Fairfield Connecticut Building Expert Directory

Three's a Trend: Second, Fourth and Ninth Circuits Uphold Broad "Related Claims" Language

February 23, 2016 — Greg Steinberg – White and Williams LLP
The hallmark of a claims-made insurance policy is that the policy only provides coverage for claims that are “first made” during the policy period. As noted by the Texas Supreme Court, “for the insurer, the inherent benefit of a claims-made policy is the insurer's ability to close its books on a policy at its expiration and thus to attain a level of predictability unattainable under standard occurrence policies.”[1] To ensure this “level of predictability,” claims-made insurance policies contain provisions stating that all “Related Claims” will be treated as a single claim deemed first made at the time the earliest of such claims was made. The “Related Claims” provision is an issue that comes up time and again – claims can span years, especially in the context of regulatory investigations, which often culminate in enforcement proceedings and litigation. This inevitably leads to disputes regarding whether later claims can be related back to the earlier claim, an issue that becomes even thornier when different insurers participate on different policy years. Over time, case law on “Related Claims” has been mixed and somewhat inconsistent, with each case tending to hinge on its own unique set of facts, making it difficult to identify a clear standard for determining whether claims are related. However, three recent decisions out of the Second, Fourth and Ninth Circuits show that courts are increasingly deferring to the plain language of the policy and applying these provisions broadly. Read the court decision
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Reprinted courtesy of Greg Steinberg, White and Williams LLP
Mr. Steinberg may be contacted at steinbergg@whiteandwilliams.com

Eleventh Circuit Upholds Coverage for Environmental Damage from Sewage, Concluding It is Not a “Pollutant”

May 24, 2018 — Lorelie S. Masters & Alexander D. Russo - Hunton Insurance Recovery Blog
On April 20, 2018, the Eleventh Circuit affirmed an Alabama district court decision finding that an “absolute pollution exclusion” did not bar coverage for environmental property damage and injuries from a sewage leak. Evanston Ins. Co. v. J&J Cable Constr., LLC, No. 17-11188, 2018 WL 1887459, (11th Cir. Apr. 20, 2018). J&J Cable was hired to install underground electrical conduit in a subdivision when it struck and broke the sewer pipe to two homes. As a result, sewage backed up into the homes causing property damage and personal injuries. The commercial general liability policy at issue contained an “absolute pollution exclusion,” which sought to bar coverage for “bodily injury” and “property damage” arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release or escape of “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The insurer relied on an earlier Alabama federal district court decision, which precluded coverage for liability from lead paint exposure, concluding that lead was a pollutant under a similar exclusion. The Eleventh Circuit disagreed, recognizing that insurance is a state law issue and opting instead to rely on binding state court precedent. The Eleventh Circuit, therefore, found that the decision in U.S. Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985), by the state’s highest court, the Alabama Supreme Court, governed. That case made a distinction between industrial waste and residential sewage. Accordingly, the Eleventh Circuit found that the “absolute pollution exclusion” did not preclude coverage for liability for injuries caused by sewage. Reprinted courtesy of Lorelie S. Masters , Hunton Andrews Kurth and Alexander D. Russo , Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Russo may be contacted at arusso@huntonak.com Read the court decision
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Don’t Spoil Me: Oklahoma District Court Rules Against Spoliation Sanctions

January 08, 2024 — Kyle Rice - The Subrogation Strategist
In Okla. Farm Bureau Mut. Ins. Co. v. Omega Flex, Inc., No. CIV-22-18-D, 2023 U.S. Dist. LEXIS 197755, the United States District Court for the Western District of Oklahoma (the District Court) determined spoliation sanctions were not warranted after a home was demolished for repair following a joint scene examination. The insurer, Oklahoma Farm Bureau Mutual Insurance Company (Insurer) provided a policy of insurance to Michael and Sondra Diel (the Diels). On July 11, 2020, the Diels’ home was struck by lightning and their attic caught fire. Following the loss, Insurer retained both counsel and fire origin and cause experts to inspect the Diels’ property. Insurer’s counsel informed in-house counsel for Omega Flex, Inc. (Omega Flex) via a letter dated July 14, 2020, that a preliminary investigation indicated the fire may have been caused by an Omega Flex product—specifically, TracPipe Corrugated Stainless Steel Tubing (CSST). Insurer’s counsel invited Omega Flex to inspect the property, noting: “It is anticipated that the loss will exceed $300,000” and stating that any inspection “must be completed during the next two weeks. At that time, the homeowner will proceed with demolition to rebuild.” (Emphasis added). Read the court decision
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Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

Houston Bond Issue Jump-Starts 237 Flood Control Projects

September 10, 2018 — Louise Poirier & Pam Radtke Russell - Engineering News-Record
More than $3 billion in flood risk reduction and repair projects can move forward in Houston following a vote held on Hurricane Harvey's anniversary that authorized a $2.5-billion bond program. Reprinted courtesy of Louise Poirier, ENR and Pam Radtke Russell, ENR Ms. Poirier may be contacted at poirierl@enr.com Ms. Russell may be contacted at Russellp@bnpmedia.com Read the court decision
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Construction and Contract Issues Blamed for Problems at Anchorage Port

August 27, 2013 — CDJ STAFF
A third-party audit of the construction at the Port of Anchorage has found fault with the design provided by the engineers. In response, PND, the engineering firm involved, has claimed that it was not their design, but faulty construction of it that lead to an interruption in the construction project. Separately, the Office of the Inspector General has called into question how MARAD, the agency which oversaw the port construction, handled the planning and contracts for the project. Control of the project has been taken over by the Municipality of Anchorage, and they have called into question PND’s open cell sheet pile design and PND’s design of the dock infrastructure. Simpson, Gumpertz and Heger reviewed the design, comparing it to a design provided by CH2M Hill, and found that the PND design was inadequate. A contract was subsequently awarded to CH2M Hill. Read the court decision
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Florida Court Puts the Claim of Landlord’s Insurer In The No-Fly Zone

March 06, 2023 — William L. Doerler - The Subrogation Strategist
In United States Aviation Underwriters v. Turnberry Airport Holdings, LLC, No. 3D22-270, 2023 Fla. App. LEXIS 1207 (U.S. Aviation), the Court of Appeal of Florida, Third District (Appellate Court) considered whether the insurer for a commercial landlord could pursue subrogation against the landlord’s tenant. Based on the terms of the lease between the landlord and the tenant, the Appellate Court held that the landlord’s insurer could not pursue subrogation. In U.S. Aviation, the defendant, Turnberry Airport Holdings, LLC (Turnberry Airport) leased space to an insured aircraft owner. The lease contained the following provision: TENANT agrees that all policies of insurance obtained by it in connection with the Space or as required hereunder shall contain appropriate waiver of subrogation clauses. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Climate Change a Factor in 'Unprecedented' South Asia Floods

July 18, 2022 — The Associated Press (Aniruddha Ghosal & Al-Emrun Garjon) - Bloomberg
Sylhet, Bangladesh (AP) -- Scientists say climate change is a factor behind the erratic and early rains that triggered unprecedented floods in Bangladesh and northeastern India, killing dozens and making lives miserable for millions of others. Although the region is no stranger to flooding, it typically takes place later in the year when monsoon rains are well underway. This year's torrential rainfall lashed the area as early as March. It may take much longer to determine the extent to which climate change played a role in the floods, but scientists say that it has made the monsoon — a seasonable change in weather usually associated with strong rains — more variable over the past decades. This means that much of the rain expected to fall in a year is arriving in a space of weeks. Read the court decision
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Reprinted courtesy of Bloomberg

Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

May 30, 2022 — William Doerler - The Subrogation Strategist
Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. As stated in W. Bay Plaza, in late 2013 and early 2014, West Bay Plaza Condominium Association (W.B. Plaza Condo. Ass’n) contracted with Built Right Installers International Corporation, R.J. Miranda Consultants, Inc. and UCI Engineering Inc. (collectively, the Construction Defendants) to have repairs done to the exterior of the property. In 2016, Sika Corporation (Sika), a New Jersey corporation, gave a five-year warranty to W.B. Plaza Condo. Ass’n for three sealant products used to repair the garage at the property. In 2019, W.B. Plaza Condo. Ass’n sued the Construction Defendants for breach of contract and professional negligence. Subsequently, W.B. Plaza Condo. Ass’n amended its complaint and filed a claim against Sika, alleging that Sika breached its warranty because its products failed to provide a watertight barrier. Sika filed a motion to dismiss the action, alleging that Florida was an improper venue because its’ warranty contained a mandatory forum selection clause. W.B. Plaza Condo. Ass’n argued that it was not bound by the forum selection clause because it was a non-signatory to the warranty and, even if it was bound by the clause, there were compelling reasons not to enforce it. Read the court decision
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Reprinted courtesy of William Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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