Fairfield Connecticut Building Expert Directory

COVID-19 Is Not Direct Physical Loss Or Damage

April 13, 2020 — Joseph Blyskal, Dennis Brown & Michelle Bernard - Gordon & Rees Insurance Coverage Law Blog
Is a cash register that is not being used damaged property? When you need to wash a table, a chair, or a section of flooring with readily available cleaning products to make them safe and useable, are you repairing damaged property? Is a spilled cup of coffee waiting to be wiped up actual damage to the premises? If your customers stay home to help stop the spread of a virus, has there been a physical loss inside your shuttered store or restaurant? The insuring agreements typically found in commercial property insurance policies require “direct physical loss of or damage to” covered property as the triggering event. Without establishing direct physical loss or damage a policyholder cannot meet its burden to trigger coverage for a purely economic loss of business income resulting from shuttering its business due to concerns over exposure to—or even the actual presence of—COVID-19. Despite this well-understood policy language, it is already beyond question that insurers will confront creative—albeit strained—arguments from policyholder firms attempting to trigger coverage for pure economic loss. The scope of the human and economic tragedy we all face will be matched by the scope of the effort to force the financial harm onto insurance companies. The plaintiffs in what appears to be the first-filed case seeking a declaratory judgment in the context of first-party insurance coverage rely on the assertion that “contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces” of its establishment, a New Orleans restaurant, to trigger coverage for business interruption.[1] See Cajun Conti, LLC, et. al. v. Certain Underwriters at Lloyd’s, London, et. al. Civil District Court for the Parish of Orleans, State of Louisiana. The complaint alleges that the property is insured under an “all risk policy” defining “covered causes of loss” as “direct physical loss.” The plaintiffs rely on the alleged presence of the virus on “the surface of objects” in certain conditions and the need to clean those surfaces. They go so far as to claim that “[a]ny effort by [the insurer] to deny the reality that the virus causes physical damage and loss would constitute a false and potentially fraudulent misrepresentation. . . .” Reprinted courtesy of Gordon & Rees attorneys Joseph Blyskal, Dennis Brown and Michelle Bernard Mr. Blyskal may be contacted at tblatchley@grsm.com Mr. Brown may be contacted at dbrown@grsm.com Ms. Bernard may be contacted at mbernard@grsm.com Read the court decision
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2018 Legislative Changes Affecting the Construction Industry

June 06, 2018 — Melinda S. Gentile - Peckar & Abramson
The 2018 Florida Legislative Session recently concluded and a number of important construction-related House Bills (HB) and Senate Bills (SB) were presented during the Session. Florida Governor Rick Scott has 15 days to act on the legislation once each Bill has passed the House and Senate. Bills signed by the Governor go into effect on July 1, 2018, unless indicated otherwise. These Bills may impact General Contractors and Construction Managers in a number of ways, not the least of which is the period of time that a cause of action may be initiated for the design, planning or construction of an improvement. Read the court decision
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Reprinted courtesy of Melinda Gentile, Peckar & Abramson
Ms. Gentile may be contacted at mgentile@pecklaw.com

Traub Lieberman Partner Eric D. Suben Obtains Federal Second Circuit Affirmance of Summary Judgment in Insurer’s Favor

April 10, 2023 — Eric D. Suben - Traub Lieberman
In the underlying action, a property owner hosting a motorcycle rally was sued after a motorcycle collided with an auto near the entrance to the premises, injuring the cyclists. The cyclists sued the property owner, among others, alleging failure to supervising traffic on the adjoining roadway. The property owner tendered the claim under its CGL policy, which was endorsed with an “absolute auto exclusion,” precluding coverage for claims “arising out of or resulting from the ownership, maintenance, use or entrustment to others of any…auto.” The CGL insurer disclaimed coverage based on the endorsement. In the ensuing coverage litigation, Traub Lieberman represented the insurer, and moved for summary judgment arguing that the “absolute auto exclusion” was dispositive of coverage on the facts alleged, citing case law from New York state courts enforcing similar exclusions to preclude coverage for multi-vehicle accidents. The insured argued in opposition that the outcome should be controlled by Essex Insurance Company v. Grande Stone Quarry, LLC, 82 A.D.3d 1326, 918 N.Y.S.2d 238 (3rd Dep’t 2011), in which the court declined to apply such exclusion in the case of a single-vehicle accident caused by a dangerous condition of the insured’s premises. The federal district judge disagreed with the insured’s argument in this regard, granting Traub Lieberman’s motion for summary judgment in favor of the insurer. Read the court decision
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Reprinted courtesy of Eric D. Suben, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com

Heavy Rains Cause Flooding, Mudslides in Japan

July 31, 2023 — Associated Press - Bloomberg
TOKYO (AP) — Torrential rain pounded southwestern Japan, triggering floods and mudslides and leaving two people dead and at least six others missing, officials said Monday. Rain falling in the regions of Kyushu and Chugoku since the weekend caused flooding along many rivers, triggered mudslides, closed roads, disrupted trains and cut the water supply in some areas. The Japan Meteorological Agency issued an emergency heavy rain warning for Fukuoka and Oita prefectures on the southern main island of Kyushu, urging residents in riverside and hillside areas to take maximum caution. More than 1.7 million residents in vulnerable areas were urged to take shelter. The emergency warning was downgraded later Monday to a regular warning. Read the court decision
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Reprinted courtesy of Bloomberg

Congratulations to BWB&O’s 2024 Southern California Super Lawyers!

February 05, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
BWB&O is excited to announce that Partners Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser have been selected in the 2024 Southern California Super Lawyers list as Super Lawyers for their work in Business Litigation, Family Litigation, Personal Injury Litigation, and Construction Litigation. To read Super Lawyers’ digital publication, please click here. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Please join us in congratulating Nicole, Keith, John, and Tyler on achieving this level of recognition! Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

The Rise of Modular Construction – Impacts for Consideration

December 04, 2023 — Chad V. Theriot - ConsensusDocs
Modular construction is not new. However, over the last several years, modular construction has seen significant growth with no signs of slowing down. In 2021, global modular construction represented a market of approximately $130 billion and is projected to reach upwards of $235 billion by 2031. Modular construction growth in the US is largely due to the technological advances and globalization. In general, modular construction involves the manufacturing and fabrication of standardized components of a structure in an off-site, controlled environment. Once those components are fabricated, they are then transported to the project site and assembled by an installer or contractor. Moving these fabrication and construction activities off-site allows the fabricator to control the quality standards over the fabrication process and gain the economic advantage of an assembly line and manufacturing process. This leads to a reduction in cost. This cost savings is then passed on to the owner, thereby driving down the overall price of construction. Read the court decision
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Reprinted courtesy of Chad V. Theriot, Jones Walker (ConsensusDocs)
Mr. Theriot may be contacted at ctheriot@joneswalker.com

New York Court of Appeals Finds a Proximate Cause Standard in Additional Insured Endorsements

June 15, 2017 — Geoffrey Miller - Saxe Doernberger & Vita, P.C.
In The Burlington Insurance Company v. NYC Transit Authority, et al., No. 2016-00096, the New York Court of Appeals issued a landmark decision with regard to the meaning of “caused, in whole or in part, by” in the additional insured context. In a split decision, the court rejected Burlington Insurance Company’s argument that the language implied a “negligence” standard, but held that coverage was provided to the additional insured only where the named insured’s acts or omissions were the proximate cause of the injury:

While we [the majority] agree with the dissent that interpreting the phrases differently does not compel the conclusion that the endorsement incorporates a negligence requirement, it does compel us to interpret ‘caused, in whole or in part’ to mean more than ‘but for’ causation. That interpretation, coupled with the endorsement’s application to acts or omissions that result in liability, supports our conclusion that proximate cause is required here.[1]

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Reprinted courtesy of Geoffrey Miller, Saxe Doernberger & Vita, P.C.
Mr. Miller may be contacted at gjm@sdvlaw.com

Struggling Astaldi Announces Defaults on Florida Highway Contracts

April 22, 2019 — Scott Judy - Engineering News-Record
Astaldi Construction Corp. announced on March 28 that it was voluntarily defaulting on four contracts with the Florida Dept. of Transportation. Included among those was a $108.3-million contract covering the 3.5-mile-long Section 7A for the $1.6-billion Wekiva Parkway project. Astaldi’s default on that project comes nearly a year after the contractor commenced work on April 1, 2018. Read the court decision
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Reprinted courtesy of Scott Judy, ENR
Mr. Judy may be contacted at judys@enr.com

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