California’s Right to Repair Act not an Exclusive Remedy
August 20, 2014 —
Beverley BevenFlorez-CDJ STAFFKaren L. Moore of Low, Ball & Lynch in JD Supra Business Advisor analyzed “two decisions holding that California’s Right to Repair Act ('SB 800') is not the exclusive remedy for a homeowner seeking damages for construction defects that have also resulted in property damage.” If property damage occurs due to construction defects, a homeowner “may also pursue common law tort causes of action.”
After providing a brief background of California’s SB 800 and Aas v. Superior Court (which precluded the Right to Repair Act), Moore discussed the results of Liberty Mutual Insurance Company v. Broofield Crystal Cove, LLC, followed by a review of Burch v. Superior Court. Moore commented that “[t]hese two cases will likely be used by homeowners to avoid application of the Right to Repair Act’s pre-litigation procedures.”
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Contractor to Repair Defective Stucco, Plans on Suing Subcontractor
February 21, 2013 —
CDJ STAFFThe contractor for the Manatee County Judicial Center will be replacing the defective stucco on the building, but they have stated that they intend to go after the subcontractor who initially installed the defective stucco. The contractor, Balfour Beatty LLC, has said they will pay for the repairs, but Steve Holt, an executive of the firm said that “we have initiated a lawsuit against the subcontractor, who we believe was substantially or completely responsible to recover those funds.” Mr. Holt named Commercial Plastering as the subcontractor responsible.
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When an Insurer Proceeds as Subrogee, Defendants Cannot Assert Contribution Claims Against the Insured
July 15, 2019 —
Shannon M. Warren - The Subrogation StrategistIn Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint.
The underlying subrogation action involved allegations of strict liability, negligence and breach of warranty against a pellet heater manufacturer and the retailer who sold the heater. The claims arose from a fire allegedly originating from the heater, which spread to the insureds-subrogors’ home causing property damage, along with consequential damages. Pursuant to the applicable insurance policy, the insureds-subrogors’ insurer issued payments to its insureds-subrogors. Thereafter, the insurer filed suit against the heater manufacturer and retailer.
The defendants filed a motion for leave to file a third-party complaint against the plaintiff’s insureds-subrogors, seeking to assert a contribution claim. The defendants alleged that the insureds-subrogors failed to properly install and maintain the pellet heater. The defendants also sought a jury instruction that would permit the jury to apportion fault to the insureds-subrogors, resulting in a reduction of the plaintiff’s recovery. The court looked to federal procedural law, but Kentucky substantive law to decide the defendants’ motion.
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Shannon M. Warren, White and WilliamsMs. Warren may be contacted at
warrens@whiteandwilliams.com
Statute of Limitations and Bad Faith Claims: Factors to Consider
May 16, 2022 —
Anastasiya Collins - Saxe Doernberger & Vita How much time do our clients have to bring a bad faith action against an insurer? Although we are not frequently asked this question, it is one that we constantly analyze before asserting a bad faith claim.
To answer this question, we look to the statute of limitations, which is a law passed by a state legislative body that sets the maximum amount of time for a party to bring a claim based upon a particular cause of action. For policyholders, knowing which statute of limitations applies to their bad faith claim is critical because it indicates whether it is possible to initiate legal proceedings. In addition, it determines the amount in damages available in case of a successful resolution.
Statute of Limitations in Breach of Contract vs. Tort Claims
One key determinant of a statute of limitations for bad faith is whether the claim is brought as a tort or a breach of contract action. The consequence of framing bad faith as a tort is that a policyholder is not just limited to contract damages. The policyholder can also receive recourse for emotional distress, pain, suffering, punitive damages, attorney’s fees, and other damages that the court may consider appropriate. Unfortunately, however, not every jurisdiction allows plaintiffs to bring bad faith actions as tort claims. While, for example, courts in California, Colorado, and Connecticut allow bad faith claims sounding in tort, courts in jurisdictions such as Tennessee do not.
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Anastasiya Collins, Saxe Doernberger & VitaMs. Collins may be contacted at
ACollins@sdvlaw.com
North Carolina Appeals Court Threatens Long-Term Express Warranties
April 09, 2014 —
Beverley BevenFlorez-CDJ STAFFJonathan Massell of the firm Nexsen Pruet explained how a “recent holding by the North Carolina Court of Appeals is threatening to render many long-term express warranties ineffective,” in the online publication Lexology.
In Christie v. Hartley Construction, Inc., “the court held that the six-year North Carolina statute of repose for improvements to real property trumps the bargained-for duration terms of an express warranty.” In the Christie case, this meant that even though the homeowners had a twenty year warranty, because of the statute of repose, the warranty effectively expired after six years.
Massell stated to “be mindful of jurisdiction.” If the express warranty is in a state other than North Carolina, it’s possible that the claim could be filed in that state instead of North Carolina. For instance, according to Massell, South Carolina’s “statue of repose does not expire until eight years after the date of substantial completion for an improvement to real property.” Furthermore, “long-term warranties are not trumped by the South Carolina statute of repose.”
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Fifth Circuit Decision on Number of Occurrences Underscores Need to Carefully Tailor Your Insurance Program
December 19, 2018 —
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogThe Fifth Circuit in Evanston Insurance Co. v. Mid-Continent Casualty Co. recently held that multiple collisions caused by the same insured driver over a span of 10 minutes constitute a single occurrence subject to a $1 million limit in the insured’s primary policy with Mid-Continent. The holding reversed a lower court’s ruling that Mid-Continent is liable for an additional sum the excess insurer, Evanston, paid to resolve all of the claims arising from the collisions. At issue, a fundamental question about causation and coverage under commercial liability insurance.
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Michael S. Levine, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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In Florida, Exculpatory Clauses Do Not Need Express Language Referring to the Exculpated Party's Negligence
October 02, 2015 —
Edward Jaeger & William Doerler – White and Williams LLPIn Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective.
Background
Give Kids the World, Inc. (“GKW”) is a non-profit organization that provides free vacations to seriously ill children and their families at GKW’s resort village. To use the resort, vacationers have to fill out an application. Stacy and Eric Sanislo filled out an application to bring their seriously ill child to the village for a vacation and GKW accepted their application. Upon arriving at the resort, the Sanislos filled out a liability release form.
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Edward Jaeger, White and Williams LLP and
William Doerler, White and Williams LLP
Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com
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Insureds' Summary Judgment Motion on Mold Limitation Denied
November 10, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe insureds' motion for partial summary judgment on the applicability of the homeowner's mold limitation was denied. R.W.& R. v. Liberty Mutual Fire Ins. Co., 2016 U.S.Dist. LEXIS 131586 (W.D. Wash. Sept. 26, 2016).
The policy imposed a $5,000 limit on losses caused by mold. Plaintiffs discovered that their dishwasher was leaking and reported the loss to Liberty. Liberty's contractor concluded that the bottom of the dishwasher had rusted out, causing water to seep into parts of the kitchen and the laundry/utility room below. The contractor used dehumidifiers to extract moisture from the affected areas and removed damaged cabinetry, drywall and tiling. The contractor discovered mold that it believed predated the dishwasher leak. Although the contractor took steps to remove the mold, its dehumidification efforts exacerbated the problem by dispersing mold spores throughout portions of the house.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com