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NJ Supreme Court Declines to Review Decision that Exxon Has No Duty to Indemnify Insurers for Environmental Liability Under Prior Settlement Agreement

November 29, 2021 — Patricia B. Santelle & Laura Rossi - White and Williams
On November 1, 2021, in a single-sentence Order, the Supreme Court of New Jersey denied a request for review of a decision that ExxonMobil Corporation (Exxon) did not have to indemnify certain of its insurers over environmental liabilities as required by a previous settlement agreement. The case, entitled Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history but, in short, the denial of review leaves standing a holding by the intermediate appellate court that the insurers’ “untimely notice actually prejudiced Exxon, violated the no-prejudice rule, and breached the covenant of good faith and fair dealing.” The court declined to consider the question framed by the insurers: whether the importance of enforcing settlement agreements outweighs New Jersey’s entire controversy doctrine. The matter dated back almost thirty years, when the New Jersey Department of Environmental Protection notified the Appearing London Market Insurers (ALMI) of the potential liability of Cornell-Dublier Electronics (CDE), a former indirect subsidiary of Exxon, for pollution at a site in New Jersey. Coverage litigation followed in New Jersey, which ALMI defended under policies issued to CDE. Exxon was not named in the CDE suit nor were the policies which ALMI issued to Exxon at issue in that case; Exxon instead had its own pollution coverage case pending in New York. In June 2000, Exxon and its insurers, including ALMI, entered into a settlement agreement which (a) required Exxon to indemnify the insurers for any environmental liability claims involving its subsidiaries, and (b) provided for application of New York substantive law and litigation in New York City court for any dispute between the parties under it. Reprinted courtesy of Patricia B. Santelle, White and Williams and Laura Rossi, White and Williams Ms. Santelle may be contacted at santellep@whiteandwilliams.com Ms. Rossi may be contacted at rossil@whiteandwilliams.com Read the court decision
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Real Estate & Construction News Roundup (6/4/24) – New CRE Litmus Tests, Tech Integration in Real Estate and a Jump in Investor Home Purchases

July 02, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, big bank exposure to CRE lending grows, concerns for the construction industry abound, U.S. hotel securitized loans come due, and more!

• At some of the world’s biggest banks, loans to commercial real estate face new litmus tests that promise to shape the sector’s access to financing. (Frances Schwartzkopff and Gautam Naik, Bloomberg)
• Big banks’ exposure to CRE lending grows by about 40% when indirect lending to REITs is added. (Todd Gillespiev, Bloomberg)
• Cybersecurity threats, cost overruns, high interest rates, labor shortages and an economic downturn dominate the concerns of the construction industry. (Sebastian Obando, Construction Dive)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Florida Duty to Defend a Chapter 558 Right to Repair Notice

July 30, 2015 — Scott Patterson – CD Coverage
In Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., 2015 WL 3539755 (S.D. Fla. 2015), Altman was the general contractor for a residential condominium project. The condominium association served Altman with Chapter 558 notices. A Chapter 558 notice is a statutory prerequisite to a property owner’s construction defect lawsuit and provides the contractor with an opportunity to respond and avoid litigation. Altman demanded that its CGL insurer, Crum & Forster, provide a defense to the Chapter 558 notices by hiring counsel to represent Altman’s interests. While not disputing that the claimed defects may be covered under the policy, Crum & Forster denied any duty to defend against the notices on the basis that they did not constitute a “suit.” Altman filed suit. Read the court decision
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Reprinted courtesy of Scott Patterson, CD Coverage

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EEOC Issues Anti-Harassment Guidance To Construction-Industry Employers

July 22, 2024 — Christopher Kelleher & Andrew Scroggins - The Construction Seyt
Seyfarth Synopsis: The Equal Employment Opportunity Commission (“EEOC”) has issued guidance tailored to the construction industry regarding compliance with anti-harassment laws. This lines up with our prediction in early 2024 that the EEOC had put the construction industry squarely in its sights. The guidance is important for construction-industry leaders and employers to understand to prevent and remedy workplace harassment, and to avoid potential harassment liability. On June 18, 2024, the EEOC issued its Promising Practices for Preventing Harassment in the Construction Industry. This guidance provides key recommendations that construction-industry leaders and employers should consider implementing to prevent and address harassment in the workplace, and avoid being the target of the EEOC’s enforcement efforts. The guidance is intended to supplement the EEOC’s Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028, which provides direction on the EEOC’s current objectives, principles, and enforcement efforts – among them, increasing diversity in the construction industry and remedying harassment. (We’ve written previously about the proposed and final SEP.) Reprinted courtesy of Christopher Kelleher, Seyfarth and Andrew Scroggins, Seyfarth Mr. Kelleher may be contacted at ckelleher@seyfarth.com Mr. Scroggins may be contacted at ascroggins@seyfarth.com Read the court decision
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Insurer Must Defend Where Possible Continuing Property Damage Occurred

January 13, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeal overturned the trial court's issuance of summary judgment based upon the possibility of continuing property damage during the insurer's policy period. Tidwell Enters. v. Fin. Pac. Ins. Co., 2016 Cal. App. LEXIS 1038 (Cal. Ct. App. Nov. 29, 2016). Financial Pacific insured Greg Tidwell, Tidwell Enterprises, Inc. and Tidwell Enterprises Fireplace Division (Tidwell) under CGL policies issued between March 2003 and March 2010. In 2006 or 2007, Tidwell installed a fireplace in a home. On November 11, 2011, 20 months after the end of the last policy period of Financial Pacific's coverage, the home owned by Kendall Fox, was damaged by fire. Fox was insured by State Farm. State Farm's attorney advised Tidwell of the fire, and Tidwell forwarded the information to Financial Pacific. State Farm hired an investigator who reported that the fire was caused by the installation of an "unlisted shroud at the top of the chimney chase". This prevented the fireplace from drafting properly, resulting in overheating of the fireplace and heat transfer to the surround wood framing members. This resulted in the ignition of the framing members at the sides, top and bottom of the fireplace. State Farm sent the report to Financial Pacific. 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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Hovnanian Reports “A Year of Solid Profitability”

December 30, 2013 — CDJ STAFF
Hovnanian Enterprises has released its results for its fourth quarter and the twelve months ending in October 2013, which are described by Ara K. Havnanian, the company’s Chairman of the Board, President and Chief Executive Officer as “a year of solid profitability,” which he attributes to “revenue growth, gross margin improvement and operating efficiencies,” as reported by The Wall Street Journal. The company’s total revenues for 2013 were $1.85 billion, a 24.2% increase over the 2012 totals. Home sales totaled 5,930, a 10.7% increase over the prior year. Mr. Hovnanian expects “increased demand for new homes,” and he believes that “our industry is still in the early stages of a housing recovery.” Read the court decision
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Tidal Lagoon Plans Marine Project to Power Every Home in Wales

March 05, 2015 — Louise Downing – Bloomberg
(Bloomberg) -- Tidal Lagoon Power Ltd., a U.K. marine-energy developer, is planning its second project, a 2.8-gigawatt power plant that will use the tides to generate enough electricity for every home in Wales. The company submitted an environmental impact assessment for the marine power plant that would use 90 turbines installed between Cardiff and Newport, according to an e-mailed statement Monday. The closely held company expects to submit a full planning application in 2017 and the project may go into operation in 2022. Read the court decision
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Reprinted courtesy of Louise Downing, Bloomberg
Ms. Downing may be contacted at ldowning4@bloomberg.net

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Traub Lieberman Attorneys Burks Smith and Katie Keller Win Daubert Motion Excluding Plaintiff’s Expert’s Testimony in the Middle District of Florida

September 20, 2021 — Burks A. Smith, III & Kathryn Keller - Traub Lieberman
Traub Lieberman Partner, Burks Smith, and Associate, Katie Keller, represented a national property insurer in a breach of contract action brought by a homeowner in the Middle District of Florida for substantial property damage alleged to have been caused by hail and wind. Throughout the course of litigation, the homeowner disclosed his expert, which is the same individual that prepared the homeowner’s estimate of damages and causation report. The expert’s credentials list that he is a general contractor, independent adjuster, and inspector. Mr. Smith and Ms. Keller moved under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702 to exclude testimony and introduction of any evidence prepared by the homeowner’s expert. Mr. Smith and Ms. Keller argued that the homeowner’s expert was not qualified to render expert testimony in this case, as he did not have the requisite qualifications to render an expert opinion, the methodology utilized by the expert to form his opinion was not sufficiently reliable, and his anticipated testimony was not helpful in the case, as it is imprecise and unspecific. Therefore, the expert’s opinions did not meet the standards for admission of expert testimony as set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and should not be admitted as expert testimony at trial. Reprinted courtesy of Burks A. Smith, III, Traub Lieberman and Kathryn Keller, Traub Lieberman Mr. Smith may be contacted at bsmith@tlsslaw.com Ms. Keller may be contacted at kkeller@tlsslaw.com Read the court decision
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