on “the role of derivatives in understanding, pricing, and addressing climate-related risk and transitioning to a low-carbon economy.” Formation of the CRU will accelerate the CFTC’s “engagement in support of industry-led and market-driven processes in the climate – and the larger ESG – space critical to ensuring that new products and markets fairly facilitate hedging, price discovery, market transparency, and capital allocation.” As with similar programs launched by the Securities and Exchange Commission (see our previous alert from March 19), businesses affected by the CFTC’s new initiative should consider active engagement to ensure informed and appropriate approaches are included in any new regulations, policies, or frameworks governing climate-related issues. Reprinted courtesy of Karen C. Bennett, Lewis Brisbois and Jane C. Luxton, Lewis Brisbois Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com Read the court decision
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Texas EIFS Case May Have Future Implications for Construction Defects

October 02, 2013 — CDJ STAFF
Lennar Homes addressed a problem with EIFS in homes built in Texas in the 1990s by replacing every roof they had built. Some of those homes had problems with leaks, rotting, or termites, but other roofs hadn’t suffered any problems. Lennar’s insurers initially refused coverage. Lennar managed to settle with all but one, Markel American Insurance. Their dispute formed the case Lennar Corp. v. Markel American Insurance Co. This was first tried before a jury and eventually appealed to the Texas Supreme Court. Brian S. Martin of Thompson Coe Cousins & Irons LLP discusses this case at Insurance Journal. Markel’s claim was that under the policy language, Lennar could not make voluntary payments without getting Markel’s consent, which they did not. But the Texas Supreme Court disagreed, determining that Lennar took, as Mr. Martin notes, “a reasonable approach to a serious problem.” Markel also made the claim that the whole amount of the damages was not covered by the policy, as they did not view the policy as covering the cost of determining the extent of the damage. The Court disagreed, noting that “under no reasonable construction of the phrase can the cost of finding EIFS property damage in order to repair it not to be considered ‘because of the damage.’” Mr. Martin concludes by calling the Texas Supreme Court decision “a frontal assault on several critical provisions of liability policies that will assuredly lead to further litigation.” He also notes that the decision “may indicate a shift in the Court’s approach in insurance cases to a more result-oriented jurisprudence.” Read the court decision
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Sometimes it Depends on “Whose” Hand is in the Cookie Jar

January 21, 2015 — Roger Hughes – California Construction Law Blog
In a lengthy and somewhat detailed decision, the California Court of Appeal for First District, in Pittsburg Unified School District v. S.J. Amoroso Construction Company, Inc., Case No. A138825 (December 22, 2014), held that a public entity could unilaterally withdraw retention funds during a pending legal dispute without the court first finding that the contractor had defaulted on the public works project. Background In 2008, general contractor S.J. Amoroso Construction Company, Inc. (“S.J. Amoroso”) entered into a construction contract with the Pittsburg Unified School District (“District”) for the reconstruction and modernization of a high school in Pittsburg, California. Read the court decision
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Reprinted courtesy of Roger Hughes, Wendel Rosen Black & Dean LLP
Mr. Hughes may be contacted at rhughes@wendel.com

Quick Note: Unenforceable Language in Arbitration Provision

November 06, 2018 — David Adelstein - Florida Construction Legal Updates
Although arbitration is a dispute resolution provision provided for in a contract, the scope of judicial review of an arbitrator’s award is still governed by law. There are limited circumstances in which an arbitrator’s award can be challenged under the law. One of those circumstances is not because a party believes that an arbitrator applied the incorrect law. 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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