Cambridge Massachusetts Building Expert Directory

No Duty to Defend Suit That Is Threatened Under Strict Liability Statute

July 09, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Washington Court of Appeals found there was no duty to defend the insured under a strict liability statute for alleged contamination when no action was threatened by the agency. Gull Indus., Inc. v. State Farm Fire and Cas. Co., 2014 Wash. App. LEXIS 1338 (Wa. Ct. App. June 2, 2014). Gull leased a gas station to the Johnsons from 1972 to 1980. In 2005, Gull notified the Department of Ecology (DOE) that there had be a release of petroleum product at the station. DOE sent a letter acknowledging Gull's notice of suspected contamination. In 2009, Gull tendered its defense to its insurer, Transamerica Insurance Group. Gull also tendered its claims as an additional insured to the Johnson's insurer, State Farm. Neither insurer accepted the tenders. Gull then sued the insurers, arguing they had a duty to defend. Gull contended that because the state statute imposed strict liability, the duty to defend arose whether or not an agency had sent any communications about the statute or cleanup obligations. The insurers moved for partial summary judgment. The trial court ruled in favor of the insurers. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

"Your Work" Exclusion Bars Coverage for Contractor's Faulty Workmanship

December 02, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The West Virginia Supreme Court of Appeals found there was no coverage for the contractor's faulty workmanship in constructing a home. State of W. Virginia ex rel. Nationwide Mut. Ins. Co. v. The Honorable Ronald E. Wilson, 2015 W. Va. LEXIS 963 (W. Va. Oct. 7, 2015). In July 2009, Fred Hlad contracted to build a home for the Nelsons and complete construction by November 2009. The Nelsons sued when the house was not timely completed. Nationwide defended under a reservation of rights, but then filed a declaratory judgment action.The circuit court denied Nationwide's request for declaratory relief, determining that the defective workmanship was an "occurrence." Nationwide petitioned the Supreme Court for a writ of prohibition. On appeal, Nationwide argued that eight of the nine counts in the Nelsons' complaint were not caused by his defective workmanship. These allegations included breach of contract claims and intentional torts. Nationwide submitted it was not obligated to indemnify Hlad for damages that may be recovered on those counts. The court agreed that Nationwide's duty to indemnify was limited only to those claims that triggered coverage. Accordingly, Nationwide had no duty to indemnify for the eight counts alleging breach of contract and intentional torts. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Insured Entitled to Defense After Posting Medical Records Online

September 17, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The insurer had a duty to defend the insured contractor's publication of medical records online, making them accessible to anyone. Travelers Indem. Co. of Am. v. Portal Heathcare Solutions, LLC, 2014 U.S. Dist. 110987 (E.D. Va. Aug. 7, 2014). Portal specialized in safekeeping of medical records for hospitals, clinics, and other medical providers. Portal was sued in a class action suit filed in New York state court for failing to safeguard the confidential medical records of patients at Glen Falls Hospital. Two patients of Glen Falls conducted a Google search of their respective names, and found a direct link to their Glen Falls medical records. Travelers provided policies to Portal in 2012 and 2013, obligating Travelers to cover damages because of injury arising from (1) the "electronic publication of material that . . . gives unreasonable publicity to a person's private life" (the 2012 policy) or (2) the "electronic publication of material that . . . disclosed information about a person's private life" (the 2013 policy). Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Waiver of Subrogation and Lack of Contractual Privity Bars Commercial Tenants’ Claims

May 08, 2023 — Melissa Kenney - The Subrogation Strategist
In United States Automatic Sprinkler Corporation v. Erie Insurance Exchange, et al., No. 2SS-CT-264, 2023 Ind. LEXIS 105, the Supreme Court of Indiana (Supreme Court) reversed an order of the trial court that denied a motion for summary judgment filed by a sprinkler contractor. At issue was whether commercial tenants – one who contracted with the sprinkler contractor and others who did not – could recover for their respective property damages. The court held that under the contract’s subrogation waiver and agreement to insure, the contracting tenant waived its insurer’s rights to recover through subrogation. With respect to the non-contracting tenants, who sought to recover only property damages, the court held that the absence of contractual privity barred their recovery. The case centered around a sprinkler system that malfunctioned and flooded the Sycamore Springs Office Complex (Landlord), causing extensive property damage to four commercial tenants. Surgery Center, one of the four tenants, requested permission from the Landlord to install a sprinkler system inside the building. Landlord agreed, in exchange for Surgery Center agreeing to be solely responsible for maintaining the sprinkler system. Surgery Center hired United States Automatic Sprinkler (Automatic Sprinkler) to both install and conduct periodic inspection and testing of the sprinkler system. The contract terms outlined the scope of work to be performed by Automatic Sprinkler and the work was limited to the inspection and testing of the sprinkler system. Although repairs and emergency services were excluded from the contract, each could be performed upon the request and authorization of Surgery Center for an additional cost. The contract also contained certain risk allocation provisions including a waiver of subrogation and an agreement to insure. Read the court decision
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Reprinted courtesy of Melissa Kenney, White and Williams LLP
Ms. Kenney may be contacted at kenneyme@whiteandwilliams.com

The Show Must Go On: Shuttered Venues Operators Grant Provides Lifeline for Live Music and Theater Venues

March 29, 2021 — David Rao - Snell & Wilmer Real Estate Litigation Blog
Although it’s been a tough twelve months for many live music venues, movie theaters, and performing arts organizations, help may finally be around the corner. On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act was signed into law, creating a $15 billion fund for grants to shuttered venues to be administered by the Small Business Administration’s (“SBA”) Office of Disaster Assistance. The law states that Shuttered Venues Operator Grants (“SVOGs”) will be made available to the following entities and individuals:

Live venue operators or promoters;
Theatrical producers;
Live performing arts organization operators;
Relevant museum operators, zoos, and aquariums which meet specific criteria;
Movie theater operators;
Talent representatives; and
Each business entity owned by an eligible entity that also meets the eligibility requirements.

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Reprinted courtesy of David Rao, Snell & Wilmer
Mr. Rao may be contacted at drao@swlaw.com

Milwaukee's 25-Story Ascent Stacks Up as Tall Timber Role Model

January 25, 2021 — Nadine M. Post - Engineering News-Record
In January 2019, Preston Cole left his post as Commissioner of the Milwaukee Dept. of Neighborhood Services and became Secretary of Wisconsin’s Dept. of Natural Resources. It was a step up for the 25-year veteran of public service—a forester by profession—who as the city’s top building official had reformed DNS by fostering a developer-friendly environment. Reprinted courtesy of Nadine M. Post, Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the full story... Read the court decision
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Candlebrook Adds Dormitories With $230 Million Purchase

November 05, 2014 — John Gittelsohn - Bloomberg
Candlebrook Properties LLC, a closely held company with about 5,000 apartments in the eastern U.S., is diversifying into student housing with the $230 million acquisition of five off-campus properties. Candlebrook joined with Lubert-Adler Partners on the purchase of buildings with about 3,400 beds near colleges in Georgia, Indiana, Kentucky and Virginia. Formerly known as Vantage Properties LLC, Candlebrook began as an investor in New York City apartments in 2005 and later expanded to New Jersey and the Philadelphia area. “Student housing is a natural extension of our pre-existing business line,” Neil Rubler, president of New York-based Candlebrook, said in a telephone interview. It’s “a business that’s far less crowded than multifamily, which has been our core business.” Capitalization rates on apartments, a measure of profitability, have dropped as investors drive up property prices. Student housing has become an attractive alternative, luring homebuilder Toll Brothers Inc. (TOL) and private-equity firm Colony Capital LLC to an industry already home to real estate investment trusts American Campus Communities Inc. (ACC), Campus Crest Communities Inc. (CCG) and Educational Realty Trust Inc. (EDR) Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

Insured's Claim for Replacement Cost Denied

December 02, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Illinois Appellate Court affirmed the trial court's ruling that the insured was only entitled to the actual cost value of his loss, not the replacement cost. Lytle v. Country Mutual Ins. Co., 2015 Ill. App. LEXIS 756 (Sept. 30, 2015). The insured's home was built around 1903. On June 21, 2011, the insured discovered damage to his home because of a severe storm. He made a claim with his insurer, Country Mutual. The policy contained a depreciation holdback provision. The provision said the insurer would not pay more than the actual cash value until the actual repair or replacement was complete. If the insured elected to accept actual cash value, he would have one year from the date of the loss to repair or replace the damaged property and request the difference between the actual cash value and the replacement cost. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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