Slip and Fall Claim from Standing Water in Parking Garage
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFIn Metairie, Louisiana, Paul Unkauf filed a lawsuit after he allegedly “slipped and fell on standing water in the parking garage,” located at Heritage Plaza, according to the Louisiana Record. The defendants, Stewart Development LLC, Stirling Properties LLC, Platinum Parking LLC and First Financial Company, are “accused of permitting standing water to dampen the pathway leading to the elevator bank, failing to dry the pathway, failing to warn of the hazard, failing to properly inspect the area in question, failing to provide a safe means of exit and entrance, being careless and negligent under the circumstances, failing to properly identify and correct defects in design and failing to properly supervise and train employees,” reports the Louisiana Record.
Unkauf is seeking an “unspecified amount in damages” for “medical expenses, physical pain, loss of function, mental anguish, emotional distress, loss of enjoyment of life and permanent partial disability.”
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Eleventh Circuit Vacates District Court Decision Finding No Duty to Defend Faulty Workmanship Claims
November 02, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventh Circuit vacated the district court's grant of summary judgment to the insurer finding there was no duty to defend. Southern-Owners Ins. Co. v. Mac Contractors of Florida, LLC, 2020 U.S. App. LEXIS 23918 (11th Cir. July 29, 2020).
Mac Contractors entered into a contract with homeowners to serve as general contractor for the construction of a custom residence. Problems arose during construction and Mac eventually led the job site before completing the project. The home owners sued, alleging that Mac and its subcontractors had left the residence "replete with construction defects." Damages were sought for having to repair and remediate all defective work performed by Mac.
Mac tendered under its CGL policy to its insurer, Southern-Owners. A defense was granted, but later withdrawn when Southern-Owners filed suit seeking a declaration that it owed no duty to defend or indemnify Mac. On cross-motions for summary judgment, the district court found in favor of Southern-Owners based on the exclusion for "Damage to Your Work." The Eleventh Circuit vacated on appeal, concluding that the underlying complaint could fairly be construed to allege damages that fell outside of the exclusion.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Mexico’s Construction Industry Posts First Expansion Since 2012
August 13, 2014 —
Brendan Case – BloombergMexico’s construction industry expanded in June for the first time in 19 months, adding to signs that the economy is rebounding after missing analyst estimates in seven of the last eight quarters.
Construction increased 2.2 percent from the year earlier, helping industrial production to expand 2 percent, according to data released today by the national statistics agency. The median estimate of 19 economists surveyed by Bloomberg was for industrial output to rise 2.1 percent.
“Industrial activity continued strengthening in June, very much in line with what the market expected,” Mario Correa, the chief Mexico economist at Bank of Nova Scotia, said in a note to clients today. “The construction industry finally showed a positive growth rate.”
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Brendan Case, BloombergMr. Case may be contacted at
bcase4@bloomberg.net
Leveraging the 50-State Initiative, Connecticut and Maine Team Secure Full Dismissal of Coverage Claim for Catastrophic Property Loss
March 23, 2020 —
Regen O'Malley - Gordon & Rees Insurance Coverage Law BlogOn behalf of Gordon & Rees’ surplus lines insurer client, Hartford insurance coverage attorneys Dennis Brown, Joseph Blyskal, and Regen O’Malley, with the assistance of associates Kelcie Reid, Alexandria McFarlane, and Justyn Stokely, and Maine counsel Lauren Thomas, secured a full dismissal of a $15 million commercial property loss claim before the Maine Business and Consumer Court on January 23, 2020. The insured, a wood pellet manufacturer, sustained catastrophic fire loss to its plant in 2018 – just one day after its surplus lines policy expired.
Following the insurer’s declination of coverage for the loss, the wood pellet manufacturer brought suit against both its agent, claiming it had failed to timely secure property coverage, as well as the insurer, alleging that it had had failed to comply with Maine’s statutory notice requirements. The surplus lines insurer agreed to extend the prior policy several times by endorsement, but declined to do so again. Notably, the insured alleged that the agent received written notice of the non-renewal prior to the policy’s expiration 13 days before the policy’s expiration. However, the insured (as well as the agent by way of a cross-claim) asserted that the policy remained effective at the time of the loss as the insured did not receive direct notice of the decision not to renew coverage and notice to the agent was not timely. Although Maine’s Attorney General and Superintendent intervened in support of the insured’s and agent’s argument that the statute’s notice provision applied such that coverage would still be owed under the expired policy, Gordon & Rees convinced the Court otherwise.
At issue, specifically, was whether the alleged violation of the 14-day notice provision in Section 2009-A of the Surplus Lines Law (24-A M.R.S. § 2009-A), which governs the “cancellation and nonrenewal” of surplus lines policies, required coverage notwithstanding the expiration of the policy. The insured, the agent, and the State of Maine intervenors argued that “cancellation or nonrenewal” was sufficient to trigger the statute’s notice requirement, and thus Section 2009-A required the insurer to notify the insured directly of nonrenewal. In its motion to dismiss, Gordon & Rees argued on behalf of its client that Section 2009-A requires both “cancellation and nonrenewal” in order for the statute to apply. Since there was no cancellation in this case – only nonrenewal – Gordon & Rees argued that Section 2009-A is inapt and that the insurer is not obligated to provide the manufacturer with notice of nonrenewal. Alternatively, it argued that the statute is unconstitutionally vague and unenforceable.
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Regen O'Malley, Gordon & ReesMs. O'Malley may be contacted at
romalley@grsm.com
The Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?
March 17, 2011 —
Shaun McParland BaldwinThe 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. Sullivanrsquo;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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CGL Insurer’s Duty to Defend Insured During Pre-Suit 558 Process: Maybe?
December 20, 2017 —
David Adelstein - Florida Construction Legal UpdatesIn earlier postings, I discussed the issue of whether Florida Statutes Chapter 558′s pre-suit construction defects process triggers a CGL insurer’s duty to defend. The issue was whether Florida’s 558 pre-suit notice of a construction defect and repair process met the definition of “suit” within a standard CGL policy.
A standard CGL policy defines the term “suit” as:
“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:
a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or
b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Old Case Teaches New Tricks
March 16, 2017 —
Angela A.L. Connor & Curtis W. Martin - Peckar & Abramson, P.C.Eight years after completion of the wharf project, Zachry and the Port of Houston continue to slug
it out in the appellate courts and continue to refi ne Texas construction law along the way. In the
latest appellate opinion, the Court of Appeals details the general contractor’s control of the means
and methods of their work without interference from a governmental entity. It also supports a
subcontractor’s use of a pass-through claim as a cost efficient way to recover damages.
By now most of us are familiar with the project and the previous decisions. Zachry sued the Port
claiming breach after the Port denied Zachry the right to continue construction using its frozen
cutoff wall. The Texas Supreme Court upheld the jury’s $20 million verdict for Zachry, ruling that
the Port’s “no damages for delay” clause would not bar Zachry’s claim in light of the Port’s active
interference with Zachry’s work. The Supreme Court then sent the case back to the Court of
Appeals to consider other arguments that the Port had made.
That led to the most recent decision. In December, 2016, the Houston Fourteenth Court of Appeals
ruled in favor of Zachry on all issues and affirmed the jury verdict. In doing so, the Court of Appeals
provides several lessons or reminders on Texas Construction law.
Reprinted courtesy of
Angela A.L. Connor, Peckar & Abramson, P.C. and
Curtis W. Martin, Peckar & Abramson, P.C.
Ms. Connor may be contacted at aconnor@pecklaw.com
Mr. Martin may be contacted at cmartin@pecklaw.com
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EPA Issues Interpretive Statement on Application of NPDES Permit System to Releases of Pollutants to Groundwater
May 27, 2019 —
Anthony B. Cavender - Gravel2GavelOn Tuesday, April 23, 2019, in a development of interest to practically anyone who operates a plant or business, EPA published its Interpretive Statement in the Federal Register. (See 84 FR 16810 (April 23, 2019).) After considering the thousands of comments it received in response to a February 20, 2018, Federal Register notice, EPA has concluded that “the Clean Water Act (CWA) is best read as excluding all releases of pollutants from a point source to groundwater from a point source from NPDES program coverage, regardless of a hydrological connection between the groundwater and jurisdictional surface water.”
Acknowledging that its past public statements have not been especially consistent or unambiguous on this important matter, EPA states that this interpretation “is the best, if not the only reading of the CWA, is more consistent with Congress’ intent than other interpretations of the Act, and best addresses the question of NPDES permit program applicability for pollutant releases to groundwater within the authority of the CWA.” Indeed, the absence of “a dedicated statement on the best reading of the CWA has generated confusion in the courts, and uncertainly for EPA regional offices and states implementing the NPDES program, regulated entities, and the public.” The recent and contrary interpretations of this issue by the Ninth Circuit (Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737) and the Fourth Circuit (Upstate Forever v. Kinder Morgan Energy Partners, LP, 887 F.3d 637) will be reviewed by the U.S. Supreme Court, which will now have the benefit of the agency’s official position. In addition, EPA discloses that it will be soliciting additional public “input” on how it can best provide the regulated community with “further clarity and regulatory certainly”; these comments will be due within 45 days (June 7, 2019).
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
