Insurer Wrongfully Denies Coverage When Household Member Fails to Submit to EUO
May 06, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined that coverage for a loss by fire could not be denied when the insured's son failed to appear for a examination under oath (EUO). Adekola v. Allstate Vehicle & Prop. Ins. Co., 2024 U.S. Dist. LEXIS 27125 (E.D. Pa. Feb. 16, 2024).
Plaintiff had a homeowners policy with Allstate. Plaintiff - Michele Adekola - was the named insured under the policy. After the fire, Allstate provided payments for temporary housing. Allstate requested examinations under oath of Plaintiff and her son, Nico. Plaintiff and her son were examined by Zoom. Allstate then sought to examine Plaintiff's other son, Lemmeco, but these efforts were unsuccessful.
Allstate then stopped paying for Plaintiff's temporary housing and informed Plaintiff that Lemmeco's failure to participate in an EUO was a material breach of duties under the policy and the breach was prejudicial to Allstate. Allstate further contended that Lemmeco had a duty to submit to an EUO.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Intentionally Set Atlanta Interstate Fire Closes Artery Until June
April 05, 2017 —
Engineering News-RecordCrews from C.W. Matthews Contracting Co., Marietta, Ga., are removing debris from an Interstate 85 bridge in Atlanta that collapsed during a March 30 rush-hour fire. No injuries were reported, but the incident forced an extended closure of the highway section. Investigators say the fire was intentionally set inside a fenced Georgia Dept. of Transportation surplus equipment storage area beneath the structure, and it intensified after spreading to a stockpile of polyethylene and fiberglass conduit. Flames and high temperatures subsequently compromised the bridge’s structural integrity. Authorities have charged one individual with arson and first-degree criminal damage to property, while two others were cited for criminal trespass.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Construction on the Rise in Washington Town
June 16, 2011 —
CDJ STAFFThe Kitsap Sun reports that Gig Harbor, a town in the area near Tacoma, Washington, has had a 60% increase in building permit applications as compared to 2010. May, 2011 had as many permits issued for single-family residences in Gig Harbor as were issued for all of 2010. Additionally, a Safeway shopping center on Point Fosdick is described by Dick Bower, Gig Harbor Building and Fire Safety Director, as “a huge project and it’s going to bring in quite a bit of revenue.” He called the increase in building “economic recovery at the grassroots level.”
Bower said that the building officials in other towns have also seen upswings in construction. He anticipates more activity in the future.
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Hunton Offers Amicus Support in First Circuit Review of “Surface Water” Under Massachusetts Law
August 01, 2023 —
Michael S. Levine, Lorelie S. Masters & Janine A. Hanrahan - Hunton Insurance Recovery BlogHunton’s insurance team has offered its support on behalf of amicus curie United Policyholders in a brief to the
First Circuit concerning the meaning of “surface water” in the context of a broad, all-risk property insurance policy?
This important question arose in a dispute between Medical Properties Trust (“MPT”), a real estate investment trust, and Zurich American Insurance Company (“Zurich”), its insurer, after water entered and destroyed Norwood Hospital. The water at issue entered the building after collecting on the surface of the building’s flat parapet roof. Zurich argued that because the water collected on the surface of the roof, the water met the meaning of the term “surface water,” as that term was used in the policy’s definition of “flood.” Flood coverage is subject to a $100 million sublimit, whereas the policy’s general limit is $750 million.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Lorelie S. Masters, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Masters may be contacted at lmasters@HuntonAK.com
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Georgia Local Government Drainage Liability: Nuisance and Trespass
November 29, 2021 —
David R. Cook Jr. - Autry, Hall & Cook, LLPA long-running dispute between a landowner and a municipality has escalated to the Georgia Court of Appeals and in the federal court for the Northern District of Georgia.[1] The municipality maintained a stormwater system that discharged on property uphill from the landowner’s property. The uphill property was used as an illegal dump, and debris washed downhill from the dump to the landowner’s property. The debris clogged the landowner’s surface water drainage system, which caused flooding of the property and a building.
State Case
The landowner sued for trespass, nuisance, takings, and inverse condemnation. While the other claims were barred by the four-year statute of limitations, the court addressed the plaintiff-landowner’s claim for continuing nuisance.
Municipalities may be liable when they negligently construct or maintain a sewer or drainage system that causes repeated flooding of property, such that it results in a continuing, abatable nuisance.[2] For a municipality to be liable for maintenance of a nuisance:
the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.[3]
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Illinois Supreme Court Holds That the Implied Warranty of Habitability Does Not Extend to Subcontractors
March 04, 2019 —
Michael J. Ciamaichelo - The Subrogation StrategistThe implied warranty of habitability allows a homeowner to recover damages for latent defects that interfere with the intended use of a home. In Sienna Court Condo. Ass’n v. Champion Aluminum Corp., 2018 IL 122022, 2018 Ill. LEXIS 1244 (2018), the Supreme Court of Illinois held that buyers of new homes cannot assert claims for breach of the implied warranty of habitability against subcontractors involved in the construction of the homes because the subcontractors have no contractual relationship with the homeowners and the damages are purely economic. As the court explained, the implied warranty of habitability is a creature of contract (not tort) and, therefore, only exists when there is contractual privity between the defendants and the homeowners.
In Sienna, a group of condominium unit owners alleged that their new homes contained latent construction defects and asserted claims against the various parties involved in the construction and sale of the homes, including claims against the defendant subcontractors for breach of the implied warranty of habitability. The plaintiffs contracted with the property developer to purchase the homes, but the plaintiffs had no contractual relationship with the subcontractors involved in the construction of the homes. The Sienna court, overturning the decisions of the trial court and the appellate court, granted the subcontractors’ joint motion to dismiss the plaintiff’s claims for the implied warranty of habitability because the plaintiffs had no contractual relationship with the subcontractors and the damages were purely economic.
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Michael J. Ciamaichelo, White and Williams LLPMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
First Suit to Enforce Business-Interruption Coverage Filed
April 20, 2020 —
Lorelie S. Masters & Michael S. Levine - Hunton Insurance Recovery BlogOn Monday, Oceana Grill, a restaurant in New Orleans, Louisiana, became the first to file a lawsuit over coverage for COVID-19 business interruption losses. The lawsuit, styled Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s of London, et al. (La. Dist. Court, Orleans Parish), seeks a declaratory judgment that an “all risks” property insurance policy issued by Lloyd’s of London must cover losses resulting from the closure of the restaurant following an order by the Governor of Louisiana restricting public gatherings and the Mayor of New Orleans’ order closing restaurants.
The Lloyds’ policy, like most first-party property insurance policies, affords coverage for business- interruption losses and contains an “extension of coverage in the event of the businesses closure by order of Civil Authority.” Specifically, the lawsuit seeks a declaration that “the policy provides coverage to plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination and that the policy provides business income coverage in the event that the coronavirus has contaminated the insured premises.” Furthermore, according to the complaint, “[t]he policy does not provide any exclusion due to losses, business or property, from a virus or global pandemic.”
As the complaint implies, an important issue will be whether the novel coronavirus constitutes the requisite “direct physical loss or damage” under the policy. Understanding COVID-19, its manner of transmission and its ability to live beyond a host organism helps support a conclusion that COVID-19 does indeed amount to the required direct physical loss or damage.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
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San Diego Developer Strikes Out on “Disguised Taking” Claim
October 26, 2017 —
Michael C. Parme – Haight Brown & Bonesteel LLPIn Dryden Oaks, LLC v. San Diego County Regional Airport Authority et al.(D068161, filed 9/26/17, publication order 10/19/17), the California Court of Appeal, Fourth Appellate District held that the County of San Diego (County) and the San Diego Regional Airport Authority (Authority) were entitled to summary judgment on a developer’s “disguised taking” theory of inverse condemnation.
In 2001, the developer purchased two large lots (designated Lot 24 and Lot 25) adjacent to the end of a runway at the Palomar Airport in Carlsbad. Plaintiff obtained the necessary permits from the City of Carlsbad and successfully completed construction of an industrial building on Lot 24 in 2005. However, the plaintiff never began development of Lot 25 and the building permit for the property expired in 2012. The developer was then unable to renew the building permit because the Authority had adopted the Airport Land Use Compatibility Plan (ALUCP) in the interim period, which reclassified the Lots as part of a Runway Protection Zone (RPZ). The developer received a letter explaining that “despite the earlier approval the proposed development was no longer feasible because the ALUCP was more restrictive than the prior compatibility plan and the application's proposed use of ‘research and development’ was not permissible.”
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Michael C. Parme, Haight Brown & Bonesteel LLPMr. Parme may be contacted at
mparme@hbblaw.com