COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Indiana Appellate Court Allows Third-Party Spoliation Claim to Proceed

August 01, 2023 — Ryan Bennett - The Subrogation Strategist
In Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et al, No. 22A-CT-1924, 2023 Ind. App. LEXIS 157, the Court of Appeals of Indiana (Appellate Court) reversed a trial court ruling that granted the motion to dismiss filed by Michaelis Corporation (Michaelis), a restoration company. The Appellate Court ruled that the trial court erred in dismissing the plaintiff’s spoliation and negligence claims against Michaelis, who discarded evidence relating to the cause of the fire at issue. The plaintiff’s insured owned a home in Indianapolis, Indiana. On Halloween night in 2019, a fire occurred at the property. The plaintiff’s representatives preliminarily determined that the fire may have been caused by a digital dehydrator within the kitchen. Michaelis had a representative present at the site inspection and was allegedly told to preserve the kitchen area. That area was taped off with “caution” tape. Michaelis also placed a tarp over the kitchen to prevent weather damage. Despite the instructions and precautions, Michaelis demolished the kitchen and discarded the dehydrator along with other fire debris. Read the court decision
Read the full story...
Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

---

Insurer in Bad Faith Due to Adjuster's Failure to Keep Abreast of Case Law

June 13, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court found that the insurer acted in bad faith when the claim was denied based on the adjuster's lack of knowledge of recent case law in Washington. Sec. Nat'l Ins. Co. v. Constr. Assocs. of Spokane, 2022 U.S. Dist. LEXIS 53533 (E.D. Wash. March 24, 2022). Construction Associates of Spokane was a general contractor hired for a project at the Paulsen Building in Spokane. Construction Association hired a subcontractor, Merit Electric, for whom Mark Wilson worked. Wilson was seriously injured on August 20, 2016. He sued the Construction Associates along with other defendants three years later. Construction Associates tendered to Merit Electric's broker, Alliant Insurance Services, Inc. Alliant forward the tender to Security National. The tender letter included a certificate of insurance issued by Alliant to Contractor Associates on September 3, 2019 and the subcontract with Merit. The subcontract required Merit to maintain CGL coverage with limits of $1 million. Further, the subcontractor was to issue certificate of insurance to the Contractor. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Top 10 Insurance Cases of 2023

January 29, 2024 — Jeffrey J. Vita & Michael A. Amato - Saxe Doernberger & Vita, P.C.
Federal and state courts tackled many interesting insurance-related issues this past year. Perhaps no state had a more impactful year than Illinois, which held that construction defects could constitute an occurrence, that a LEG 3 “extension” attempting to preclude coverage for faulty or defective workmanship was ambiguous as a matter of law (applying Illinois law), and that ostensibly prohibitive “catch-all exclusions” can render policy language ambiguous in favor of coverage. Other courts wrestled with procedural inquiries, such as the legal duty of a broker in providing notice to an insurer or the ability of an insured to recoup its attorneys’ fees in pursuing a coverage action against its insurer. These are merely a sampling of the impactful insurance decisions rendered in 2023. Each year, we endeavor to identify cases of general interest to our clients and the broader insurance community. Specifically, we attempt to identify trends, cases of first impression, cases illustrating conflicts among the courts, or cases dealing with emerging issues. We now proudly unveil the top 10 most influential coverage decisions of 2023 and look ahead to a few cases to watch as 2024 unfolds. Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and Michael A. Amato, Saxe Doernberger & Vita, P.C. Mr. Vita may be contacted at JVita@sdvlaw.com Mr. Amato may be contacted at MAmato@sdvlaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Excess-Escape Other Insurance Provision Unenforceable to Avoid Defense Cost Contribution Despite Placement in Policy’s Coverage Grant

April 20, 2016 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel, LLP
In Certain Underwriters at Lloyds, London v. Arch Specialty Ins. Co. (No. C072500; filed 4/11/16), a California appeals court found an “other insurance” provision unenforceable to excuse defense contribution between successive primary insurers, regardless of the fact that the limiting language was contained in the policy’s coverage grant. Certain Underwriters and Arch each insured Framecon over successive policy periods. Framecon was sued by a developer in a series of construction defect actions, and tendered to both insurers. Underwriters agreed to defend under a reservation of rights but Arch declined, citing the wording of its insuring agreement, which stated: Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Repair Cost Exceeding Actual Cash Value Does Not Establish “Total Loss” Under Fire Insurance Policy

June 05, 2017 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In California FAIR Plan Assn. v. Garnes (No. A143190, filed 5/26/17), a California appeals court ruled that “total loss” under Insurance Code section 2051 refers to physical damage or loss, not the economic fact that the cost of repair exceeds the actual cash value of a home. Thus, where the home is not physically destroyed, the insured is entitled to the actual cost of repair, minus depreciation, even if that amount exceeds the fair market value of the home. In Garnes, the insured had a fire policy issued by the California FAIR Plan with limits of $425,000. It was agreed that the assessed value of the insured home was only $75,000. The insured suffered a kitchen fire with estimated repair costs of $320,000. The FAIR Plan declared the home a total loss because the cost of repair exceeded the home’s value, and offered to pay the actual cash value as provided by Insurance Code section 2051(b)(1). Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

How Mansions Can Intensify Wildfires

May 30, 2022 — Todd Woody - Bloomberg
A neighborhood of $4 million homes that burned Wednesday in a Southern California wildfire highlights the vulnerability of large suburban dwellings to climate-driven blazes, according to fire experts. The Coastal Fire destroyed at least 20 homes in a gated community in Laguna Niguel, a wealthy Orange County enclave near Laguna Beach. Houses in the Coronado Pointe development line a ridge overlooking the Pacific Ocean. Homes in the neighborhood are palatial, ranging in size from about 4,000 square feet to 10,000 square feet, and sit on large lots with room for swimming pools with coastal views. But the mansions are wedged together with relatively little space between buildings. When a fire broke out near a wastewater treatment plant on Wednesday, it raced up a chaparral-covered hillside until it encountered an explosive source of fuel – Coronado Pointe. Read the court decision
Read the full story...
Reprinted courtesy of Todd Woody, Bloomberg

---

Duty to Defend Broadly Applies to Entire Action; Insured Need Not Apportion Defense Costs, Says Maryland Appeals Court

January 27, 2020 — Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery Blog
In a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here. The coverage litigation arose out of a construction defect case against a general contractor. The general contractor tendered the action to its insurer, Nationwide, which, in turn, filed a declaratory judgment action against the various insurers of construction project subcontractors that had named the general contractor as an additional insured. Ultimately, the court granted a summary judgment motion declaring that all of the subcontractors’ insurers had a duty to defend the general contractor “because the allegations in the underlying lawsuit raised claims that potentially arose from the [s]ubcontractors’ work at the [construction site].” All of the subcontractors’ insurers settled with Nationwide except for one, Selective Way; and the parties proceeded to a jury trial on various issues. The jury found for Nationwide on all issues. Selective Way appealed. Selective Way argued on appeal that even if some of the allegations were covered under its policy, it had no obligation to defend the general contractor because its insureds, the subcontractors, could not have been responsible for all of the losses given the nature of their work. Further, Selective Way contended that if it was responsible for defending the general contractor, it was not responsible for the entire defense, and the general contractor was responsible for apportioning the costs among the various subcontractors. The panel disagreed on both points. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Kevin V. Small, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Small may be contacted at ksmall@HuntonAK.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Waiver of Consequential Damages: The Most Important Provision in a Construction Contract

March 08, 2021 — Jeremy P. Brummond - Construction Executive
Construction agreements can be lengthy. They often include terms covering everything from logistics for working on the project site to complicated provisions regarding intellectual property. Many provisions in a construction agreement deal with risk and who is going to pay for damage claims if or when they occur. However, not all risk-shifting provisions are equally important. While provisions that impose obligations on the contractor to maintain confidentiality, indemnify for personal injury or property damage, or correct defective work can expose a contractor to substantial damage claims and are thus important, contractors can significantly control the amount of damages the owner can claim by including a well-drafted waiver of “consequential damages” provision in the agreement. Because the waiver of consequential damages can significantly control the amount of damages for which a contractor is assuming risk and greatly limit the owner’s ability to recoup many damages, it is arguably the most important provision in a construction contract. Therefore, it is essential for contractors and owners to carefully consider the waiver of consequential damages before entering into any construction agreement. Reprinted courtesy of Jeremy P. Brummond, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of
Mr. Brummond may be contacted at jbrummond@lewisrice.com

---