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Ensuing Loss Provision Found Ambiguous

April 25, 2012 — Tred R. Eyerly - Insurance Law Hawaii

After the insurer denied coverage in a homeowner’s policy for construction defects under various exclusions, the court found the ensuing loss provision was ambiguous.Kesling v. Am. Family Mut. Ins. Co., 2012 U.S. Dist. LEXIS 38857 (D. Colo. March 22, 2012).

After purchasing a home from the sellers, the insureds noticed problems with the deck of the home. Massive cracking appeared, causing lifting and leaking on the deck and water running through the exterior foundation wall into the home. There was also damage to the roof and crawlspace.

The insureds had a homeowner’s policy with American Family, which covered accidental direct physical loss to property described in the policy unless the loss was excluded. They requested coverage for "conditions, defects and damages." American Family denied coverage because wear and tear, as well as damage to foundations, floors and roofs were excluded. The policy did provide coverage, however, for "any resulting loss to property described . . . above, not excluded or excepted in this policy.

When coverage was denied, the insureds sued American Family.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Hospital Settles Lawsuit over Construction Problems

December 04, 2013 — CDJ STAFF
The Medical Arts Hospital in Lamesa, Texas has settled a lawsuit against its general contractor, roofing contractor, and two insurance companies for $3.7 million, over alleged construction problems. Ray Stephens, president of the hospital’s board said, “we got enough to fix the major problems and that was our goal in the beginning.” With the settlement, the lawsuit has been dismissed by the court. Read the court decision
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Flushing Away Liability: What the Aqua Engineering Case Means for Contractors and Subcontractors

October 21, 2024 — Heather Zipperer - Colorado Construction Litigation Blog
The recent Town of Mancos v. Aqua Engineering case is an insightful example of how well written contracts and timely legal action can make all the difference in resolving disputes between municipalities, general contractors, and subcontractors. The ruling favored Aqua Engineering; a subcontractor that played a role in a wastewater treatment facility project gone wrong. The court’s decision highlighted key legal principles, including the economic loss rule and the importance of well-structured contracts in construction disputes. Whether you are a subcontractor looking to avoid undue liability or a general contractor seeking to ensure subcontractors shoulder their fair portion of responsibility, this case offers valuable lessons for all parties involved in construction projects. The Background: A Wastewater Project with Issues In 2008, the Town of Mancos, Colorado, hired Souder, Miller & Associates (“SMA”) to design a new wastewater treatment facility. SMA subcontracted Aqua Engineering to help implement a specific wastewater treatment system known as the Multi-Stage Activated Biological Process (“MSABP”). However, after construction, the facility never worked as expected. For years, the Town faced ongoing issues, and despite Aqua’s involvement in attempts to fix the problems, the facility remained dysfunctional. Read the court decision
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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC

Which Cities have the Most Affordable Homes?

October 08, 2014 — Beverley BevenFlorez-CDJ STAFF
Builder analyzed U.S. cities with populations of half a million or more and then filtered further with cities that have a “median new home closing price under $250,000, a first mortgage rate below 4 percent for new homes, and a median new home price per square foot below $125.” Topping the list was El Paso, Texas with the lowest median price ($168,600). Fifth on the list was San Antonio-New Braunfels, Texas with a median price of $230,400. Read the court decision
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3D Printing: A New Era in Concrete Construction

April 11, 2022 — Zoey Zhao - Construction Executive
The construction of buildings using concrete has been around since the time of the Romans. In all those centuries, concrete structures have been built using essentially the same method: forms, reinforcement, mixing, pouring, setting, repeat. The process is costly and time-consuming. The construction of the forms alone demands dozens of workers and requires a substantial amount of lumber, keeping labor and materials costs high. Builders might save some time using prefabricated concrete blocks, but such materials are not appropriate for every construction project and carry their own expenses. For the first time in history, builders have an alternative to traditional concrete construction methods that are more cost-effective, less expensive, more environmentally friendly and allow for a wide range of possible construction projects. Three-dimensional concrete printing for construction has emerged in the building field as a viable and efficient alternative. Reprinted courtesy of Zoey Zhao, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Zhao may be contacted at zoey@aictbuild.com

Connecticut Answers Critical Questions Regarding Scope of Collapse Coverage in Homeowners Policies in Insurers’ Favor

February 10, 2020 — Kevin Sullivan - Traub Lieberman
Nationwide, homeowners’ insurers routinely face foundation wall collapse claims. But in Connecticut, where at least 30,000 homes are believed to have been constructed in the 1980s and 1990s with defective concrete, the scope of homeowners insurance for collapse claims has been a closely watched issue. In Jemiola v. Hartford Casualty Insurance Co., 2019 WL 5955904 (Conn. Nov. 12, 2019), the Supreme Court of Connecticut held that a collapse coverage grant requiring “an abrupt falling down or caving in of a building… with the result that the building… cannot be occupied for its intended purpose” is unambiguous and enforceable. In Jemiola, the insured homeowner purchased her home in 1986 and insured it continuously with the same insurer. In 2006, the homeowner noticed cracking in a basement wall, and was informed that the cracking likely resulted from defective concrete used in the construction of the home. The homeowner made a claim under her policy’s collapse coverage, which the insurer denied because the cracking did not compromise the structural integrity of the foundation walls. In the resulting lawsuit, the insured’s expert opined that the defective concrete substantially impaired the foundation walls’ structural integrity, but that this impairment did not commence until 2006 when the homeowner first noticed the cracking. Accordingly, the court analyzed coverage under the collapse coverage grant in effect in 2006, which defined collapse to mean “an abrupt falling down or caving in of a building… with the result that the building… cannot be occupied for its intended purpose.” Read the court decision
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Reprinted courtesy of Kevin Sullivan, Traub Lieberman
Mr. Sullivan may be contacted at ksullivan@tlsslaw.com

Court Addresses When Duty to Defend Ends

August 24, 2020 — Anthony L. Miscioscia & Margo E. Meta - White and Williams
There are certain generally held principles regarding an insurer’s duty to defend. One of these principles is that an insurer has a duty to defend its insured if the complaint states a claim that potentially falls within the policy’s coverage. However, there is a lack of consistency regarding the point at which the insurers’ duty to defend ends. When the only potentially covered claim has been dismissed, must the insurer continue to defend? Certain jurisdictions, such as Hawaii and Minnesota, have held that an insurer’s duty to defend continues through an appeals process, or until a final judgment has been entered, disposing of the entire case. Commerce & Industry Insurance Company v. Bank of Hawaii, 832 P.2d 733 (Haw. 1992); Meadowbrook, Inc. v. Tower Insurance Company, 559 N.W. 2d 411 (Minn. 1997). Earlier this week, the U.S. District Court for the Eastern District of Pennsylvania took a different approach to this question in Westminster American Insurance Company v. Spruce 1530, No. 19-539, 2020 U.S. Dist. LEXIS 106534 (E.D. Pa. June 17, 2020) – holding that the trial court’s dismissal of the only potentially covered claim was sufficient to terminate Westminster’s duty to defend. Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo E. Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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JD Supra’s 2017 Reader’s Choice Awards

March 22, 2017 — Garret Murai – California Construction Law Blog
JD Supra, one of the world’s leading content distribution companies for the legal industry, announced its Readers’ Choice Awards for 2017 earlier this week. We were honored to be among a group of 200 authors selected from over 40,000 who published legal news, commentary and analysis on legal issues of importance to the clients we serve. 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

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