Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals
December 11, 2023 —
Jason Taylor & Danielle K. Kegley - Traub LiebermanIn this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor of the Carrier in a coverage lawsuit. The coverage lawsuit involved a priority dispute between the Carrier and another insurer over which company’s policy had responsibility to cover the defense of their mutual insured, a heating and cooling contractor (the “Insured”) in an underlying lawsuit alleging carbon monoxide poisoning. The Carrier issued a contractor’s pollution liability policy and the other insurer issued a commercial general liability policy to the Insurer. Both the Carrier and the other insurer filed cross-motions for summary disposition in the trial court on the priority of coverage issue. The trial court granted the Client’s motion, holding that the CGL carrier was the primary insurer based on the language in the policies’ “other insurance” clauses. The trial court rejected the CGL carrier’s argument to apply the “total policy insuring intent” or “closest to the risk” tests—tests which Michigan courts have not adopted. Specifically, the court rejected the CGL carrier’s argument that the Client’s contractor’s pollution liability policy was more specifically tailored to the loss in the underlying lawsuit. The trial court also rejected CGL carrier’s alternative argument that the “other insurance” clauses in the policies were irreconcilable, requiring a pro rata allocation based on the respective limits of the policies.
Reprinted courtesy of
Jason Taylor, Traub Lieberman and
Danielle K. Kegley, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com
Ms. Kegley may be contacted at dkegley@tlsslaw.com
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Consequential Damages Can Be Recovered Against Insurer In Breach Of Contract
July 22, 2019 —
David Adelstein - Florida Construction Legal UpdatesIn a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.” Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted). Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract.
In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent. However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
No Duty to Defend Suit That Is Threatened Under Strict Liability Statute
July 09, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe 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.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
ACS Recognized by Construction Executive Magazine in the Top 50 Construction Law Firms of 2021
September 06, 2021 —
Ahlers Cressman & Sleight PLLCACS is pleased to announce that the firm has been recognized by Construction Executive magazine in The Top 50 Construction Law Firms™ for 2021. Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.
ACS is known for our depth of knowledge of the construction industry and experience in construction law. Our lawyers hold leadership positions within state and national industry organizations. Two of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section and the current chair, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and the majority of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters.
Since it was first published in 2003, Construction Executive has become the leading trade magazine for news, market developments, and business issues impacting the construction industry. The magazine reaches more than 55,000 commercial, industrial, and institutional contractors and construction-related business owners. Each issue of Construction Executive includes articles designed to help owners and top managers run a more profitable and productive construction business.
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Ahlers Cressman & Sleight PLLC
Traub Lieberman Attorneys Named 2019 Super Lawyers
November 04, 2019 —
Traub LiebermanRelated Attorneys:
Jonathan R. Harwood,
Michael K. Kiernan,
Michael S. Knippen,
Meryl R. Lieberman,
Christopher Russo,
Scot E. Samis,
Lisa L. Shrewsberry,
Stephen D. Straus,
Richard K. Traub,
Cheryl P. Vollweiler,
Brian C. Bassett,
Jessica N. Kull,
Jeremy S. Macklin,
Dana A. Rice,
Burks A. Smith, III,
Jason Taylor
Ten Traub Lieberman attorneys have been named 2019 Super Lawyers and seven named 2019 Rising Stars. The honored attorneys represent five of the firm's seven offices and nearly all of its service areas.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas, who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.
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President Obama Vetoes Keystone Pipeline Bill
February 26, 2015 —
Angela Greiling Keane - Bloomberg(Bloomberg) -- President Barack Obama issued his third veto Tuesday to reject legislation that would allow construction of the Keystone XL pipeline, escalating a battle over the project with Republicans in Congress.
Notice of the long-expected veto was released without fanfare via a message to the Senate just hours after the bill formally arrived at the White House. The Senate has agreed to hold a vote on overriding the veto no later than March 3.
Obama has repeatedly said a State Department review of the TransCanada Corp. project -- which would carry crude oil produced in Alberta, Canada, south through the U.S. -- should proceed before a decision is made on whether to allow construction of the $8 billion pipeline.
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Angela Greiling Keane, Bloomberg
Insurance for Large Construction Equipment Such as a Crane
July 30, 2018 —
David Adelstein - Florida Construction Legal UpdatesMany, many projects require the use of a crane. The skyline is oftentimes filled with the sight of cranes—one after the other. Most of the time, the cranes are leased from an equipment supplier. What happens if the crane (or any large, leased equipment) gets damaged?
I wrote an article regarding a builder’s risk carrier NOT covering damage to a crane from a storm based on a common exclusion. Another case, Ajax Bldg. Corp. v. Hartford Fire Ins. Co., 358 F.3d 795 (11th Cir. 2004), had a similar result.
In this case, a prime contractor leased a crane from an equipment supplier. The crane was used by the structural concrete subcontractor. The crane collapsed during the subcontractor’s work. The supplier sued both the contractor and subcontractor. The prime contractor was defended under a contractor’s equipment liability policy and the subcontractor was defended under a general liability policy it procured for its work on the project. Ultimately, a settlement was reached where the subcontractor’s liability insurer paid a bulk of the damage.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Insurer's Denial of Coverage to Additional Insured Constitutes Bad Faith
May 21, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer's unreasonable denial of a defense and indemnity to a lessor/additional insured was found to be in bad faith. Seaway Props. v. Fireman's Fund Ins. Co., 2014 U.S. Dist. LEXIS 55998 (W.D. Wash. April 22, 2014).
Seaway leased restaurant space to Ciao Bella Food, LLC. In January 10, 2010, the underlying plaintiff was on her way to the restaurant when she attempted to step down from a concrete platform between the building parking lot and the entrance to the restaurant. Seaway's lease gave Ciao Bella the right to use the common areas, including the parking lot, but did not grant Ciao Bella exclusive control over the common areas. The plaintiff suffered injuries and claimed both Ciao Bella and Seaway were liable.
Seaway's lease required Ciao Bella to maintain a CGL policy and to name Seaway as an additional insured. Ciao Bella did so by securing a policy with Fireman's Fund. Fireman's Fund had notice of the plaintiff's claim by November 2010. Seaway demanded in March 2012 that Fireman's Fund indemnify and defend it. In September 2012, two years after it first learned of the plaintiff's injury, Fireman's Fund denied coverage, asserting that Seaway was not an insured under the policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
