Second Circuit Finds Potential Ambiguity in Competing “Anti-Concurrent Cause” Provisions in Hurricane Sandy Property Loss
November 28, 2018 —
CDJ STAFFThe Second Circuit recently held that competing “anti-concurrent cause” provisions in a commercial property policy present a potential ambiguity that could result in favor of coverage for losses sustained by Madelaine Chocolate after storm surge from Hurricane Sandy combined to cause substantial damage to Madelaine’s property and a resulting loss of income.
Madelaine was insured under an all-risk insurance policy issued by Chubb subsidiary Great Northern Insurance Company. By endorsement, Madelaine’s policy added “windstorm” as a covered peril and defined “windstorm” as “wind… regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributed in any sequence to, the loss or damage.” The policy also included a common flood exclusion that removed coverage for loss or damage caused by or resulting from waves, tidal water, or tidal waves, or the rising, overflowing, or breaking of any natural harbors, oceans, or any other body of water, whether driven by wind or not. Like the windstorm endorsement, the flood exclusion contained concurrency language that broadened the exclusion to any loss to which flood contributed, regardless of any other cause or event that directly or indirectly contributed to the loss.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Tae Andrews, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Andrews may be contacted at tandrews@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Fannie Mae, Freddie Mac Shares Fall on Wind-Down Measure
March 12, 2014 —
Clea Benson and Cheyenne Hopkins – BloombergCommon shares of Fannie Mae and Freddie Mac experienced their biggest intraday drop in 10 months after leaders of the Senate Banking Committee announced plans to eliminate the companies in a new bill.
Fannie Mae shares tumbled as much as 44 percent, paring the losses to 31 percent to close in New York at $4.03, after Edwin Groshans, a managing director at Washington-based equity research firm Height Analytics LLC, described the proposal as holder-negative. Freddie Mac fell 27 percent to close at $4.04. Preferred shares also dropped, some by as much as 12 percent.
The bipartisan measure, drafted with input from President Barack Obama’s administration, would replace the U.S.-owned mortgage financiers with government bond insurance that would kick in only after private capital suffered losses of at least 10 percent, Senate Banking Committee Chairman Tim Johnson and Senator Mike Crapo said in a statement today. The bill would require most borrowers to make down payments of at least 5 percent.
Ms. Benson may be contacted at cbenson20@bloomberg.net; Ms. Hopkins may be contacted at chopkins19@bloomberg.net
Read the court decisionRead the full story...Reprinted courtesy of
Clea Benson and Cheyenne Hopkins, Bloomberg
Thank You!
February 28, 2022 —
Garret Murai - California Construction Law BlogI would like to thank the Construction Law Subsection of the Los Angeles County Bar Association for awarding me today (on 2/22/22 nonetheless) the 2022 James Acret Award for Outstanding Achievement in Construction Law Legal Writing.
The nominating committee of the subsection includes a veritable Who’s Who of construction law attorneys including Donna Kirkner (Chair), Michael J. Bayard, Theresa C. Tate, Aaron J. Flores, Marilyn Klinger, Marion Hack, John D. Hanover, James C. Earle, L. Adam Winegard, Bernard S. Kamine and Ashley B. Jordan.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Insurance Alert: Insurer Delay Extends Time to Repair or Replace Damaged Property
November 26, 2014 —
Valerie A. Moore & Christopher Kendrick – Haight Brown & Bonesteel LLPIn Stephens & Stephens XII v. Fireman's Fund Ins. (No. A135938, filed November 24, 2014), the plaintiffs obtained property insurance on a warehouse. Within a month, it was discovered to be stripped of all wiring and metal. Fireman's Fund paid for emergency repairs but nothing more, concerned that the damage had occurred outside the policy period.
The policy provided for valuation of either "replacement cost," meaning the expenditure required to replace the damaged property with "new property of comparable material and quality," or "actual cash value," defined as the actual, depreciated value of the damaged property. For replacement cost, Fireman’s Fund was not required to pay "until the lost or damaged property is actually repaired ... as soon as reasonably possible after the loss or damage," and only "[t]he amount [the insured] actually spend[s]...."
In the subsequent bad faith lawsuit, the jury awarded the full cost of repair, despite there being no repairs. The appeals court reversed, holding that there was no right to an immediate award for the costs of repairing the damage; however, the court nonetheless held that the insured was entitled to a "conditional judgment," awarding those costs if repairs were actually made.
Reprinted courtesy of
Valerie A. Moore, Haight Brown & Bonesteel LLP and
Christopher Kendrick, Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com; Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts
November 13, 2023 —
Hal Baker - Colorado Construction Litigation BlogIn a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential.
The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided:
Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature.
Read the court decisionRead the full story...Reprinted courtesy of
Hal Baker, Higgins, Hopkins, McLain & Roswell, LLCMr. Baker may be contacted at
baker@hhmrlaw.com
Defense Victory in Breach of Fiduciary Action
February 26, 2015 —
Beverley BevenFlorez-CDJ STAFFEarlier this month, Scott Calkins and Anthony Gaeta of Collinsworth, Specht, Calkins & Giampaoli, LLP obtained a defense verdict in a breach of fiduciary duty action involving a high-rise condominium in downtown San Diego, California. The Association asked for excess of over $3 million, however, the jury returned with a 10-2 defense verdict in favor of K. Hovnanian.
Cortez Blu Community Association, Inc. v. K. Hovnanian at Cortez Hill, LLC, et al. initially involved construction defect claims against the developer, K. Hovnanian, and the general contractor, Turner Construction, as well as a claim of breach of fiduciary duty. However, the construction defect claims settled prior to trial leaving only the breach of fiduciary claim.
“While it is now becoming ever more common for attorneys representing homeowners associations to allege a breach of fiduciary duty by the developer, there has been little actual litigation of the issues surrounding those claims which test the viability of the allegations or the defenses to them,” defense attorney Anthony Gaeta stated. “A breach of a fiduciary duty by a developer, which is demonstrated to damage the viability of an HOA either to perform regularly scheduled maintenance, or replace building components from its reserves, has the potential in economic terms to surpass the damages from purported construction defects.
The Plaintiff argued that K. Hovnanian breached its fiduciary duty to the Association by failing to set adequate reserves within the initial Department of Real Estate budget (“DRE”) for painting, caulking, and power washing the exterior of the building, referencing Raven’s Cove Townhomes, Inc. v. Knuppe Development Co., Inc. (1981) 114 Cal. App. 3d 783. In response, K. Hovnanian stated that in part, the initial reserves as set forth in the DRE budget were adequate, good faith estimates and, therefore, there was no liability for breach of fiduciary duty.
“Our case was exclusively concerned with the duties of the developer when forming the initial HOA, preliminary budgets, and reserves,” Gaeta said. “We litigated the duties and responsibilities of the initial board and whether a developer may rely on reports prepared by third-parties during the formation of a common interest development. The jury found our client’s actions and reliance on third-parties was reasonable and, thus, no breach of fiduciary duty occurred.”
Collinsworth, Specht, Calkins & Giampaoli is a general civil litigation firm representing clients throughout California and Arizona. You may learn more about the firm at www.cslawoffices.com
Read the court decisionRead the full story...Reprinted courtesy of
Insurer's Refusal to Consider Supplemental Claim Found Improper
June 17, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventy Circuit reversed the district court's finding that the insurer had properly rejected the insured's supplemental claim. Great Lakes Ins. SE v. Concourse Plaza A Condomiium Association, Inc., 2024 U.S. App. LEXIS 8958 (11th Cir. April 15, 2024).
On September 10, 2017, Hurrican Irma struck Concourse Plaza's building, causing wind and water damage. Great Lakes sent a adjuster to inspect the property. The adjuster found damages to the building were $31,035.21, well below the policy's deductible. Accordingly, Great Lakes advised that the net amount of the claim was zero.
Concourse Plaza responded on September 4, 2020, just shy of three years after the cliam accured. Concourse Plaza disputed the damages estimate, but did not include a competing estimate. The letter said an estimate was being prepared and Great Lakes should consider the letter as notice of the intent to pursue additional benefits for the loss pursuant to the policy's notice provisions and Florida law.
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
Congratulations to Partner Alex Giannetto for Being Named to San Diego Business Journal’s Top 100 Leaders in Law List
December 03, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations to Partner Alexander Giannetto for being selected as a “2024 Leaders of Influence in Law” by the San Diego Business Journal! To read and download the SDBJ publication, please click
here.
Alex Giannetto is a managing partner with Bremer, Whyte, Brown & O’Meara LLP’s San Diego office. He has extensive experience in all aspects of civil litigation handling liability matters including slip and falls, catastrophic injuries, wrongful death, traumatic brain injuries, landslides, and construction claims. He has obtained favorable trial results defending clients on personal injury and premises matters in San Diego and Los Angeles. He also has appellate experience. He is an AV-rated attorney by Martindale-Hubbell who has been voted Best of the Bar in San Diego as well as a Top Lawyer in San Diego.
Read the court decisionRead the full story...Reprinted courtesy of
Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
