FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Georgia Supreme Court Determines Damage to "Other Property" Not Necessary for Finding Occurrence

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
The Georgia Supreme Court has determined that an "occurrence" may arise under a CGL policy even if "other property" is not damaged. Taylor Morrison Servs. v. HDI-Gerling Am. Ins. Co., 2013 Ga. LEXIS 618 (Ga. July 12, 2013). Taylor Morrison, the insured, was a homebuilder. It was sued in a class action by more than 400 homeowners in California alleging that the concrete foundations of their homes were improperly constructed. This led to water intrusion, cracks in the floors and driveways, and warped and buckled flooring. At first, HDI-Gerling defended under a reservation of rights. Subsequently, however, HDI-Gerling sued Taylor Morrison in federal district court in Georgia, seeking a declaratory judgment that there was no coverage. The district court granted summary judgment to HDI-Gerling after determining that there was no "occurrence" when the only "property damage" alleged was damage to work of the insured. Georgia law was applied to the dispute. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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Ohio Court of Appeals: Absolution Pollution Exclusion Bars Coverage for Workplace Coal-Tar Pitch Exposure Claims

January 10, 2018 — Complex Insurance Coverage Reporter

On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942.

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Reprinted courtesy of White and Williams LLP

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Arizona Court of Appeals Awards Attorneys’ Fees in Quiet-Title Action

September 20, 2017 — Kevin Walton - Snell & Wilmer Real Estate Litigation Blog
In Arizona, a party successfully quieting title to property may recover its attorneys’ fees if it satisfies three requirements: (1) the party requests a quitclaim deed from the party adversely claiming title twenty days before bringing the quiet-title action; (2) the party tenders five dollars for the execution and delivery of the deed; and (3) the adverse party fails to comply. Ariz. Rev. Stat. § 12-1103(B). Recently, in McCleary v. Tripodi, No. 2 CA-CV 2016-0145, 2017 WL 3723472 (Ariz. Ct. App. Aug. 29, 2017), the Arizona Court of Appeals awarded attorneys’ fees to the prevailing party under this statute. In McCleary v. Tripodi, Mrs. Tripodi, who became the administrator of her husband’s estate upon his death, wrongfully recorded three deeds purporting to transfer property to herself. After unsuccessfully attempting to get Mrs. Tripodi to quitclaim the property, the plaintiffs filed a quiet-title action. The trial court agreed that the plaintiffs were the legal and rightful owners, granted summary judgment in plaintiffs’ favor, and awarded attorneys’ fees to the plaintiffs. Read the court decision
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Reprinted courtesy of Kevin Walton, Snell & Wilmer

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Statute of Limitations Upheld in Construction Defect Case

September 30, 2011 — CDJ STAFF

The Missouri Court of Appeals has ruled in Ball v. Friese Construction Co., finding that Mr. Ball’s claims were barred by the statute of limitations.

Mr. Ball hired Friese Construction Company to build a single-family home. The sale was completed on March 29, 2001. That December, Mr. Ball complained of cracks in the basement floor. SCI Engineering, n engineering firm, hired by Friese, determined that the home’s footing had settled and recommended that Mr. Ball hire a structural engineer to determine if the footings were properly designed and sized. In September 2002, the structural engineer, Strain Engineering, determined that the cracks were due to slab movement, caused in part by water beneath the slab, recommending measures to move water away from the foundation. In 2005, Mr. Ball sent Friese correspondence “detailing issues he was having with the home, including problems with the basement slab, chimney structure, drywall tape, and doors.” All of these were attributed to the foundation problems. In 2006, Friese stated that the slab movement was due to Ball’s failure to maintain the storm water drains.

In 2009, Ball received a report from GeoTest “stating the house was resting on highly plastic clay soils.” He sued Friese in May, 2010. Friese was granted a summary judgment dismissing the suit, as the Missouri has a five-year statute of limitations. Ball appealed on the grounds that the extent of the damage could not be determined until after the third expert report. The appeals court rejected this claim, noting that a reasonable person would have concluded that after the conclusion of SCI and Strain Engineering that “injury and substantial damages may have occurred.”

The court concluded that as there were not “continuing wrongs causing new and distinct damages,” he should have filed his lawsuit after the first two expert reports, not waiting seven years for a third expert to opine.

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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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Wildfire Insurance Coverage Series, Part 5: Valuation of Loss, Sublimits, and Amount of Potential Recovery

July 25, 2022 — Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery Blog
Insurance policies provide different levels of insurance coverage and even if the amount purchased was adequate at one time, developments over time (e.g., inflation, upgrades, regulatory changes and surge pricing) may leave the policyholder underinsured. In this post in the Blog’s Wildfire Insurance Coverage Series, we emphasize the need for policyholders to take a close look at the policy’s terms to select the right type and amount of coverage for a potential loss. Various types of coverage are available and there has been extensive litigation concerning the amount of coverage provided by one policy form or another. For example, the policyholder may have purchased market value coverage (the value of the house at the time of the wildfire), replacement coverage subject to a policy limits cap, guaranteed replacement cost coverage, or some variation on the theme. While the property may be properly valued when the insurance is purchased, it may become undervalued at the time of loss due to factors like inflation or home improvements that were not disclosed to the insurer. And, however generous the limits may be when the policy is procured, as one court discussed, it may be insufficient when “surge pricing” occurs after a wildfire.[1] Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the court decision
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Georgia Federal Court Says Fact Questions Exist As To Whether Nitrogen Is An “Irritant” or “Contaminant” As Used in Pollution Exclusion

May 20, 2019 — Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth
The Southern District of Georgia recently ruled that Evanston Insurance Company is not entitled to summary judgment on whether its policies’ pollution exclusion bars coverage for the release of nitrogen into a warehouse. The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures. Xytex used an on-site “liquid nitrogen delivery system” to keep the material properly cooled. This system releases liquid nitrogen, which would vaporize into nitrogen gas and cool the biological material. On February 5, 2017, a Xytex employee, Deputy Greg Meagher, entered the warehouse to investigate activated motion detectors and burglar alarms. Deputy Meagher was overcome by nitrogen gas and died as a result. Following Deputy Meagher’s death, his heirs filed suit against Xytex and other defendants. Evanston denied coverage based on the pollution exclusion in its policy. Evanston then brought a declaratory judgment action to confirm its coverage position. In denying Evanston’s summary judgment motion, the Southern District of Georgia reasoned that the type of injury sustained is essential in analyzing whether the pollution exclusion applies. Specifically, Xytex argued, and the court agreed, that the underlying lawsuit alleged that the bodily injury was caused by a lack of oxygen, not exposure to nitrogen. The court also distinguished prior decisions, explaining that injury caused by a lack of oxygen is not a contamination or irritation of the body in the same way as injury resulting from exposure to carbon monoxide or lead. The court also found that Xytex “reasonably expected that liability related to a nitrogen leak would be insured.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Lawrence J. Bracken II, Michael S. Levine and Alexander D. Russo Mr. Bracken may be contacted at lbracken@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Russo may be contacted at arusso@HuntonAK.com Read the court decision
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Before and After the Storm: Know Your Insurance Rights, Coverages and Obligations

October 04, 2021 — Hunton Insurance Recovery Blog
This year, like last, the National Oceanic and Atmospheric Administration predicts an extremely active hurricane season. As we write this alert, the Gulf Coast, Mid-Atlantic, New York, and New England regions are just now realizing the devastation Ida has left in her path. Now is the time to ensure your insurance program is hurricane-ready. In this client alert, our insurance coverage team provides critical steps that you should take now to ensure that you protect your assets and maximize recovery in the unfortunate event of a hurricane claim. Know Your Coverage: What Does Your Policy Say and Where Can It Be Found? Obtain copies of your relevant property insurance forms and read them now. Knowing your coverage, even on a general level, will help you anticipate the immediate steps to take following a loss, including how to notify your insurer of losses to your covered property. Read the court decision
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Reprinted courtesy of Hunton Andrews Kurth

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