Sixth Circuit Affirms Liability Insurer's Broad Duty to Defend and Binds Insurer to Judgment Against Landlord
September 07, 2020 —
Michael V. Pepe & Janie Reilly Eddy - Saxe Doernberger & VitaIn a victory for policyholders, the Sixth Circuit affirmed that a landlord’s insurer owed a duty to defend the landlord in a bodily injury claim arising out of a fire that killed three and injured one. The Court held that the insurer breached its duty to defend and was bound to the insured’s $3 million consented judgment.
Transition Investments LLC, an owner of three properties in the Detroit area, purchased a general liability insurance policy with Hamilton Specialty Insurance Company to insure its properties. At one of the properties, a faulty stove started a fire, destroying the building, injuring one person and killing three others. The estates of the deceased and the injured party sued Transition in Michigan state court. In their complaint, the plaintiffs contended that Transition failed to provide a habitable premise and neglected to maintain the property’s stove, which allegedly caused the fire. The plaintiffs argued that Transition’s negligent maintenance of the property led to the fire and the resulting injuries. Transition subsequently tendered the claim to Hamilton. Hamilton claimed that the insurance policy did not cover the fire’s damages and refused to participate in the state court litigation. Ultimately, Transitions entered into a consent judgment with the plaintiffs for $3 million.
Reprinted courtesy of
Michael V. Pepe, Saxe Doernberger & Vita and
Janie Reilly Eddy, Saxe Doernberger & Vita
Mr. Pepe may be contacted at mvp@sdvlaw.com
Ms. Eddy may be contacted at jre@sdvlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Traub Lieberman Partner Greg Pennington and Associate Kevin Sullivan Win Summary Judgment Dismissing Homeowner’s Claim that Presented an Issue of First Impression in New Jersey
December 02, 2019 —
Gregory S. Pennington & Kevin Sullivan - Traub LiebermanOn July 12, 2019, Traub Lieberman Straus & Shrewsberry LLP’s Gregory S. Pennington and Kevin Sullivan secured summary judgment dismissing a homeowner’s claim for damaged flooring. The claim at issue arose from the homeowners’ attempt to discard their refrigerator. In the process of removing the refrigerator, the homeowners scratched their kitchen and dining room floors. The homeowners made a claim under their homeowners policy for the cost to repair and replace the damaged flooring. Their homeowners’ insurer denied their claim based on a policy exclusion barring coverage for damage consisting of or caused by marring and scratching. When their insurer denied coverage, the homeowners filed suit in the New Jersey Superior Court, Law Division in Bergen County. The case presented the issue of first impression in New Jersey of whether a homeowner’s self-inflicted, but accidental damaging of its own floors was barred by the homeowner’s policy’s marring or scratching exclusion. Greg and Kevin successfully argued that the exclusion applied to bar coverage.
Reprinted courtesy of
Gregory S. Pennington, Traub Lieberman and
Kevin Sullivan, Traub Lieberman
Mr. Pennington may be contacted at gpennington@tlsslaw.com
Mr. Sullivan may be contacted at ksullivan@tlsslaw.com
Read the court decisionRead the full story...Reprinted courtesy of
The “Up” House is “Up” for Sale
May 07, 2015 —
Garret Murai – California Construction Law BlogYou might remember the 2009 Pixar/Disney 3-D animated movie “Up,” about an aging widower, Carl Frederickson, who learns to let go of his past and live his dream of moving he and his beloved late wife’s “clubhouse” to a cliff overlooking Paradise Falls in Venezuela where the once young couple’s hero, Charles Muntz, a famous but now disgraced explorer, was said to have discovered the skeleton of a rare bird which skeptics alleged was fabricated.
In the movie, the “clubhouse” is integral to the plot. In the opening scenes of the movie the audience learns that the clubhouse, which had been Mr. Frederickson’s deceased wife’s clubhouse that the couple later turned into their home, is sitting in the middle of a construction zone because old Mr. Frederickson has refused to sell his house to a developer who has proceeded to build around his house anyway. When a large loader knocks over his mailbox and a construction worker tries to fix it, Mr. Frederickson struggles with the worker not wanting him to touch any of his memories, and in the process inadvertently strikes the man with his cane. Later, in court, Mr. Frederickson learns that he has to leave the house and go to a retirement home. Apparently, justice is quick and decisive in their town. However, instead of going to a retirement home peaceably, codgy Mr. Frederickson rigs the clubhouse with thousands of balloons and proceeds to fly away, home and all. And, so the movie begins.
Soon, however, what some have called the real life “Up house” will be sold. And the story behind the house is about as a interesting as its movie counterpart. And, because we lawyers are into disclosures, I will disclose that “counterpart” is more accurate than “adaption,” since the movie Up was in production before the events giving rise to the real life Up house took place.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
ASCE Statement On White House "Accelerating Infrastructure Summit"
October 17, 2022 —
Maria Lehman, President-elect - American Society of Civil Engineers (ASCE)WASHINGTON, D.C. –We thank the Administration for convening the Accelerating Infrastructure Summit, which highlighted the possibilities stemming from the bipartisan infrastructure law. Nearly one full year since it was passed into law, this transformative legislation is beginning to kickstart vital infrastructure projects nationwide that will improve the country's economic efficiency and prioritize public health and safety.
We know that together, builders, engineers, planners, and those entrusted with infrastructure projects must meet the moment and deliver projects on time, on task, and on budget for communities to make the most of these new resources. This generational investment in infrastructure is much needed - the 2021 Report Card for America's Infrastructure assigned the nation's infrastructure a cumulative grade of "C-" across 17 categories of infrastructure.
ASCE is ready to help optimize these investments for communities across the country and make sure all will benefit, whether it is providing contract templates to expedite the process or offering peer support to smaller and rural agencies.
ASCE is also focused on education in our industry to better equip civil engineers with the knowledge and expertise to execute alternative project delivery methods with a March 2023 Construction Institute Summit in St. Louis, which will provide a dedicated track to highlight innovations that help reduce the time for construction projects.
The bipartisan infrastructure law has provided us the opportunity to transform America and bring our infrastructure into the 21st century, and we will need diverse perspectives, innovative technologies and processes, and a robust workforce to make the most of this once-in-a-generation investment.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
Read the court decisionRead the full story...Reprinted courtesy of
The Death of Retail and Legal Issues
June 15, 2017 —
Wally Zimolong - Supplemental ConditionsThe
National Review recently published an article about the wide ranging economic and social impacts of the death of traditional mid-market shopping malls. The article is not overtly political and at time waxes nostalgic about the prototypical 1980’s shopping mall. However, the article highlights real problems facing the owners of these malls and other traditional shopping centers.
As expected, the economic issues have spurred legal and litigation issues for landlords. One of the issues I have been dealing with is what are a big box tenant’s obligations after a lease expires. Many of the big box tenants that are now vacating malls and shopping centers have been long term tenants. Sometimes, their leases go back decades. In the meantime, the mall may have changed hands. The original lease signed with a second or third removed owner and no doubt amended several times might be long forgotten.
Read the court decisionRead the full story...Reprinted courtesy of
Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage
January 05, 2017 —
Masaki J. Yamada – Ahlers & Cressman PLLCWashington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured.
As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future.
Read the court decisionRead the full story...Reprinted courtesy of
Masaki J. Yamada, Ahlers & Cressman PLLCMr. Yamada may be contacted at
myamada@ac-lawyers.com
Traub Lieberman Partner Stephen Straus Wins Spoliation Motion in Favor of Defendant
June 05, 2023 —
Stephen D. Straus - Traub LiebermanTraub Lieberman Partner Steve Straus represented a refrigeration installation and service company in a subrogation action filed by a property insurer after paying a claim related to extensive water damage at premises on Long Island, New York.
The premises owner purchased a refrigerator, which was sold without a hose to connect to the water source inside the premises. The defendant retailer retained Traub Lieberman’s client to install the refrigerator. Rather than complete the installation using a new water line, the installer used the existing line from the refrigerator that was being replaced. Approximately one week after installation, the owner’s son discovered water on the floor near the refrigerator, and significant water damage in the basement of the residence. The owner filed a claim with the insurer, which sent an investigator to the premises. The retailer also sent a technician to investigate and replace the water supply line. It was reportedly determined that the original line had failed, causing the water release. After the repair, the owner’s son took possession of the old water line, which he kept for a couple of years and then discarded. The insurer initiated a subrogation action against the retailer and the installation company, alleging that the water release was caused by the defendants’ failure to replace the water line when the new unit was installed. Plaintiff claimed that photographs of the old line established that it had been damaged or defective.
Read the court decisionRead the full story...Reprinted courtesy of
Stephen D. Straus, Traub LiebermanMr. Straus may be contacted at
sstraus@tlsslaw.com
Note on First-Party and Third-Party Spoliation of Evidence Claims
October 30, 2018 —
David Adelstein - Florida Construction Legal UpdatesIn an earlier posting, I talked about spoliation of evidence. This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence. This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
