WSHB Expands to Philadelphia
July 28, 2016 —
Beverley BevenFlorez-CDJ STAFFWood Smith Henning & Berman LLP (WSHB) announced “the opening of its newest regional office at One Liberty Place, 1650 Market Street, 36th Floor, Philadelphia, Pennsylvania 19103,” according to a press release. Elizabeth Chalik will be the managing partner at the new location. Chalik is “a highly regarded litigator with close to 15 years of trial experience” and her practice has focused on products liability, casualty, toxic tort and transportation litigation. Furthermore, Chalik is admitted to practice law in both New Jersey and Pennsylvania.
“It is fitting that as we celebrate WSHB’s 19th year, we are opening our 19th office,” said Daniel Berman, Firm Chairman and Co-founder. “With this expansion, we continue our pattern of strategic long term growth. That, coupled with Liz’s proven track record and many years in Philadelphia, further expands our ability to better serve our clients in the Northeast.”
Chalik has been recognized on the Super Lawyers List of Rising Stars for three years running.
“I am thrilled to be joining Wood Smith Henning & Berman. WSHB’s long-standing reputation and dedication to their clients drew me to them and I knew that this would be the right place for me,” said Chalik. “I could not be more excited about the opportunity to manage WSHB’s new Philadelphia office!”
WSHB also has offices located in Connecticut, Denver, Fresno, Glendale, Las Vegas, Los Angeles, Miami, New Jersey, New York, Northern California, Orange County, Phoenix, Portland, Rancho Cucamonga, Riverside, San Diego, Seattle and Tampa.
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Toxic Drywall Not Covered Under Homeowner’s Policy
March 28, 2012 —
CDJ STAFFThe Duphuys of Baton Rouge Louisiana found themselves needing to argue both sides of an issue, according to the judge in Duphuy v. USAA Casualty Insurance Company. The Duphuys alleged that the drywall in their home “emits odorous gases that cause damage to air-condition and refrigerator coils, copper tubing, electrical wiring, computer wiring, and other household items.” Additionally, they reported damage to “their home’s insulation, trimwork, floors, cabinets, carpets, and other items” which they maintained were “covered under the ‘ensuing loss’ portion of their policy.”
Their insurer declined coverage, stating that the damages were not a “direct, physical loss,” and even if they were “four different exclusions independently exclude coverage, even if such loss occurred.” The policy excludes defective building materials, latent defects, pollutants, and corrosion damage. The court noted that “ambiguities in policy exclusions are construed to afford coverage to the insured.”
The court did determine that the Duphuys were not in “a situation where the plaintiffs caused the risk for which they now seek coverage.” The judge cited an earlier case, In re Chinese Drywall, “a case with substantially similar facts and construing the same policy” and in that case, “property damage” was determined to “include the loss of use of tangible property.” The court’s conclusion was that the Duphuys “suffered a direct, physical loss triggering coverage under their policy.”
Unfortunately for the Duphuys, at this point the judge noted that while they had a “direct, physical loss,” the exclusions put them “in the tough predicament of claiming the drywall is neither defective nor its off-gassing corrosive or a pollutant, but nonetheless damage-causing.”
In the earlier Chinese Drywall case, the judge found that “faulty and defective materials” “constitutes a physical thing tainted by imperfection or impairment.” The case “found the drywall served its intended purpose as a room divider and insulator but nonetheless qualified under the exclusion, analogizing the drywall to building components containing asbestos that courts have previously determined fit under the same exclusion.” In the current case, the judge concluded that the drywall was “outside the realm of coverage under the policy.”
The court also found that it had to apply the corrosion exclusion, noting that the plaintiffs tried to evade this by stating, “simplistically and somewhat disingenuously, that the damage is not caused by corrosion but by the drywall itself.” The plaintiffs are, however, parties to another Chinese drywall case, Payton v. Knauf Gips KG, in which “they directly alleged that ‘sulfides and other noxious gases, such as those emitted from [Chinese] drywall, cause corrosion and damage to personal property.’” As the court pointed out, the Duphuys could not claim in one case that the corrosion was caused by gases emitted by the drywall and in another claim it was the drywall itself. “They hope their more ambiguous allegations will be resolved in their favor and unlock the doors to discovery.”
The court quickly noted that “the remaining damage allegations are too vague and conclusory to construe” and permitted “exploration of the latent defect and pollution exclusions.”
The judge concluded that the plaintiffs did not provide sufficient facts to establish coverage under the ensuing loss provision, stating that the “plaintiffs must allege, at the very least, how the drywall causes damage to the trimwork, carpet, etc., not simply that it does so.” Given the court’s determinations in the case, the plaintiffs’ motion was dismissed.
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Third Circuit Holds That Duty to Indemnify "Follows" Duty to Defend
December 27, 2021 —
Jeffrey J. Vita - Saxe Doernberger & Vita, P.C.In a win for policyholders, the Third Circuit Court of Appeals recently affirmed a District Court’s 2018 ruling, which held that the duty to indemnify follows the duty to defend where a settlement precludes a determination on the facts of the case relative to liability and apportionment.
In Liberty Mutual Insurance Co. v. Penn National Mutual Casualty Insurance Co.,1 a large concrete panel collapsed and killed a construction worker at a construction site in New Kensington, Pennsylvania. Cost Company (“Cost”), Liberty Mutual’s insured, was a masonry subcontractor on the project and had further subcontracted with Pittsburgh Flexicore Co. (“Flexicore”), Penn National’s insured, for the concrete panels. Cost’s subcontract agreement required Flexicore to name Cost as an additional insured under its general liability policy issued by Penn National.
When the construction worker’s widow filed a wrongful death lawsuit against Cost and Flexicore, Cost demanded that Penn National defend and indemnify it as an additional insured under the policy. Penn National refused, arguing that any additional insured status had terminated at the conclusion of Flexicore’s work for Cost. As a result, Liberty Mutual defended Cost in the lawsuit, which was ultimately settled.
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Jeffrey J. Vita, Saxe Doernberger & Vita, P.C.Mr. Vita may be contacted at
JVita@sdvlaw.com
Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River
May 01, 2019 —
Anthony B. Cavender - Gravel2GavelOn March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.”
The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Safer Schools Rendered Unsafe Due to Construction Defects
February 10, 2012 —
CDJ STAFFBuilt on a program for safer school buildings, schools in Neenan County, Colorado have been shown to have mild-to-moderate structural problems, rendering some of them unsafe. The Denver Post reports that a third-party review of schools built by the Neenan Company has shown structural issues in all fifteen school buildings.
One school, Meeker Elementary, has been closed as it could collapse under high winds or during an earthquake. Sargent Junior-Senior High School is in use, but there are plans to evacuate the buildings if winds exceed 25 mile per hour. Two schools have roofs that are unable to bear expected loads of snow during the winter.
The Neenan Company says that the school buildings are not up to their standards and is working with the school districts to repair the buildings. Repairs are expected to be complete by August.
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Legal Implications of 3D Printing in Construction Loom
July 10, 2018 —
Aldo E. Ibarra - Engineering News-RecordImagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof.
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Aldo E. Ibarra, ENRENR staff may be contacted at
ENR.com@bnpmedia.com
Northern District of Mississippi Finds That Non-Work Property Damages Are Not Subject to AIA’s Waiver of Subrogation Clause
July 11, 2018 —
Shannon M. Warren - The Subrogation StrategistIn recent months, the Northern District of Mississippi has grappled with how to interpret waivers of subrogation in American Institute of Architects (AIA) construction industry contracts and, specifically, how they apply to work versus non-work property. The distinction between work and non-work property has been commonly litigated and remains a hotly debated topic when handling subrogation claims involving construction defects.
In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing, 2018 U.S. Dist. LEXIS 23515 (February 12, 2018), a fire consumed the entire insured risk when one of the defendants was performing window restoration services. Subsequently, the insured’s subrogated insurer filed suit against several defendants involved in the construction project at issue. In response to the defendants’ motion for summary judgment, the District Court for the Northern District of Mississippi considered whether the waiver of subrogation clause in AIA contract form A201-2007 precluded the subrogated insurer from recovering damages from the defendants. The court held that the waiver of subrogation provision contained in AIA document A201-2007 barred the insurer from recovering for damages to the work itself, but did not apply to non-work property.
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Shannon M. Warren, White and Williams LLPMs. Warren may be contacted at
warrens@whiteandwilliams.com
Denial of Coverage For Bodily Injury After Policy Period Does Not Violate Public Policy
May 12, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe Rhode Island Supreme Court agreed that the insurer had no coverage obligations for bodily injury occurring after the policy had been canceled. Hoesen v. Lloyd's of London, 2016 R.I. LEXIS 41 (R.I. March 24, 2016).
The plaintiff, Mark Van Hoesen, was seriously injured on July 23, 2012, when he fell from a deck of his house. He sued his contractor, Brian Leonard, alleging that the deck had been negligently constructed. Lloyd's, Leonard's insurer, was later named as a defendant. Lloyd's admitted it issued the policy to Leonard, but it was cancelled on August 29, 2007. Even if it had not been canceled, the policy had expired long before the injuries alleged in plaintiff's complaint occurred.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
