First Circuit Rejects Insurer’s “Insupportable” Duty-to-Cooperate Defense in Arson Coverage Suit
October 24, 2023 —
Geoffrey B. Fehling & Yaniel Abreu - Hunton Insurance Recovery BlogIn
Philadelphia Indemnity Insurance Co. v. BAS Holding Corp., the Court of Appeals for the First Circuit rejected an insurer’s “insupportable” defense that the insured company had breached its duty to cooperate by refusing the insurer’s request for an examination under oath of the company’s president. The decision is a reminder that, while examinations under oath can be effective tools to allow the insurer to properly investigate a claim, an insured’s duty to cooperate is not boundless and does not demand attendance at examinations that are not reasonably requested.
Background
BAS Holding involves the destruction of a landmark building in Boston by an arsonist. The owner, BAS Holding Corporation, submitted an insurance claim to its property insurer to recover insurance proceeds for the damage to the building. The insurer investigated the claim to determine whether the damage to the building was covered and issued a reservation of rights letter suggesting that the policy may not provide coverage for the fire. As part of its investigation, the insurer requested an examination under oath as a condition to coverage under the policy, which led to BAS presenting the property’s operations coordinator for an interview. Shortly after examining the operations coordinator, the insurer sought another examination of BAS’s president and owner, as well as five other employees. In response, BAS questioned whether the additional examinations were “reasonably required” and said that it would consider the requests if the insurer could explain why they were necessary.
Reprinted courtesy of
Geoffrey B. Fehling, Hunton Andrews Kurth and
Yaniel Abreu, Hunton Andrews Kurth
Mr. Fehling may be contacted at gfehling@HuntonAK.com
Mr. Abreu may be contacted at yabreu@HuntonAK.com
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Number of Occurrences Depends on Who is Sued
August 20, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to David L. Beck of Pillsbury Winthrop Shaw Pittman LLP (as published by Association of Corporate Counsel), an Oregon court “held that property damage incurred to a condominium project resulting from a myriad of construction defects constituted just one occurrence under the relevant excess general liability policy.”
In Chartis Specialty Ins. Co. v. American Contractors Ins. Co Risk Retention Group, et al., Chartis argued that “[b]ecause there were multiple defects/conditions resulting in property damage” there were also “multiple occurrences.” However, “[t]he court disagreed, finding that despite various defects, the property damages at issue arose from just one occurrence: the developers' failure to perform its duties.”
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Wreckage Removal Underway at Site of Collapsed Key Bridge in Baltimore, But Weather Slows Progress
April 15, 2024 —
Jim Parsons - Engineering News-RecordNote: The text of this article was updated 4/3/24 to reflect new information.
Weather and water conditions are hampering the piece-by-piece process of cutting and removing wreckage from the collapsed Francis Scott Key Bridge in Baltimore, while officials consider potentially utilizing progressive design-build for a replacement bridge. Officials remain uncertain as to how long the meticulous effort to clear the key shipping channel will take.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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Illusory Insurance Coverage: Real or Unreal?
August 24, 2017 —
David Adelstein - Florida Construction Legal UpdatesIn insurance coverage declaratory relief actions, there are times an insured will argue that the insurance policy coverage is illusory. Typically, an insured will raise this illusory argument if its insurer is denying coverage based on an exclusion or limitation in the policy. If a court agrees and deems the coverage illusory, the court will construe the policy to afford coverage to the insured. This is the obvious value of the argument: coverage!
“A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide.” The Warwick Corp. v. Turetsky, 42 Fla.L.Weekly D1797a (Fla. 4th DCA 2017). Thus, if a policy grants coverage in one section but then excludes the same coverage in another section, the coverage would be deemed illusory. Id. quoting Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). An illusory policy was found in the following examples: (a) a policy covered certain intentional torts but then excluded intended acts; (b) a policy covered advertising injury but elsewhere excluded advertising injury; and (c) a policy covered parasailing but excluded watercrafts. Id. (citations omitted). In all examples, coverage in the policy was completely swallowed up by an exclusion rendering the coverage illusory. Stated differently, coverage was completely contradicted by an exclusion in the policy rendering the policy absurd.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Rooftop Owners Sue Cubs Consultant for Alleged False Statements
January 24, 2014 —
Beverley BevenFlorez-CDJ STAFFA disagreement over signage potentially blocking rooftop owner’s views has stalled Wrigley Field’s proposed $300 million renovation, reported the Chicago Tribune. However, a recently lawsuit filed between the two entities regarded allegedly false statements made by Marc Ganic, a Chicago sports business consultant, published in the Chicago Sun-Times: “In the story, Ganis is quoted as saying the rooftop clubs were ‘stealing’ the Cubs product for their own profit,” according to the Chicago Tribune.
The rooftop owners claimed in the suit that “they have a contractual arrangement with the team that allows them to sell tickets to people who want bird’s-eye views of the game.” The Chicago Tribune attempted to contact Ganis for comment, but he “did not return several messages.”
The rooftop owners and the Cubs entered into a “20-year agreement in 2004 in which the rooftop owners pay the Cubs 17 percent of the team's yearly profits in exchange for unobstructed views into the ballpark,” according to ESPN. “The Cubs dispute that notion, however, contending the unobstructed views were guaranteed through the landmarking of the bleachers not with the agreement they have with the rooftop owners.”
Business president Crane Kenney explained to ESPN that the city council amended the landmarking rule for the field: “[The council has] now recognized the outfield is not a historic feature. And above a 10-foot level we can have signage. That was the big win last summer, among many. That's what the rooftops would contest.”
According to ESPN the Cubs will not start the renovation project until they have an agreement with the rooftop owners “that includes a guarantee not to sue the Cubs for breach of contract, which would delay construction.”
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Property Damage Caused By Construction Next Door Covered as Ensuing Loss
July 16, 2014 —
Tred R. Eyerly – Insurance Law HawaiiDamage to the insureds' property caused by construction undertaken on the adjacent lot was covered under the insureds' property policy. Chubb Indem. Ins Co. v. 21 E. Cedar, 2014 U.S. Dist. LEXIS 79906 (N.D. Ill. June 12, 2014).
The insureds' home sustained damage contemporaneous with demolition, excavation, and construction taking place on a adjacent lot. Chubb paid benefits to the insureds for their loss, and then sought to recover as subrogee from the defendants who performed the construction.
The defendants argued there was no coverage under Chubb's policy. Faulty planning, construction or maintenance were excluded. An exception to the exclusion stated, however, "we do insure ensuing covered loss unless another exclusion applies." Defendants argued characterizing the damages as ensuing losses was purely semantic and self-serving, designed to involve the ensuing loss provision in order to protect Chubb's coverage determination. Chubb contended the exclusion applied only to the specific property being insured and not to a neighbor's property where work is being performed. Therefore, the faulty construction exclusion did not apply and the ensuing loss provision was triggered.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Real Estate & Construction News Roundup (1/30/24) – Life Science Construction to Increase, Overall Homeownership Is Majority Female, and Senators Urge Fed Chair to Lower Interest Rates
February 26, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, hospitality and real estate companies create living options, SEC questions some financial institutions on exposure to risks from CRE, renting shows signs of overtaking buying in the housing market, and more!
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Pillsbury's Construction & Real Estate Law Team
Happenings in and around the West Coast Casualty Seminar
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFFor those who are attending the West Coast Casualty Construction Defect Seminar May 15th-16th, the Construction Defect Journal has compiled a list of concerts, sporting events, and museum exhibitions taking place in and around Anaheim that week. Whether you like to spend your personal time checking out a new band, or watching your favorite Angel slide into home, or perusing the local art museum, there is something to spark your interest.
CONCERT VENUES
THE HOUSE OF BLUES IN ANAHEIM
Blessthefall with Silverstein, The Amity Affliction, SECRETS and Heartist
Tuesday, May 13th, 2014 Doors Open at 6pm / Show Begins at 7pm
For More Information and to Purchase Tickets...
THE HOUSE OF BLUES IN ANAHEIM
Stephen "Ragga" Marley
Saturday, May 17th, 2014 Doors Open at 8pm / Show Begins at 9pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Lindsey Stirling plus special guest Dia Frampton
Wednesday, May 14, 2014 Doors Open at 7pm / Show Begins at 8pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Primal Fear
Thursday, May 15, 2014 Doors Open at 6:30pm / Show Begins at 7pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Jillian Michaels 'Maximize Your Life' Tour
Friday, May 16, 2014 Doors Open at 6pm / Show begins at 8pm
For More Information and to Purchase Tickets...
SPORTING EVENTS
ANGEL’S STADIUM - BASEBALL
The Los Angeles Angels of Anaheim v. Tampa Bay Rays
Thursday, May 15th at 7:05pm
Friday, May 16th at 7:05pm
Saturday, May 17th at 6:05pm
Sunday, May 18th at 12:35pm
For More Information and to Purchase Tickets...
MUSEUM EXHIBITIONS
MUZEO
Transcending Trash: The Art of Upcycling
Sat Apr 26 – Sun Aug 31, 2014
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 5 pm
For More Information and to Purchase Tickets...
BOWERS MUSEUM (Santa Ana)
BEETHOVEN: THE LATE GREAT
February 8, 2014 - May 18, 2014
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
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