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 ReporterThis 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
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Allegations Versus “True Facts”: Which Govern the Duty to Defend? Bonus! A Georgia Court Clears Up What the Meaning of “Is” Is
December 11, 2023 —
Rachel E. Hudgins & Syed S. Ahmad - Hunton Insurance Recovery BlogCourts scrutinize a complaint’s factual allegations to decide whether the allegations trigger a duty to defend.
[1] If the facts unambiguously exclude coverage, there is no duty to defend.
[2] But what if the factual allegations fall within a policy exclusion, but the allegations are untrue or questionable? What if the true facts would mean the exclusion doesn’t apply? In that case, many courts have found that the insurer should base its decision on the policyholder’s version of the “true facts.”
[3] An insurer can’t rely on the complaint’s allegations to deny coverage when the facts that the insurer knows or can ascertain show that the claim is covered.
[4]
A recent case,
United Minerals & Properties Inc. v. Phoenix Insurance Co., No. 4:23-cv-00050 (N.D. Ga.), illustrates these policy interpretation principles.
Reprinted courtesy of
Rachel E. Hudgins, Hunton Andrews Kurth and
Syed S. Ahmad, Hunton Andrews Kurth
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
Mr. Ahmad may be contacted at sahmad@HuntonAK.com
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Can I Be Required to Mediate, Arbitrate or Litigate a California Construction Dispute in Some Other State?
September 19, 2022 —
William L. Porter - Porter Law GroupIt is not uncommon in the construction industry for an out-of-state general contractor to include a provision in a subcontract requiring a California subcontractor to resolve disputes outside the state of California, even though the work is to be performed within California. Fortunately, most California subcontractors are immune from this tactic. California law generally prohibits clauses requiring subcontractors to travel outside California to resolve construction disputes.
California Code of Civil Procedure Section 410.42, [CCP 410.42 Link] renders “void and unenforceable,” any provision in a contract that “purports to require any dispute to be litigated, arbitrated, or otherwise determined outside this state,” so long as the contract is “between the contractor and a subcontractor with principal offices in the state, for the construction of a public or private work of improvement in this state.” Similarly, this law voids any similar contractual term that might prevent the California subcontractor from commencing an action, obtaining a judgment, or resolving its dispute in the courts of California.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Georgia Court of Appeals Holds That Policyholder Can “Stack” the Limits of Each Primary Policy After Asbestos Claim
December 19, 2018 —
Michael S. Levine & Alexander D. Russo - Hunton Insurance Recovery BlogA Georgia Court of Appeals judge recently ruled that Scapa Dryer Fabrics was entitled to $17.4 million worth of primary coverage from National Union Fire Insurance Company of Pittsburgh, PA for claims of injurious exposure to Scapa’s asbestos-containing dryer felts. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Scapa Dryer Fabrics, Inc., No. A18A1173, 2018 WL 5306693, at *1 (Ga. Ct. App. Oct. 26, 2018). Scapa sought coverage under five National Union policies issued from 1983–1987. The 1983, 1984 and 1985 National Union policies had limits of $1 million per occurrence and $1 million in the aggregate. The liability limits for the 1986 and 1987 renewal policies were amended by endorsement to $7.2 million. Scapa sought to recover the full $17.4 million from all five policies. National Union argued that a “Non-Cumulative Limits of Liability Endorsement” in the 1986 and 1987 policies limited Scapa’s recovery to only $7.2 million. Scapa sued National Union and its sister company, New Hampshire Insurance Company (from which Scapa purchased excess liability coverage), in Georgia state court.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Alexander D. Russo, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Russo may be contacted at arusso@HuntonAK.com
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Colorado Senate Revives Construction Defects Reform Bill
January 04, 2018 —
BEVERLEY BEVENFLOREZ - CDJ STAFFOriginally Published by CDJ on March 1, 2017
A re-booted construction defects reform bill recently passed its first Senate committee, according to the Denver Business Journal. Next, Senate Bill 156, sponsored by Sen. Owen Hill, R-Colorado Springs, heads to the Senate floor for debate.
SB 156 “would require that condominium owners alleging construction defects take their disputes to arbitration or mediation if requested by builders,” the Denver Business Journal reported. “It also would require that homeowners be informed of the consequences of filing legal actions over purported disputes and that a majority of all owners in a condominium complex vote to proceed with legal action, rather than just a majority of homeowners association board members.”
However, it is almost identical to the failed measures that were introduced in 2014 and 2015.
Homeowners association group members and owners of defective condominiums argued against the measure, stating “that the effort would not improve the quality of building in the state, but simply would block aggrieved Coloradans from taking their complaints before a jury of their peers.”
Proponent of the bill, Tom Clark, CEO of Metro Denver Economic Development Corp., said “that Denver’s housing costs have risen since the first bill was introduced in 2013 to the sixth-most-expensive in the country – and are tops for any metro area not on a coast.”
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The Final Nail: Ongoing Repairs Do Not Toll the Statute of Repose
November 07, 2022 —
Kyle Rice - The Subrogation StrategistIn Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008.
The underlying cause of action involved a home constructed by Moser Builders, Inc. (Moser) in 2003. The certificate of occupancy for the home was issued on August 13, 2003. Matthew Venema and Liza Squires (collectively, Venema) purchased the property from the original owners in 2004.
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com
Developers Can Tap into DOE’s $400 Million for Remote and Rural Clean Energy Projects
December 10, 2024 —
Robert A. James, Elina Teplinsky, Alicia M. McKnight, Sidney L. Fowler & Clarence H. Tolliver - Gravel2Gavel BlogOn October 3, 2024, the Department of Energy Office of Clean Energy Demonstrations announced a Notice of Funding Opportunity (NOFO) to fund up to $400 million for clean energy projects in rural and remote areas via its Energy Improvements in Rural or Remote Areas program. The NOFO will provide awards ranging from $2 million – $50 million, with plans to fund 20 to 50 projects. Awards will require a non-federal cost share, range across four topic areas, and target projects in rural and remote communities with populations of 10,000 people or fewer.
Eligibility
Applications are open to a wide range of entities, including for-profit and nonprofit organizations, state and local governmental entities, Indian Tribes and Tribal organizations, institutions of higher education, rural electric cooperatives, incorporated and unincorporated consortia, farming associations and cooperatives, and labor unions. Generally applicants must be U.S. entities, but foreign entities may be allowed to participate in limited circumstances. Applicants must identify at least one area in the U.S. or U.S. territories with a population of up to 10,000 people which will benefit from the proposal.
Reprinted courtesy of
Robert A. James, Pillsbury,
Elina Teplinsky, Pillsbury,
Alicia M. McKnight, Pillsbury,
Sidney L. Fowler, Pillsbury and
Clarence H. Tolliver, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Teplinsky may be contacted at elina.teplinsky@pillsburylaw.com
Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com
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Two Architecturally Prized Buildings May be Demolished
January 17, 2014 —
Beverley BevenFlorez-CDJ STAFFThe historic Portland Public Services Building, designed by Michael Graves, may be demolished after a report showed that “the 32-year-old building needs more than $95 million worth of repairs,” Dezeen Magazine reported. The Portland, Oregon building “is credited with being one of the first major buildings of postmodernism.” According to The Oregonian, the Portland city commissioners have differing opinions as to how to proceed. Council member Amanda Fritz commented that she “doesn’t think the problems at The Portland Building are all that bad compared to other city facilities,” while council member Nick Fish stated, “There’s got to be a better option than putting another $100 million into a white elephant.”
Dezeen Magazine also reported that the former American Folk Art Museum in New York is scheduled to be demolished to make room to extend the Museum of Modern Art (MoMA). Glenn Lowry, the MoMA director, stated that the decision came after a six-month study: “The analysis that we undertook was lengthy and rigorous, and ultimately led us to the determination that creating a new building on the site of the former American Folk Art Museum is the only way to achieve a fully integrated campus.”
The decision is being criticized by “architects, conservationists, and critics” reported Dezeen Magazine. Architects Tod Williams and Billie Tsien designed the former American Folk Art Museum. Williams and Tsien stated, “Demolishing this human-scaled, uniquely crafted building is a loss to the city of New York in terms of respecting the size, diversity and texture of buildings in a midtown neighborhood that is at risk of becoming increasingly homogenized."
Read the full story at Dezeen Magazine re The Portland Building...
Read the full story at The Oregonian re The Portland Building...
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