Federal Judge Refuses to Limit Coverage and Moves Forward with Policyholder’s Claims Against Insurer and Broker
December 07, 2020 —
Michael S. Levine & Casey L. Coffey - Hunton Insurance Recovery BlogOn November 10, 2020, a New York federal judge dismissed an insurer’s counterclaims seeking to cap its exposure under a $15 million sublimit and an order estopping the policyholder from pursuing any additional amounts.
In February 2017, Plaintiff Pilkington North America, Inc. (Pilkington), suffered between $60 and $100 million in damage from a tornado that struck its glass manufacturing factory in Illinois. Pilkington sought coverage for its loss under a commercial property and business interruption policy issued by Defendant Mitsui Sumitomo Insurance Company (MSI). Pilkington also claimed its insurance broker, Aon Risk Services Central, Inc. (Aon), is liable for faulty advice provided while brokering the policy. Aon’s negligence allegedly gave way to MSI’s fraudulent revision of the insurance policy, which caused the losses from the tornado to not be fully compensable.
Pilkington’s fraud and faulty brokering claims stem from MSI’s revision of an endorsement contained in the policy. The revision changed the wording of a windstorm sublimit. Allegedly, Aon was informed by MSI of the changes and failed to inform Pilkington that the revision would substantially reduce coverage for windstorms, including tornados.
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Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
Alabama Still “An Outlier” on Construction Defects
October 14, 2013 —
CDJ STAFFWhile many state Supreme Courts have determined that faulty construction work can be an occurrence under a standard commercial liability policy, the Alabama Supreme Court has taken the contrary view. Writing on the Kilpatrick Townsend blog, Carl A. Salisbury and Edmund M. Kneisel point out that the decision makes Alabama “an outlier,” and they ask, “how much longer will the outliers hold out?”
They note that in the underlying construction defect case, “the arbitrator awarded $3 million in compensatory damages to the homeowners because of improperly installed flashing; improperly installed brick; the lack of weep holes in the brick; improperly installed doors and windows; improper construction of the upper porches; faulty construction of the roof; improper installation of a bathtub.” They summarize: “the house must have leaked like a colander.”
When the insurer denied coverage, the contractor sued. The insurer argued that “the CGL policy form does not cover construction-related acts or omissions because such acts are not an insured ‘occurrence.’” Mr. Salisbury and Mr. Kneisel point out that “the Alabama Supreme Court agreed.”
The problem they see is that “if there is no insurance for any intentional act, then insurance is simply a rip-off — it covers nothing.” They quote Justice Benjamin Cardozo to this effect: “To restrict insurance to cases where liability is incurred without fault of the insured would reduce indemnity to a shadow.” Their argument is that the Alabama decision was not the “correct position,” as exemplified by recent decisions from West Virginia, North Dakota, Connecticut and Georgia. The case “was a prime opportunity for the Alabama Supreme Court to leave the ranks of the outliers and join the majority view.”
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Nevada HOA Criminal Investigation Moving Slowly
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFSix years have passed since the FBI started investigating “allegations of the sweeping scheme to take over valley homeowners associations” in Nevada, according to Jeff German writing for the Las Vegas Review-Journal, however, “the public still doesn’t have the full story of how the scheme unfolded.” Defendants who plead guilty are still awaiting sentencing and no trial has been set for “former construction company boss Leon Benzer, the accused mastermind of the scheme” despite that he and ten others have already been indicted. The trial had been set for March, however, defense lawyers stated “they were overwhelmed by the massive amount of evidence and won’t be prepared for trial until well into 2015.”
Benzer, Nancy Quon (late construction defect attorney), and others allegedly “funneled more than $8 million through secret bank accounts to land the lucrative legal and construction defect contracts from the homeowners associations,” according to the Las Vegas Review-Journal. Quon committed suicide in 2012, and therefore was never charged in the case.
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DE Confirms Robust D&O Protection Despite Company Demise
February 18, 2015 —
James Yoder, Michael Onufrak and Siobhan Cole – White and Williams LLPOn Feb. 5, 2015, the United States Bankruptcy Court for the District of Delaware, per Judge Brendan L. Shannon, entered proposed findings of fact and conclusions of law in favor of the former president and CEO of Ultimate Escapes Inc., James M. Tousignant, and its chairman, Richard Keith, after determining that Tousignant’s actions in negotiating and executing a controversial asset purchase agreement were protected by the business judgment rule, despite the demise of the company a short time later. The failure of a business strategy, in and of itself, does not create liability on the part of the former directors and officers of a bankrupt company.
Background
Ultimate Escapes was a luxury destination club that provided its members with access to high-end vacation residences around the world. Unfortunately, Ultimate Escapes’ business suffered greatly from the economic downturn that began in 2008, and on Sept. 20, 2010, Ultimate Escapes filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code.
Reprinted courtesy of White and Williams LLP attorneys
James Yoder,
Michael Onufrak and
Siobhan Cole
Mr. Yoder may be contacted at yoderj@whiteandwilliams.com
Mr. Onufrak may be contacted at onufrakm@whiteandwilliams.com
Ms. Cole may be contacted at coles@whiteandwilliams.com
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Federal Court in New York Court Dismisses Civil Authority Claim for COVID-19 Coverage
October 11, 2021 —
Eric D. Suben - Traub LiebermanCourts nationwide have been grappling with coverage for business interruption claims arising from closures occasioned by the COVID-19 pandemic, with mixed results by jurisdiction. A recent decision on the issue from the federal Southern District of New York sheds light on New York law regarding this pressing issue.
In Elite Union Installations, LLC v. National Fire Insurance Company of Pittsburgh, PA, 2021 WL 4155016 (Sept. 13, 2021), directives issued by governmental authorities required the insured construction company to shut its doors, leading to a layoff of some employees while others continued to work from home. The insured made a claim under its commercial property coverage for damage to its premises, which it claimed were rendered “uninhabitable” and required repair in the form of alterations to comply with social distancing requirements. In the ensuing coverage litigation, National Union moved to dismiss the complaint alleging covered first-party property damage defined in the policy as “direct physical loss of or damage to property.”
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Eric D. Suben, Traub LiebermanMr. Suben may be contacted at
esuben@tlsslaw.com
Hunton Insurance Recovery Lawyers Ranked by Chambers as Top Insurance Practitioners
May 27, 2019 —
Michael S. Levine - Hunton Andrews KurthHunton Andrews Kurth insurance recovery partner,
Lorie Masters, received a top “Band 1” ranking by Chambers and Partners in the Insurance: Policyholder category for the District of Columbia, and a “Band 2” ranking in the Insurance: Dispute Resolution: Policyholder – USA – Nationwide category.
Hunton Andrews Kurth insurance recovery associate,
Andrea DeField, also was recognized by Chambers in the Associate to Watch: Insurance: Florida category.
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Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
Blackstone to Buy Cosmopolitan Resort for $1.73 Billion
May 19, 2014 —
Hui-yong Yu – BloombergDeutsche Bank AG (DBK) agreed to sell the Cosmopolitan of Las Vegas hotel and casino to Blackstone Group LP (BX) for $1.73 billion in cash, ending a six-year money-losing venture into casino development.
“The bank is committed to reducing its non-core legacy positions in a capital-efficient manner which benefits shareholders,” Pius Sprenger, head of the Frankfurt-based lender’s non-core operations unit, said in a statement today. The division is selling and winding down assets that Deutsche Bank doesn’t consider to be central to its business.
Germany’s largest lender foreclosed on the Cosmopolitan after developer Ian Bruce Eichner defaulted on a construction loan in January 2008, and has labeled it a temporary investment. The company was seeking more than $2 billion for the property, a person familiar with the situation said last month. Two others said it was valued at closer to $1.5 billion.
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Hui-yong Yu, BloombergHui-yong Yu may be contacted at
hyu@bloomberg.net
Eighth Circuit Considers Judicial Estoppel in Hazardous Substance Release-Related Personal Injury Case
April 11, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On April 5, the U.S. Court of Appeals for the Eighth Circuit decided the case of
Kirk v. Schaeffler Group USA, Inc., et al., a personal injury action commenced in the U.S. District Court for the Western District of Missouri alleging injury resulting from the release of thousands of gallons of trichloroethylene (TCE) at the FAG Bearings Corporation’s (FAG Bearings) facility in Joplin, MO. The Court of Appeals reversed the District Court’s judicial estoppel ruling on the successor liability issue and concluded that the jury’s verdict on compensatory damages stands but their general verdict requires a new trial on Plaintiff’s punitive damages claim against FAG Bearings.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com