Fungi, Wet Rot, Dry Rot and "Virus": One of These Things is Not Like the Other
November 02, 2020 —
Hugh D. Hughes - Saxe Doernberger & VitaThe Hartford’s so-called virus exclusion in its commercial property forms is getting a workout, and policyholders now have an argument that may help their cases move past the pleadings stage. A U.S. District Court in Florida has deemed the exclusion ambiguous and denied an insurer’s motion to dismiss.1 The exclusion applies to “presence, growth, proliferation, spread, or any activity of ’fungi’, wet rot, dry rot, bacteria or virus.”2 The Court held that the parties did not necessarily intend to exclude a pandemic.
In Urogynecology, the plaintiff sought coverage for the loss of the usefulness and functionality of its business location due to the Florida Governor’s shutdown order. The policy contained a 'fungi', wet rot, dry rot, bacteria, or virus” exclusion.3 The carrier moved to dismiss, and the plaintiff argued that the exclusion only applied if COVID-19 was present on-site, which was not the case.
The Court addressed none of the issues regarding direct physical loss and instead decided the motion on the fungi exclusion. The Court held the exclusion ambiguous because the exclusion of virus “does not logically align with the grouping of the virus exclusion with other pollutants such that the Policy necessarily anticipated and intended to deny coverage for these kinds of business losses.”5 In addition, the Court stated that pollution case law was not on point because “none of the cases dealt with the unique circumstances of the effect COVID-19 has had on our society – a distinction this Court considers significant.”
Read the court decisionRead the full story...Reprinted courtesy of
Hugh D. Hughes, Saxe Doernberger & VitaMr. Hughes may be contacted at
hdh@sdvlaw.com
Thousands of London Residents Evacuated due to Fire Hazards
June 29, 2017 —
David Suggs – Bert L. Howe & Associates, Inc.Nearly 4,000 residents were ordered by municipal authorities to “urgently evacuate apartments in five London high-rise buildings…after fire inspectors warned that the safety of the residents could not be guaranteed,” reported the New York Times. Displaced families were urged to find shelter with family or friends, but temporary accommodations were offered. Repairs may take up to four weeks.
The five London towers that were evacuated all contain the same exterior cladding and insulation that is similar to what was used in Grenfell Tower, where 79 people died in fire only the preceding week, according to the New York Times. Camden Council stated that the cladding material would be removed. They had ordered noncombustible cladding, but later learned that combustible cladding had been installed.
“Preliminary tests on the insulation samples from Grenfell Tower show that they combusted soon after the test started,” Detective Superintendent McCormack said in a televised statement, as quoted by the New York Times. “Cladding tiles had also failed initial tests,” she continued.
Read the court decisionRead the full story...Reprinted courtesy of
7 Ways Technology is Changing Construction (guest post)
July 28, 2018 —
Melissa Dewey Brumback - Construction Law in North CarolinaToday, we have a guest post by Eric Weisbrot, Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog. Welcome, Eric!
It is difficult to argue that technology is having minimal impact on society as a whole. Not only are digital enhancements making waves on the consumer side of the line, but businesses are feeling the effects as much if not more in recent years. The construction industry is no exception to this technological shift, but the influence the change is having on licensed construction contractors and long-standing businesses is far-reaching. Here are several ways technology is disrupting construction on a day to day basis.
#1. Autonomous Equipment. One of the most notable changes in construction is the addition of autonomous equipment on job sites. Several technology-focused companies are currently testing and perfecting construction machines that require no human interaction to operate. The hope behind this shift is to reduce the impact of the labor shortage in the industry while improving efficiency and productivity on each job.
Read the court decisionRead the full story...Reprinted courtesy of
Melissa Dewey Brumback, Ragsdale Liggett, PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
South Adams County Water and Sanitation District Takes Proactive Step to Treat PFAS, Safeguard Water Supplies
November 28, 2022 —
Cameron McWilliam – Brown and CaldwellDENVER, Colo., Nov. 15, 2022 — The South Adams Country Water and Sanitation District (District) is enhancing its water treatment process to meet EPA Health Advisory Levels (HALs) for per- and polyfluoroalkyl substances (PFAS) in drinking water supplies.
Deemed “forever chemicals,” PFAS is a group of human-made chemicals used in many applications, including stain- and water-resistant fabrics and carpeting, cleaning products, paints, and firefighting foams. PFAS are resistant to grease, oil, water, and heat and may enter water supplies from landfills, the use of firefighting foam (e.g., at airports, fire training facilities, petroleum fires, etc.), industrial sites, and wastewater treatment plant discharge.
The District’s water supply, serving over 67,000 residents in Commerce City and parts of unincorporated Adams County, comes primarily from 13 groundwater supply wells. As it continues to meet all federal and state drinking water requirements, the District has been proactively pursuing PFAS reduction strategies since it first discovered a low-level presence in its water supply through voluntary testing in 2018. Upon discovery, the District stopped drawing from its most impacted wells and has been purchasing additional treated water to blend into its supply to reduce PFAS levels along with optimizing use of their existing granular activated carbon treatment system.
“Ever since the District first began voluntarily testing for PFAS, we have been monitoring for these compounds and working to reduce their impact on our customers,” said District Manager Abel Moreno. “The EPA has moved the goalposts, and we are taking steps to reduce the presence of PFAS even further. We are committed to finding long-term, sustainable solutions to offer our community high-quality drinking water.”
To tackle the challenge, the District has hired leading environmental and construction services firm Brown and Caldwell to design a new 18 million gallons per day (MGD) ion exchange (IX) process at its Klein Water Treatment Facility. IX treatment is currently the most effective technology in removing PFAS/PFOA, consisting of a highly porous resin that acts as a powerful magnet to adsorb and hold onto the substances. The new system at the Klein facility will consist of seven IX treatment trains, a 375,000-gallon equalization tank, and six vertical turbine pumps to feed the IX trains from the District’s 13 groundwater supply wells.
Furthermore, nine 5-micron cartridge filters will be installed to remove particulate matter in the water before reaching the IX trains, thus increasing the efficacy of the treatment process.
Scheduled for completion by the end of 2026, the new IX treatment facility will provide a peak combined capacity of 26 MGD.
About South Adams County Water and Sanitation District
The South Adams County Water and Sanitation District is a special district providing water and sanitary sewer service to over 67,000 residents in Commerce City and parts of unincorporated Adams County. For more information about the District, please visit www.sacwsd.org
About Brown and Caldwell
Headquartered in Walnut Creek, California., Brown and Caldwell is a full-service environmental engineering and construction services firm with 52 offices and 1,800 professionals across North America and the Pacific. For 75 years, our creative solutions have helped municipalities, private industry, and government agencies successfully overcome their most challenging water and environmental obstacles. As an employee-owned company, Brown and Caldwell is passionate about exceeding our clients’ expectations and making a difference for our employees, our communities, and our environment. For more information, visit www.brownandcaldwell.com
Read the court decisionRead the full story...Reprinted courtesy of
Insurance Policy Provides No Coverage For Slab Collapse in Vision One
August 17, 2011 —
Douglas Reiser, Builders Council BlogThis post will examine whether Division Two of the Washington Court of Appeals properly reversed and remanded several lower court decisions in the case of Vision One LLC v. Philadelphia Indemnity Insurance. In short, and from the perspective of an appellate attorney, the court of appeals got the decision right. Given the rules of contract interpretation and causation in tort claims, there was really no other way the court could have ruled. I understand that from a contractor’s perspective and insurance perspective, the decision seems odd. But from a purely legal standpoint, the decision is well-reasoned and well-supported. Let me explain.
Background
First, here are the facts in a nutshell. Vision One is a construction company that undertook to construct a condo complex in Tacoma. Vision then contracted with D&D Concrete to pour a concrete slab for a section of the foundation. To shore the concrete slab, D&D further contracted Berg Equipment to provide necessary equipment to stabilize the structure. Well, something down the line went wrong. The shoring failed and the slab collapsed, causing a great deal of damage.
Read the full story…
Read the court’s decision…
Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
Read the court decisionRead the full story...Reprinted courtesy of
COVID-19 Response: Environmental Compliance Worries in the Time of Coronavirus
April 20, 2020 —
Karen Bennett, Jane Luxton, William Walsh & Amanda Tharpe - Lewis BrisboisEarlier this week, a rumor made the rounds that a forthcoming Presidential Executive Order would impose a nationwide mandate that all employees work remotely. While the rumor proved baseless, it raised questions about manufacturers’ abilities to comply with environmental permit obligations in the event of a COVID-19 precipitated operational shutdown due to federal or state mandates or workforce depletion resulting from widespread illness. Previous emergencies offer some insights on what to expect as companies and their counsel assess environmental business risk.
In the wake of Hurricane Katrina, several bills were introduced in Congress that would have allowed the Environmental Protection Agency (EPA) to waive or modify requirements, issue emergency permits, or expedite permits as needed to respond to disaster and recovery needs. In the end, no new legislation was enacted, because existing emergency powers under environmental statutes proved sufficient to allow for waiver of regulatory requirements or exercise of enforcement discretion. Key provisions include the following:
- The Clean Water Act’s (CWA) affirmative defense for “upset” conditions. This provision excuses non-compliance with technology-based permit effluent limitations due to factors outside the permittee’s control. Criteria for establishing the defense include: 1) the upset occurred and the permittee can identify the cause, 2) the permitted facility was at the time being properly operated, 3) the permittee submitted notice of the upset (24 hour notice), and 4) the permittee complied with any remedial measures required under 40 C.F.R. §122.41(d).
Reprinted courtesy of Lewis Brisbois Bisgaard & Smith attorneys
Karen Bennett,
Jane Luxton,
William Walsh and
Amanda Tharpe
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
Mr. William may be contacted at William.Walsh@lewisbrisbois.com
Ms. Amanda may be contacted at Amanda.Tharpe@lewisbrisbois.com
Read the court decisionRead the full story...Reprinted courtesy of
Texas Supreme Court Holds that Invoking Appraisal Provision and Paying Appraisal Amount Does Not Insulate an Insurer from Damages Under the Texas Prompt Payment of Claims Act
September 16, 2019 —
John C. Eichman & Grayson L. Linyard - Hunton Insurance Recovery BlogIn two cases decided June 28, 2019, the Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the Texas Prompt Payment of Claims Act (“TPPCA”). But, on the other hand, the court also held that the insurer’s payment of the appraisal award does not as a matter of law establish its liability under the policy for purposes of TPPCA damages.
In Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2666484, at *1 (Tex. June 28, 2019), State Farm Lloyds issued property insurance to Barbara Technologies Corporation for a commercial property. A wind and hail storm damaged the property, and Barbara Tech filed a claim under the policy. State Farm denied the claim, asserting that damages were less than the $5,000 deductible.
Barbara Tech filed suit against State Farm, including for violation of the TPPCA. Six months later, State Farm invoked the appraisal provision of the policy. More than a year after the suit was filed, appraisers agreed to a value of $195,345.63. State Farm then paid that amount, minus depreciation and the deductible. Barbara Tech amended its petition to include only TPPCA claims.
Reprinted courtesy of
John C. Eichman, Hunton Andrews Kurth and
Grayson L. Linyard, Hunton Andrews Kurth
Mr. Eichman may be contacted at jeichman@HuntonAK.com
Mr. Linyard may be contacted at glinyard@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Hawaii Appellate Court Finds Appraisers Limited to Determining Amount of Loss
April 25, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Hawaii Intermediate Court of Appeals determined that appraisers cannot decide what amount is owed by the insurer after loss, but are limited to finding the amount of the loss. Krafchon v. Dongbu Ins. Co., Ltd., 2023 Haw. App. LEXIS 43 (Haw. Ct. App. Feb. 17, 2023).
The insureds owned three structures on the property on Maui: the Villa; the Cottage; and the Garage. The three structures were insured under homeowners and dwelling fire policies issued by Dongbu. When the structures were damaged by wildfire, Dongbu tendered over $300,000 under a reservation of rights, pending preparation of a final settlement. There was disagreement over the total amount of the loss.
The insureds invoked the appraisal provision of the policies. When Dongbu failed to appoint an appraiser, the insureds sued. The trial court granted the insureds' motion to compel appraisal.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
