Fairfield Connecticut Building Expert Directory

The Complex Insurance Coverage Reporter – A Year in Review

February 27, 2019 — White and Williams LLP
Welcome to CICR’s annual review of insurance cases. Here, we spotlight five (actually, seven) decisions from the last year that you should know about, and five pending cases—all before state high courts—to keep an eye on. The choices were not always easy. That is because 2018 saw a number of notable insurance coverage developments. Among them was the “Restatement of the Law – Liability Insurance,” a nearly five hundred-page document that the American Law Institute (ALI) adopted after eight years and twenty-nine drafts. Already, much has been written about the ALI Restatement, including by us. There will be more to come. Going forward, we will continue to highlight significant examples where courts address its provisions. Read the court decision
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Reprinted courtesy of White and Williams LLP

Be a Good Neighbor: Techniques to Mitigate the Risk of Claims from Adjacent Landowners

December 07, 2020 — Joshua Levy, Josh Neudorfer & Madeleine Bailey - Construction Executive
In May 2020, a real estate developer performing excavation work in New York was sued by a neighboring property owner for property damage. A court overturned an injunction preventing the developer from continuing excavation work after reviewing a preconstruction assessment that showed the damage to the neighboring property was preexisting—not caused by the excavation (see Feldman v. 3588 Nostrand Ave. LLC as an example) A preconstruction assessment is one of the most important tools in the arsenal of a developer protecting itself from neighbors bringing claims for property damage. Part two of this series will review the benefits of risk mitigation tools recommended for developers such as postconstruction assessments and monitoring during construction. Preconstruction Assessment Overview A preconstruction assessment is a review of a property adjacent to a site where demolition and/or construction activities are to take place. The goal of the assessment is to establish baseline conditions by conducting an inspection of buildings and infrastructure, including identification of existing damage to improvements, so that causation of any alleged damages can be more easily determined. Reprinted courtesy of Joshua Levy, Josh Neudorfer & Madeleine Bailey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Levy may be contacted at joshua.levy@huschblackwell.com Mr. Neudorfer may be contacted at jneudorfer@thesigmagroup.com Read the court decision
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Guarantor’s Liability on Partially Secured Debts – The Impacts of Pay Down Provisions in Serpanok Construction Inc. v. Point Ruston, LLC et al.

October 24, 2021 — Margarita Kutsin - Ahlers Cressman & Sleight
In Serpanok Construction, Inc. v. Point Ruston, LLC, Division Two of the Washington Court of Appeals decided an issue of first impression in Washington—whether a guarantor of a partially secured debt remains liable until the last dollar of the entire debt is paid off. After examining cases from other jurisdictions, the court held that that a guarantor is liable until the underlying debt is paid in full unless the agreement contains an express pay down provision. A pay down provision sets forth the guarantor’s right to reduce its obligation to the extent of any payment toward the debt, and it establishes that the guaranty applies only until an amount equivalent to the guaranteed amount is paid off. The Serpanok decision addressed several other issues, but the published portion of this part-published case focused on whether an entity involved in a real estate development, Point Ruston LLC, was discharged from its guaranty obligation following a foreclosure sale where the proceeds did not cover the entire debt owed to a subcontractor. Point Ruston LLC, Point Ruston Phase II LLC (“Phase II”), and Century Condominiums (“Century”) were affiliated entities (collectively “Point Ruston parties”) that constructed retail and residential structures on a site in Point Ruston. Serpanok Construction Inc. (“Serpanok”) entered into subcontract agreements with Phase II and Century to perform concrete and steel work on a parking garage and movie theater for the project. Point Ruston LLC was not a party to either subcontract. Read the court decision
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Reprinted courtesy of Margarita Kutsin, Ahlers Cressman & Sleight
Ms. Kutsin may be contacted at margarita.kutsin@acslawyers.com

Waive It Goodbye: Despite Evidence to the Contrary, Delaware Upholds an AIA Waiver of Subrogation Clause

April 19, 2022 — Lian Skaf - The Subrogation Strategist
Subrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract is made – usually long before a loss occurs – a waiver of subrogation can doom what otherwise may have been a strong case. The Superior Court of Delaware considered such a scenario to determine whether a waiver of subrogation provision applied to a multimillion-dollar subrogation case. In State of Delaware Insurance Coverage Office and Factory Mutual Insurance Co., both as subrogee of the University of Delaware v. DiSabatino Construction Co., Schlosser & Associates Mechanical Contractors, Inc. and V.E. Guerrazzi, Inc., C.A. No. N19C-08-080, 2022 Del. Super. LEXIS 108 (March 17, 2022), the court granted the defendants’ motions for summary judgment, holding that the plaintiffs’ claims were barred by a waiver of subrogation provision in the underlying contract. Thus, the court held that the plaintiffs could not pursue the defendants in their suit to recover damages as a result of a fire. The court specifically denied the plaintiffs’ argument that since the contract was not signed and another “short form” version was later used the waiver of subrogation provision should not apply. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

The ABCs of PFAS: What You Need to Know About Liabilities for the “Forever Chemical”

February 22, 2021 — Robert F. Walsh, Gregory S. Capps & R. Victoria Fuller - Complex Insurance Coverage Reporter
This article is based on a presentation the authors made at White and Williams LLP’s Virtual Coverage College® on October 22, 2020. Every year, hundreds of insurance professionals come to Philadelphia—this year via our online platform—to participate in a full day of lectures and interactive presentations by White and Williams lawyers and guest panelists about the latest issues and challenges involved in claim handling and insurance litigation. Visit coveragecollege.com for more information and stay tuned for Coverage College® 2021. Perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as PFAS or PFOS, have been a key ingredient in numerous industrial and consumer products for decades. These man-made chemicals are prevalent and are also known for their longevity in the environment. More recently, PFAS have been the focus of thousands of lawsuits alleging personal injury and property damage. Some insurers have already questioned whether PFAS could rival asbestos in scope and bottom-line impacts. It is a legacy that confronts manufacturers and other defendants and insurers today. This article provides a primer on PFAS, including the current regulatory framework and litigation landscape. We also identify some key emerging coverage issues insurers should be aware of when dealing with PFAS claims under liability and first-party property policies. Reprinted courtesy of Robert F. Walsh, White and Williams LLP and Gregory S. Capps, White and Williams LLP Mr. Walsh may be contacted at walshr@whiteandwilliams.com Mr. Capps may be contacted at cappsg@whiteandwilliams.com Read the court decision
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Millennium’s Englander Buys $71.3 Million Manhattan Co-Op

September 03, 2014 — Oshrat Carmiel – Bloomberg
Israel Englander, the founder and chief executive officer of hedge-fund firm Millennium Management LLC, bought a duplex apartment on New York’s Park Avenue for $71.3 million, a record price for a Manhattan co-op. The seller was the government of France, New York City property records filed on Aug. 30 show. The six-bedroom unit at 740 Park Ave. was listed for $48 million in April, according to real estate website StreetEasy.com. The Park Avenue tower, completed in 1931 and designed by Rosario Candela and Arthur Loomis Harmon, has been home to John D. Rockefeller Jr. and Jacqueline Kennedy Onassis, according to StreetEasy. Its 31 units include duplexes and triplexes of as much as 20,000 square feet (1,900 square meters). The 18-room co-op bought by Englander includes a private elevator, 35-foot (10.6-meter) marble gallery and five fireplaces, said the listing by John Burger of Brown Harris Stevens. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net

Claims Against Broker Dismissed

June 20, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Claims that the broker failed to secure adequate coverage for condominium owners were dismissed. Ting Lin v. Mountain Valley Indemn. Co., 2022 N.Y. Misc. LEXIS 1254 (N.Y. Sup. Ct. March 10, 2022). The amended complaint alleged the agent, Century Max Inc., breached its duty to advise and sell to plaintiffs a homeowners and fire policy far in excess of $100,000 for their condominium unit, which was worth in excess of $600,000. Century moved to dismiss A fire in the building forced all owners to vacate their units. The entire building was thereafter declared unsafe for habitation by the City of New York. The condominium owners met and voted to not restore the building, but to sell the burnt-out shell and distribute the sales proceeds and the condominium's insurance among the unit owners. There was no indication that the owners would not be made whole once the funds were distributed. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Affordable Global Housing Will Cost $11 Trillion

October 08, 2014 — Flavia Krause-Jackson – Bloomberg
Replacing the world’s substandard housing and building affordable alternatives to meet future global demand would cost as much as $11 trillion, according to initial findings in a McKinsey & Co. report. The shortage of decent accommodation means as many as 1.6 billion people from London to Shanghai may be forced to choose between shelter or necessities such as health care, food and education, data disclosed at the 2014 CityLab Conference in Los Angeles show. McKinsey will release the full report in October. The global consulting company says governments should release parcels of land at below-market prices, put housing developments near transportation and unlock idle property hoarded by speculators and investors. The report noted that China fines owners 20 percent of the land price if property is undeveloped after a year and has the right to subsequently confiscate it. Read the court decision
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Reprinted courtesy of Flavia Krause-Jackson, Bloomberg
Ms. Krause-Jackson may be contacted at fjackson@bloomberg.net

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