Sinking Floor Does Not Meet Strict Definition of Collapse
August 17, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined that the sinking of the insured's floor caused by termites and rot deterioration did not meet the homeowners policy's definition of collapse. Stewart v. Metro. Lloyds Ins. Co., 2020 U.S. Dist. LEXIS 111527 (S.D. Tex. June 24, 2020).
Beatrice Stewart, the homeowner, heard a loud bang one night as she lay in bed. The next day, she found that the floor near her bathroom and hallway had sunk and the house was sitting lower. She admitted the house never completely fell down. Upon investigation, Lloyds found that rot in the floor joists and subfloor decking were caused by a combination of termite damage and exposure to moisture. Lloyds denied the claim.
Stewart sued. Lloyds argued the policy required an "entire collapse" of the building or any part of a building, which did not occur here. The policy defined "collapse" as "an abrupt falling down or caving in of a building or any part of a building." The record did not show that any part of Stewart's floor caved in.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Court Holds That Insurance Producer Cannot Be Liable for Denial of COVID-19 Business Interruption Claim
November 23, 2020 —
Christopher P. Leise & Marc L. Penchansky - White and Williams LLPAfter an insurance carrier denied a lawyer and her law firm’s claim for lost business income due to the COVID-19-related shutdown, she sued both her carrier and the insurance producer that procured the policy. See Wilson v. Hartford Casualty Company, No. 20-3384 (E.D.Pa. Sep. 30, 2020). In one of the first cases to consider producer liability in COVID-19 cases, Judge Eduardo Robreno dismissed the lawsuit against the producer and the carrier.
USI procured the Policy from Hartford for Rhonda Hill Wilson and her law firm. The Policy included coverage for lost business income and extra expense caused by direct physical loss of, or damage to property. Similarly, the Policy covered lost business income if a nearby property experienced a direct physical loss that caused a civil authority to issue an order that prohibited access to the law firm’s property. The Policy also included a virus exclusion “for loss or damage caused directly or indirectly by . . . [p]resence, growth, proliferation, spread or any activity of . . . virus.”
Judge Robreno did not decide whether the Policy afforded any coverage to Wilson and her law firm for their COVID-19 losses. Rather, he found that even if they could, the virus exclusion unambiguously barred any coverage they could possibly claim. For that reason, Judge Robreno dismissed the claims against Hartford.
Reprinted courtesy of
Christopher P. Leise, White and Williams LLP and
Marc L. Penchansky, White and Williams LLP
Mr. Leise may be contacted at leisec@whiteandwilliams.com
Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com
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Court Rules Planned Development of Banning Ranch May Proceed
June 10, 2015 —
Kristian B. Moriarty and Lawrence S. Zucker II – Haight Brown & Bonesteel, LLPIn Banning Ranch Conservancy v. City of Newport Beach (filed 5/20/2015, No. G049691), the California Court of Appeal, Fourth District, held the Environmental Impact Report prepared by the City of Newport Beach for the partial development of Banning Ranch complied with California environmental protection statutes and local ordinances.
Under the California Environmental Quality Act (“CEQA”), a city desiring to approve or carry out a project that may have significant effect on the environment must prepare an environmental impact report (“EIR”) designed to provide the public with detailed information about the effect which a proposed project will have on the environment. The California Coastal Act of 1976 provides for heightened protection of environmentally sensitive habitat areas (“ESHA”) defined as any “area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.”
In 2006, the City of Newport Beach adopted a General Plan for the physical development of the city. The plan specifically identifies Banning Ranch as having significant value as a wildlife habitat and open space resource for citizens. The general plan includes a primary goal of complete preservation of Banning Ranch as open space. To the extent the primary goal cannot be achieved, the plan identifies a secondary goal allowing limited development of Banning Ranch “to fund preservation of the majority of the property as open space.” The plan also requires the City to coordinate any development with the state and federal agencies.
Reprinted courtesy of
Kristian B. Moriarty, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com
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Top 10 Insurance Cases of 2023
January 29, 2024 —
Jeffrey J. Vita & Michael A. Amato - Saxe Doernberger & Vita, P.C.Federal and state courts tackled many interesting insurance-related issues this past year. Perhaps no state had a more impactful year than Illinois, which held that construction defects could constitute an occurrence, that a LEG 3 “extension” attempting to preclude coverage for faulty or defective workmanship was ambiguous as a matter of law (applying Illinois law), and that ostensibly prohibitive “catch-all exclusions” can render policy language ambiguous in favor of coverage. Other courts wrestled with procedural inquiries, such as the legal duty of a broker in providing notice to an insurer or the ability of an insured to recoup its attorneys’ fees in pursuing a coverage action against its insurer. These are merely a sampling of the impactful insurance decisions rendered in 2023.
Each year, we endeavor to identify cases of general interest to our clients and the broader insurance community. Specifically, we attempt to identify trends, cases of first impression, cases illustrating conflicts among the courts, or cases dealing with emerging issues. We now proudly unveil the top 10 most influential coverage decisions of 2023 and look ahead to a few cases to watch as 2024 unfolds.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
Michael A. Amato, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at JVita@sdvlaw.com
Mr. Amato may be contacted at MAmato@sdvlaw.com
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Pennsylvania Federal Court Addresses Recurring Asbestos Coverage Issues
March 04, 2019 —
Craig O’Neill & Laura Rossi - Complex Insurance Coverage ReporterIn a pair of recent asbestos coverage decisions, a Pennsylvania federal court issued rulings addressing expedited funding orders, number of “occurrences,” and the applicability of aggregate limits under the Fourth Circuit’s Wallace & Gale approach.
Zurn Industries, LLC v. Allstate Insurance Company, 2018 U.S. Dist. LEXIS 197481 (W.D. Pa. Nov. 20, 2018)
Policyholder Zurn, a manufacturer and distributor of boilers, was named as a defendant in thousands of underlying asbestos-related bodily injury suits. After its primary insurers claimed exhaustion, Zurn moved on an expedited basis to require two of its excess insurers to each assume fifty percent of its defense and indemnity costs until they reached a permanent cost-sharing agreement. In denying Zurn’s expedited request for interim funding, the court held that the record was insufficient “in the opening stages of litigation, before discovery has occurred” to determine whether the underlying coverage had been properly exhausted but left the door open for Zurn to refile its motion on a more developed record.
Reprinted courtesy of
Craig O’Neill, White and Williams LLP and
Laura Rossi, White and Williams LLP
Mr. Levine may be contacted at oneillc@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com
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You’re Only as Good as Those with Whom You Contract
April 17, 2019 —
Christopher G. Hill - Construction Law MusingsI have been beating the drum of the need to have a solid construction contract as the basis for your construction project and contractor/subcontractor/supplier relationships. I have also emphasized that communication early and often is one of the best ways to assure a smooth project. However, the sad truth is that even with the best contract drafted with the assistance of an experienced construction attorney, if the other party to the contract simply decides not to perform, whether that is through unjustified non-payment or simple refusal to complete a scope of work without reason, it will be an expensive proposition to force compliance or be compensated for the monetary damage caused by such actions.
It is this often unmentioned truth relating to any contract, including those that construction professionals in Virginia deal with on a daily basis, that makes having a good knowledge of those with whom you plan to contract is key to a successful (read profitable) construction project. Of course be sure that any contractor or subcontractor you contract with has the basics of propoer insurance, the right experience and of course a contractor’s license with the proper specialty or specialties. These basics will get you most of the way to assuring that those that contract with you at least are responsible in business. Another key component, if you can find this information out, is the financial wherwithall of the other party. For a General Contractor, this means both sides of the equation: Owner and Subcontractors. For a Subcontractor, the key is the Contractor, but any other information you can get on the Owner is helpful (though this can be difficult) particularly in the face of a “pay if paid” clause.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
With Vice President's Tie-Breaker, US Senate Approves Far-Reaching Climate Bill
August 29, 2022 —
Pam McFarland & Debra K. Rubin - Engineering News-RecordWith Vice President Kamala Harris casting the decisive vote, the U.S. Senate passed 51-50 an economic package on Aug. 7 that authorizes $369 billion to address climate change. The bill now moves to the U.S. House of Representatives, which is expected to pass the bill later this week, and then to the White House for President Joe Biden's signature.
Reprinted courtesy of
Pam McFarland, Engineering News-Record and
Debra K. Rubin, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
Ms. Rubin may be contacted at rubind@enr.com
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Certified Question Asks Hawaii Supreme Court to Determine Coverage for Allegations of Greenhouse Gas Emissions
October 09, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court certified questions to the Hawaii Supreme Court regarding coverage for underlying allegations of greenhouse gas emissions. Aloha Petroleum, Ltd. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 2023 U.S. Dist. LEXIS 156211 (D. Haw. Sept. 5, 2023).
Aloha was sued in two lawsuits, one filed by the County of Maui and the second filed by the City and County of Honolulu. The underlying lawsuits alleged that Aloha disregarded known risks of harm to the counties when selling its fuel products that would inevitably combust and produce greenhouse gasses, particularly carbon dioxide, thereby changing the climate and causing harm to the counties.
Aloha tendered the suits to AIG. Coverage was denied based on AIG's determination there was no "occurrence" and the pollution exclusion barred coverage. Aloha sued AIG in federal district court seeking a declaratory judgment on AIG's obligations under the policy.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
