CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Duty to Defend Broadly Applies to Entire Action; Insured Need Not Apportion Defense Costs, Says Maryland Appeals Court

January 27, 2020 — Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery Blog
In a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here. The coverage litigation arose out of a construction defect case against a general contractor. The general contractor tendered the action to its insurer, Nationwide, which, in turn, filed a declaratory judgment action against the various insurers of construction project subcontractors that had named the general contractor as an additional insured. Ultimately, the court granted a summary judgment motion declaring that all of the subcontractors’ insurers had a duty to defend the general contractor “because the allegations in the underlying lawsuit raised claims that potentially arose from the [s]ubcontractors’ work at the [construction site].” All of the subcontractors’ insurers settled with Nationwide except for one, Selective Way; and the parties proceeded to a jury trial on various issues. The jury found for Nationwide on all issues. Selective Way appealed. Selective Way argued on appeal that even if some of the allegations were covered under its policy, it had no obligation to defend the general contractor because its insureds, the subcontractors, could not have been responsible for all of the losses given the nature of their work. Further, Selective Way contended that if it was responsible for defending the general contractor, it was not responsible for the entire defense, and the general contractor was responsible for apportioning the costs among the various subcontractors. The panel disagreed on both points. 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 Read the court decision
Read the full story...
Reprinted courtesy of

---

Colorado homebuilders target low-income buyers with bogus "affordable housing" bill

March 05, 2015 — Jesse Howard Witt – Acerbic Witt
“Affordable housing” is the latest catchphrase for Colorado homebuilders seeking immunity from warranty claims and repair requests. In 2013, the homebuilders’ lobby said it was about public transportation. In 2014 they said it was about community building. Now it’s 2015, and the lobbyists are claiming that a lack of affordable housing is the reason why politicians should eliminate consumer protections for homebuyers. The Colorado Senate recently announced the introduction of SB 15-177. If passed, the bill will make it illegal for homeowner associations to hire construction experts or lawyers unless they can first satisfy a complicated disclosure and voting process. Although sponsors portray the bill as an innocuous measure that merely requires more community involvement, its provisions have actually been tailored to take advantage of recent court decisions that make it difficult for homeowner associations to vote on measures outside of a meeting or act quickly to resolve construction defect disputes. The intent is to make it nearly impossible for homeowners to retain construction experts or legal representation before the statute of limitations period expires, thereby making homebuilders immune from any potential claims. The bill will also eliminate the right to a jury trial in many cases, forcing any disputes that overcome the procedural hurdles into costly, private arbitration proceedings. The sponsors argue that these measures are necessary to encourage builders to erect more cheap condominiums. Read the court decision
Read the full story...
Reprinted courtesy of Jesse Howard Witt, The Witt Law Firm
Mr. Witt welcomes comments at www.acerbicwitt.com

---

Common Law Indemnity Claim Affirmed on Justifiable Beliefs

June 30, 2016 — Rick Erickson – Snell & Wilmer Real Estate Litigation Blog
Yesterday, the Arizona Court of Appeals issued an interesting opinion in Hatch Development v. Solomon. Hatch illustrated two key points in real estate and construction litigation: (1) a contractor’s indemnity does not always require an expressly written obligation; and (2) when facts are undisputed that a contractor is solely at fault for a construction defect, a property owner can be indemnified after paying a neighboring property owner for damages caused by the contractor’s defective work. Read the court decision
Read the full story...
Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr. Erickson may be contacted at rerickson@swlaw.com

---

After Breaching Its Duty to Defend, Insurer Must Pay Market Rates for Defense Counsel

October 30, 2023 — Tred R. Eyerly - Insurance Law Hawaii
After breaching its duty to defend, the insurer could not take advantage of a California statute allowing insurers to establish rates for defense counsel. S. Cal. Edison Co. v. Greenwich Ins. Co., 2023 U.S. Dist. LEXIS 151695 (C.D. Cal. July 28, 2023). Edison was an additional insured under a policy issued by Greenwich Insurance Company to Utility Tree Service, Inc. (UTS). UTS contracted with Edison to provide vegetation management services near Edison's transmission lines. The Greenwich policy provided additional insured coverage to third parties to the extent of UTS's obligations under the contract. Edison was sued in numerous lawsuits for property damage caused by the Bobcat wildfire in the Angeles National Forest (Bobcat Wildfire lawsuits). Edison tendered the defense in each lawsuit to Greenwich. Coverage was denied, however, based on a lack of underlying allegations or extrinsic evidence that Edison's liability resulted from UTS's negligent actions. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

When Employer’s Liability Coverage May Be Limited in New York

June 28, 2021 — Robert S. Nobel & Craig Rokuson - Traub Lieberman
New York recognizes that coverage under Workers’ Compensation (“WC”) and Employer’s Liability (“EL”) policies is generally unlimited. See Tully Const. Co. v. Illinois Nat. Ins. Co., 131 A.D.3d 598 (2d Dept. 2015); Oneida Ltd. v. Utica Mut. Ins. Co., 263 A.D.2d 825, 694 N.Y.S.2d 221 (3d Dept. 1999). However, there is case holding that EL coverage may be limited in certain instances, such as when the primary EL carrier is listed as scheduled underlying insurance on an excess policy. In Liberty Mut. Ins. Co. v. Ins. Co. of State of Pennsylvania, 43 A.D.3d 666, 841 N.Y.S.2d 288 (1st Dept. 2007), an employee of General Industrial Service Corporation (“General”), a subcontractor on a construction project, sought to recover under New York’s Labor Law against the project’s owner and construction manager. Those defendants, in turn, brought a third-party action for indemnification against General. The employee’s personal injury claim was ultimately settled for $2.5 million. After the settlement, the excess insurer, Liberty, filed suit against the primary employer’s liability insurers, The Insurance Company of the State of Pennsylvania and American International Group of Companies (collectively, “AIG”), which had refused to participate in the defense or settlement of the underlying personal injury litigation. Although the issue of whether the plaintiff in the underling action had sustained a “grave injury” (necessary to support the common law indemnity claim against General and trigger coverage under the Employer’s Lability policy) had not yet been determined, the court held that “[i]n the event the existence of a grave injury is proven, AIG’s liability will be limited to $1 million.” Reprinted courtesy of Robert S. Nobel, Traub Lieberman and Craig Rokuson, Traub Lieberman Mr. Nobel may be contacted at rnobel@tlsslaw.com Mr. Rokuson may be contacted at crokuson@tlsslaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Video: Contractors’ Update on New Regulations Governing Commercial Use of Drones

September 01, 2016 — David R. Cook Jr. – AHHC Construction Law Blog
At a presentation before the AGC of Georgia, AHHC attorneys Mark Hanrahan, David Cook, and Chadd Reynolds covered “Contractors’ Update on New Regulations Governing Commercial Use of Drones.” View the presentation here: https://vimeo.com/177566370 On June 23, 2016, the Department of Transportation and Federal Aviation Administration issued new regulations regarding non-hobby and non-recreational civil operation of small unmanned aircraft systems. These regulations are intended to limit interference with federal airspace while advancing research and safety in commercial industries. They also addressed practical implications and how to comply by the August 29, 2016 deadline. Read the court decision
Read the full story...
Reprinted courtesy of David R. Cook Jr., Autry, Hanrahan, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

---

New Orleans Reviews System After Storm Swamps Pumps

August 17, 2017 — Pam Radtke Russell - Engineering News-Record
The city of New Orleans will hire an independent team of engineers to evaluate the problems that led to severe flooding following an Aug. 5 rainfall of up to 10 in. The decision followed the revelation that 16 of the city’s pumps were not working, despite claims the system was at capacity. Further, the power system that operates those pumps was severely crippled. Read the court decision
Read the full story...
Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

---

Supreme Court Grants Petition for Review Regarding Necessary Parties in Lien Foreclosure Actions

August 17, 2017 — Lindsay K. Taft - Ahlers & Cressman PLLC
For several years, the requirements for which parties must be named in a lien foreclosure action when a release of lien bond is in place have been cloudy. RCW 60.04 et seq., the “mechanics’ lien” or “construction lien” statute, provides protection for a party or person who provides labor, materials, or equipment to a construction project. That person or party, if not paid, can file a lien against the construction project property to secure recovery. As the lien impacts the property by “clouding title” and could potentially result in foreclosure of the property, the statute sets forth strict requirements with respect to timing, notice, and parties. For example, the lien must be recorded within 90 days of the person or party’s last day of work or materials or equipment supplied, and the lien claimant must then give a copy of the claim of lien to the owner or reputed owner within 14 days of the lien recording. RCW 60.04.081. The statute also allows a property owner or other party to “free” the property from the lien prior to the claim being resolved by issuing a release of lien bond. While the claim is still in dispute, the lien then attaches to the bond and not the property. The same rules about foreclosure, however, still apply but not without some confusion. Read the court decision
Read the full story...
Reprinted courtesy of Lindsay K. Taft, Ahlers & Cressman PLLC
Ms. Taft may be contacted at ltaft@ac-lawyers.com

---