Florida Supreme Court: Notice of Right to Repair is a CGL “Suit,” SDV Amicus Brief Supports Decision
January 10, 2018 —
Gregory Podolak & Brian Clifford - SD&V Case AlertConstruction policyholders in Florida have been given substantial ammunition to compel general liability insurers to provide a defense against pre-suit accusations of defective work. Florida is one of approximately thirty (30) states that require property owners to serve contractors with notice and an opportunity to repair construction defects before filing suit. Only a few states have addressed whether a CGL policy should provide a defense for similar processes. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., decided late in December by the Florida Supreme Court, acknowledged that the 558 process is a “suit,” thus impeding insurers from refusing a defense during this notice period.
Section 558.004(1), Florida Statutes (2012) requires a property owner alleging construction defects to serve a written notice to repair on the contractor before filing an action in court. Altman Contractors built a condominium in Broward County, Florida. In 2012, the condominium owners alleged defects in accordance with Section 558. Altman demanded that its general liability carrier, Crum & Forster, defend and indemnify it against the 558 notices. Crum & Forster denied coverage, claiming that 558 notices are not a “suit” as defined by the policy.
Reprinted courtesy of
Gregory Podolak, Saxe Doernberger & Vita, P.C. and
Brian Clifford, Saxe Doernberger & Vita, P.C.
Mr. Podolak may be contacted at gdp@sdvlaw.com
Mr. Clifford may be contacted at bjc@sdvlaw.com
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Address 'Your Work' Exposure Within CPrL Policies With Faulty Workmanship Coverage
December 29, 2020 —
Joseph Reynolds - Construction ExecutiveNew faulty workmanship coverage forms have emerged to potentially address the “your work” exposure found in most contractors professional liability (CPrL) policies. Once offered by only a single carrier, several insurers have recently entered the marketplace to cover the cost to repair or replace faulty work or the related material costs associated with the “self-performed work” of general and trade contractors.
Commonly serving as a separate insuring agreement and offered in carrier-specific CPrL policies, faulty workmanship coverage forms are designed to protect contractors from the “your work” claims triggered by project owners and other third parties. This includes the contractor’s workmanship as well as the equipment, parts and materials such as steel beams, epoxy activators and anchor bolts used to perform construction work.
Insureds should be aware that exclusions and strict conditions apply. For instance, faulty workmanship policies typically do not cover resulting bodily injury and property damage and some policies even exclude project delays and other business risks that can arise from the claims of unhappy customers. Another potentially confusing issue is the scope of coverage offered under a ‘faulty work’ endorsement. While some faulty workmanship enhancements are specifically-designed to cover “your work,” claims, others may only cover the products manufactured or fabricated by the insured and not the work they perform or install.
Reprinted courtesy of
Joseph Reynolds, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Reynolds may be contacted at
joseph.reynolds@rtspecialty.com
Can Baltimore Get a Great Bridge?
June 21, 2024 —
James S. Russell - BloombergWhen the Francis Scott Key Bridge collapsed
after being struck by a massive container ship early in the morning on March 26, six highway workers were killed, a segment of the Baltimore Beltway was severed, the Port of Baltimore was largely shut down for two months — and the city lost an important piece of its identity.
Before its destruction made it famous, the Key Bridge was not really a landmark like San Francisco’s Golden Gate Bridge or other charismatic spans that serve as symbols for their host cities. Built in 1977, it was a more utilitarian structure, with brawny trusswork that evoked the city’s industrial past, and an important job to do: It could carry the fuel-hauling tanker trucks that are prohibited from traveling through two nearby tunnels. Its visibility at the mouth of Baltimore’s harbor marked it as a prominent link between the modest communities that line the blue-collar waterfront and the glass apartment and office towers that now define the downtown skyline.
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James S. Russell, Bloomberg
Negligent Misrepresentation Claim Does Not Allege Property Damage, Barring Coverage
December 20, 2017 —
Tred Eyerly - Insurance Law Hawaii The Tennessee Court of Appeals reversed the trial court's determination that the seller's alleged negligent misrepresentation regarding the propensity of the property to flood was covered. Erie Ins. Exh. v. Maxwell, 2017 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 15, 2017).
The Chapmans purchased a residence from the Maxwells on March 7, 2014. Prior to the sale, the Maxwells completed a residential property disclosure in which they allegedly misrepresented the propensity of the property to flood. Five months after the purchase, the residence sustained damage as a result of two floods within three days. The Chapmans sued, alleging they relied on the Maxwells' representations regarding the propensity of the property to flood. The Chapmans further alleged that they sustained property damage as a result of the Maxwells' negligence and negligent misrepresentations.
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Tred Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
New Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive Tortfeasors
March 28, 2022 —
Thomas Regan & Karley Kamaris - Lewis BrisboisNewark, N.J. (March 21, 2022) - Late in 2021, the Supreme Court of New Jersey addressed the issue of allocating damages in personal injury cases in which the plaintiff asserts claims against successive tortfeasors, such as medical malpractice in the treatment of a slip and fall injury caused by negligence. The decision in Glassman v. Friedel, 249 N.J. 199 (2021) overruled and replaced the long-held principles established in Ciluffo v. Middlesex General Hospital, 146 N.J. Super. 478 (App. Div. 1977) regarding successive liability. Ciluffo held that, when an initial tortfeasor settles before trial, the non-settling defendants in a successive tort were entitled to a pro tanto credit for the settlement amount against any damages assessed against them. The Superior Court of New Jersey Appellate Division in 2020, and the Supreme Court of New Jersey last year, abandoned that framework for one more consistent with statutory contribution law in the Garden State.
In Glassman v. Friedel, 465 N.J. Super. 436 (App. Div. 2020), the Appellate Division held that the application of the principles in Ciluffo in a negligence case has no support in modern jurisprudence, thus limiting its application. It rejected the holding in Ciluffo in light of the state legislature’s enactment of the Comparative Negligence Act, which requires juries to apportion damages between successive events and apportion fault among the parties responsible for each event. The appellate division went on to hold that a non-settling, successive tortfeasor may present proofs at trial as to the negligence of the settling tortfeasor, and that the burden of proof as to the initial tortfeasor’s negligence being the proximate cause of the second causative event indeed lies on the non-settling defendant. In sum, the appellate division in Glassman established steps the jury can use to determine successive tortfeasor liability, but largely treated it as one, attenuated incident.
Reprinted courtesy of
Thomas Regan, Lewis Brisbois and
Karley Kamaris, Lewis Brisbois
Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com
Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com
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Wildfire Is Efficient Proximate Cause of Moisture Reaching Expansive Soils Under Residence
November 05, 2014 —
Tred R. Eyerly - Insurance Law HawaiiThe court considered whether a wildfire (covered risk) or moisture in the soils (excluded risk) was the cause of damage to the insureds' home. Encompass Ins. Co. v. Berger, 2014 U.S. Dist. LEXIS 142870 (C.D. Cal. Oct. 7, 2014).
In May 2009, the Jesusita Fire caused damage to the insureds' home and surrounding area. The west wall of the house was burned, causing damage to a bedroom. A shed, hot tub, wooden decks and some vegetation, including eucalyptus trees, were damaged.
The insureds submitted a claim to Encompass. Eventually, Encompass spent $400,000 repairing the property.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Enforcement Of Contractual Terms (E.G., Flow-Down, Field Verification, Shop Drawing Approval, And No-Damage-For-Delay Provisions)
May 04, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhat you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v. Turner Construction Co., 2019 WL 7174550 (4th Cir. 2019), where the Court started off by stressing, “One of our country’s bedrock principles is the freedom of individuals and entities to enter into contracts and rely that their terms will be enforced.” Id. at *1.
This case involved a dispute between a prime contractor and its precast concrete subcontractor on a federal project. The subcontractor filed a Miller Act payment bond lawsuit. The trial court ruled against the subcontractor based on…the subcontract’s terms! So, yes, what you contractually agree to matters.
Example #1 – The subcontractor fabricated and installed precast concrete panels per engineering drawings. However, the parking garage was not built per dimensions meaning the panels it fabricated would not fit. The subcontractor had to perform remedial work on the panels to get them to fit. The subcontractor pursued the prime contractor for these costs arguing the prime contractor should have field verified the dimensions. The problem for the subcontractor, however, was that the subcontract required the subcontractor, not the prime contractor, to field verify the dimensions. Based on this language that required the subcontractor to field verify existing conditions and take field measurements, the subcontractor was not entitled to its remedial costs (and they were close to $1 Million). Furthermore, and of importance, the Court noted that the subcontract contained a flow down provision requiring the subcontractor to be bound by all of the terms and conditions of the prime contract and assume those duties and obligations that the prime contractor was to assume towards the owner. While this flow-down provision may often be overlooked, here it was not, as it meant the subcontractor was assuming the field verification duties that the prime contractor was responsible to perform for the owner.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Out of Eastern Europe, a Window Into the Post-Pandemic Office
September 28, 2020 —
Andra Timu & Irina Vilcu - BloombergSpecial quarantine rooms. Floor-to-ceiling walls in bathroom stalls. Touchless entrances that take your temperature. This is what telecommunications company Ericsson’s office building in Bucharest looks like after coronavirus. The space has become the pilot for a 100-prong coronavirus standard that a real estate investor in Eastern Europe is pitching as a new global “immune” building standard.
Liviu Tudor, president of the Brussels-based European Property Federation, hopes the standard will convince more employees to go back to work. He’s gathered a team of experts in construction, health care and engineering, such as such as Adrian Streinu-Cercel, the head of Bucharest's biggest infectious diseases hospital, to develop three tiers of “immune” building certifications that he says are intended to make indoor spaces “pandemic proof.”
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Andra Timu & Irina Vilcu, Bloomberg
