Hawaii Supreme Court Finds Climate Change Lawsuit Barred by “Pollution Exclusion”
November 05, 2024 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn October 7, 2024, the Hawaii Supreme Court answered the question of whether an “accident” includes an insured’s reckless conduct in emitting harmful greenhouse gases (“GHGs”) and whether such emissions are “pollutants” as defined in a general liability policy’s pollution exclusion. In Aloha Petro., Ltd. v. National Union Fire Insurance Co. of Pitt., PA, No., 2024 Haw. LEXIS 179 (Oct. 7, 2024), the Hawaii Supreme Court answered in the affirmative as to both certified questions from the United States District Court for the District of Hawaii, holding that an insured’s reckless conduct can be an “accident” and that GHGs are “pollutants” under the policies’ pollution exclusions.
In the underlying case, the County of Honolulu and the County of Maui (the “Counties”) sued Aloha Petroleum, Ltd. (“Aloha”) and several other fossil fuel companies for climate change-related harms. Namely, the Counties alleged that the fossil fuel industry knew that its products would cause catastrophic climate change, and rather than mitigating their emissions, defendants concealed such knowledge, promoted climate science denial, and increased their production of fossil fuels. Aloha was allegedly on notice that its products caused harmful climate change through its former parent company, Phillips 66, and its current parent company, Sunoco. Given this knowledge, the District Court determined that the Counties allegations constituted reckless conduct by Aloha.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Courts Will Not Rewrite Your Post-Loss Property Insurance Obligations
June 14, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn the preceding
posting, I wrote about making sure you comply with your property insurance policy’s post-loss policy obligations. By failing to comply, you can render your policy ineffective meaning you are forfeiting otherwise valid insurance coverage, which was the situation discussed in the preceding posting. As an insured, you should never want this to occur!
In another case, discussed
here, the property insurance policy had a preferred contractor endorsement. This means that instead of paying the insured insurance proceeds, the insurer could perform the repairs with its preferred contractor. Typically, the insured will pay a discount on their premium for this preferred contractor endorsement. The insurer elected to move forward with the repairs based on the preferred contractor endorsement but the insured performed the repairs on his own and then sold the house. By doing this, the appellate court held the insured rendered his policy ineffective by breaching his own policy (and failing to allow this post-loss obligation to take place). The explicit terms of the policy allowed the insurer to perform the repairs instead of paying the insured insurance proceeds. The court could NOT rewrite the post-loss obligations in the policy by requiring the insurer to pay insurance proceeds when the insurer, per the preferred contractor endorsement, elected to perform the repairs.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Property Owners Sue San Francisco Over Sinking Sidewalks
June 20, 2022 —
Beverley BevenFlorez – CDJ StaffResidents of the Mission Bay neighborhood seek “to hold the City of San Francisco responsible for raising up the sinking sidewalks” reported
KRON 4. The suit alleges that the city should shoulder the responsibility for the necessary work needed for the infrastructure.
Historically, “the neighborhood around the Chase Center east of Interstate 280 was part of the bay,” according to
SF Gate. Later, “the area was filled with dirt and rock and further filled with rubble after the 1906 earthquake.” In 1998, further development took place. All of the “new occupied buildings in Mission Bay, such as the UCSF campus, the Chase Center and the 6,000 residential units there, are anchored into the bedrock," but "the sidewalks, streets and parks are not, and that's a problem.”
"We're not asking for a handout; we're asking for a hand. We want them to step forward and make the repairs that they can actually implement,"
Scott Mackey, Partner at
Berding | Weil, told
CBS News. "Everyone understood that it's built on fill and built in an area where there would be some settlement. But, there also is an expectation that when the city turns over the infrastructure that that homeowners and property owners have to maintain, is that it's built correctly - that they're able to maintain it. The homeowners cannot continually chase the differential movement.”
Read the full story at KRON 4...
Read the full story at SF Gate...
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NIBS Consultative Council Issues Moving Forward Report on Healthy Buildings
July 25, 2021 —
National Institute of Building Sciences(WASHINGTON, DC, July 13, 2021) – The
National Institute of Building Sciences Consultative Council has issued its
2020 Moving Forward Report, looking closely at the importance of healthy buildings.
The report examines how buildings can protect and promote public health, providing recommendations for President Biden and policymakers on three components of healthy buildings: indoor environmental quality, the importance of design in promoting health, and promoting knowledge transfer between building owners and public health officials.
“Ensuring that the spaces where we live and work are healthy and safe for continued occupancy is critical to overcoming the pandemic,” said Lakisha A. Woods, CAE, President and CEO of NIBS. “This is a fundamental pillar of public health and community resilience. The concept of healthy buildings goes well beyond continual sanitation of a building’s indoor environment to eliminate pathogens.”
About NIBS
National Institute of Building Sciences brings together labor and consumer interests, government representatives, regulatory agencies, and members of the building industry to identify and resolve problems and potential problems around the construction of housing and commercial buildings. NIBS is a nonprofit, non-governmental organization. It was established by Congress in 1974. For more information, visit nibs.org or follow @bldgsciences on Twitter and Facebook.
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Continuing Breach Doctrine
May 28, 2024 —
David Adelstein - Florida Construction Legal UpdatesHave you ever heard of the “continuing breach” doctrine? Probably not. It is not a doctrine commonly discussed. It’s a doctrine used to try to argue around the statute of limitations.
In an older Southern District Court of Florida case, Allapattah Services, Inc. v. Exxon Corp., 188 F.R.Ed. 667, 679 (S.D.Fla. 1999), the court explained: “Under this [continuing breach] doctrine, a cause of action for breach of a contract does not begin to accrue upon the initial breach; rather, on contracts providing serial performance by the parties, accrual of a breach of contract cause of action commences upon the occurrence of the last breach or upon termination of the contract.”
Recently, this doctrine came up in an opinion by Florida’s Fifth District Court of Appeal. In Hernando County, Florida v. Hernando County Fair Association, Inc., 49 Fla.L.Weekly D947b (Fla. 5th DCA 2024), a plaintiff appealed the trial court’s dismissal with prejudice of its breach of contract claim based on the statute of limitations. The plaintiff claimed the defendant breached the contract by its failure to substantially redevelop property. The trial court dismissed based on the statute of limitations. However, the complaint alleged the defendant’s failure to comply “with numerous other intertwined, ongoing, and continuing contractual duties and obligations.” Hernando County, supra. The Fifth District reversed based on the continuing breach doctrine: “Where the nature of the contract is continuous, statutes of limitations do not typically begin to run until termination of the entire contract.” Id. quoting and citing Allapattah Servs., Inc.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Virtual Jury Trials of Construction Disputes: The Necessary Union of Both Sides of the Brain
May 17, 2021 —
John Dannecker - Construction ExecutiveBart Smith is the Senior Project Manager for Simply Best, a general contracting firm. He has been assigned to serve as the liaison with outside counsel in a lawsuit against Holly’s Harleys, a project owner who contracted with Best for the construction of a motorcycle showroom. Best filed suit in federal court for additional project costs it incurred, which it contends were caused by the specification of incompatible materials by Holly’s design firm.
The coronavirus pandemic is still raging as the trial date approaches. Courthouse facilities are closed so civil trials are conducted using remote technology, if they occur at all. Bart negotiated the prime contract with Holly’s, and he regrettably allowed Best’s binding arbitration and jury trial waiver clauses in the prime contract to be deleted. Bart worries about how the intricacies of Best’s case can be adequately explained to a jury in a remote trial. His concern approaches panic when Best’s trial counsel explains how the trial will be conducted with none of the parties—their attorneys, the judge, the witnesses or the jury—present in the same location.
Reprinted courtesy of
John Dannecker, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Congratulations to Haight Attorneys Selected for the 2024 Edition of Best Lawyers and Best Lawyers: Ones to Watch
September 11, 2023 —
Haight Brown & Bonesteel LLPBest Lawyers and Best Lawyers: Ones to Watch – 2024 Edition
Best Lawyers 2024 Edition
- Bruce Cleeland
- Peter Dubrawski
- Denis Moriarty
- Theodore Penny
Best Lawyers: Ones to Watch 2024 Edition
- Frances Brower
- Kyle DiNicola
- Kristian Moriarty
- Arezoo Jamshidi
- Josh Maltzer
- Philip McDermott
- Patrick McIntyre
- Annette Mijanovic
- Kathleen Moriarty
- Bethsaida Obra-White
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Haight Brown & Bonesteel LLP
Federal Court Holds That Other Insurance Analysis Is Unnecessary If Policies Cover Different Risks
September 28, 2020 —
Craig Rokuson - Traub Lieberman Insurance Law BlogIn Greater Mutual Insurance Company v. Continental Casualty Company, 2020 WL 5370419 (S.D.N.Y. September 8, 2020), the United States District Court for the Southern District of New York had occasion to consider the “other insurance” provisions of a commercial general liability policy, issued by Greater Mutual Insurance Company (“GNY”), and a directors and officers (“D&O”) policy, issued by Continental, to the same insured. The GNY policy covered, inter alia, property damage caused by an occurrence, as well as “personal advertising injury,” defined to include “[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” The Continental D&O policy covered claims for wrongful acts, including “wrongful entry or eviction, or other invasion of the right to private occupancy. . . .” Unlike the GNY policy, however, the Continental policy expressly excluded coverage for damage to tangible property.
In the underlying action, the plaintiffs alleged that the insured engaged in construction work to fix a leak from a terrace on the seventeenth floor. In doing so, the insured accessed the plaintiffs’ roof terrace. The plaintiffs alleged that the construction workers installed and stored construction materials on the roof terrace, making the plaintiffs unable to access the terrace. Plaintiffs also alleged that their deck furniture may have suffered damage, and that the workers had a “direct line of sight” into their unit, resulting in the plaintiffs having to leave their unit frequently. Causes of action were for property damage, constructive eviction, partial constructive eviction, and invasion of privacy.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
