Hawaii Supreme Court Tackles "Other Insurance" Issues
February 25, 2014 —
Tred Eyerly – Insurance Law HawaiiResponding to four certified questions from the Ninth Circuit, the Hawaii Supreme Court addressed various issues raised by competing "other insurance" provisions in two CGL policies. Nautilus Ins. Co. v. Lexington Ins. Co., 2014 Haw. LEXIS 59 (Haw. Feb. 13, 2014).
Coverage for a development on Maui was at issue. The developer, VP & PK (ML) LLC, was insured by Lexington. The other insurance provision in Lexington's policy provided it was excess over "any other primary insurance available to you covering liability for damages arising out of the premises . . . for which you have been added as an additional insured."
Kila Kila Construction was one of VP & PK's subcontractors. Kika Kila was not an additional insured under Lexington's policy. Kila Kila had its own CGL policy with Nautilus. The Nautilus other insurance clause stated the insurance was excess over "any other primary insurance available to you covering liability arising out of the premises or operations for which you ahve been added as an additional insured." An endorsement added VP & PK as an additional insured, but only for liability arising out of Kila Kila's negligence.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Second Circuit Finds Potential Ambiguity in Competing “Anti-Concurrent Cause” Provisions in Hurricane Sandy Property Loss
November 28, 2018 —
CDJ STAFFThe Second Circuit recently held that competing “anti-concurrent cause” provisions in a commercial property policy present a potential ambiguity that could result in favor of coverage for losses sustained by Madelaine Chocolate after storm surge from Hurricane Sandy combined to cause substantial damage to Madelaine’s property and a resulting loss of income.
Madelaine was insured under an all-risk insurance policy issued by Chubb subsidiary Great Northern Insurance Company. By endorsement, Madelaine’s policy added “windstorm” as a covered peril and defined “windstorm” as “wind… regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributed in any sequence to, the loss or damage.” The policy also included a common flood exclusion that removed coverage for loss or damage caused by or resulting from waves, tidal water, or tidal waves, or the rising, overflowing, or breaking of any natural harbors, oceans, or any other body of water, whether driven by wind or not. Like the windstorm endorsement, the flood exclusion contained concurrency language that broadened the exclusion to any loss to which flood contributed, regardless of any other cause or event that directly or indirectly contributed to the loss.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Tae Andrews, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Andrews may be contacted at tandrews@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Contractors: Consult Your Insurance Broker Regarding Your CGL Policy
February 15, 2018 —
David Adelstein – Florida Construction Legal UpdatesContractors: do yourself a favor and consult your insurance broker regarding your commercial general liability (CGL) policy. Do this now, especially if you subcontract out work.
CGL policies contain a “your work” exclusion. The CGL policy is written such that it excludes “‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’” This exclusion will be raised in the post-completion latent construction defect scenario. (There are other exclusions that will be raised to a defect discovered during construction.) Certain policies will contain a subcontractor exception to this “your work” exclusion. You WANT this exception- no doubt about it so that this exclusion does not apply to work performed by your subcontractors. Without this subcontractor exception, truth be told, this “your work” exclusion is a total back-breaker to contractors. It will give your insurer an immediate out for many latent defect property scenarios since excluded from coverage is property damage to your work including work performed by your subcontractors.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Thank You Once Again for the Legal Elite Election for 2022
December 18, 2022 —
Christopher G. Hill - Construction Law MusingsThank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 16th consecutive year. The 16 consecutive years of election to the Legal Elite in the Construction Category span my time as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 12 years is most gratifying and only confirms that my decision to “go solo” over 12 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers that were elected along with me, see the
2022 Virginia Business Legal Elite in Construction Law.
So without further ado, thank you to all of you who voted for me. I truly appreciate your continued confidence and support of my construction law practice. Your yearly votes always prod me to learn and continually improve to meet your expectations and keep my practice at this high level. I also couldn’t do this without the great support from friends and family (not to mention clients), so my gratitude goes out to these great folks.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
#5 CDJ Topic: David Belasco v. Gary Loren Wells et al. (2015) B254525
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFChapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Jon A. Turigliatto, and
David A. Napper analyzed the above mentioned Belasco case, in which “the Second District Court of Appeal made clear that settlement agreements containing waviers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld.” Glucksman, et al. explained that “the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.”
Read the full story...
In another article on the subject,
Edward A. Jaeger, Jr. and
William L. Doerler of
White and Williams LLP concluded, “The Court of Appeal’s holding establishes that, despite the prohibition against the release of unknown claims set forth in section 1524 and the protections provided to homeowners by the Right to Repair Act, California homeowners can, in fact, release or waive claims against homebuilders for future, latent construction defects. To release or waive such claims, the language of any settlement agreement should be unequivocal.”
Read the full story...
Read the court decisionRead the full story...Reprinted courtesy of
The NAR asks FAA to Amend their Drone Rules for Real Estate Use
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFHousing Wire reported that the National Association of Realtors (NAR) “is pushing for an exception for Realtors in the current rules on Unmanned Aerial Vehicle (UAV) technology since their motives don’t disrupt safety concerns, according to a letter sent on Tuesday to the FAA.”
According to Housing Wire, the NAR believes that real estate professionals would benefit from UAV technology, more commonly referred to as drones, in a variety of ways, “including, law enforcement, environmental scanning, geographical surveys and disaster recovery assessments.”
The NAR stated, as quoted in Housing Wire, “Use of UAV technology by the real estate industry is simple compared to other applications such as land surveying or law enforcement. The use of UAV technology would be limited in scope to the property itself. Properly written regulation would permit the use of UAV technology within the real estate industry, while maintaining safety in the NAS and privacy of citizens.”
Read the court decisionRead the full story...Reprinted courtesy of
Honoring Veterans Under Our Roof & Across the World
November 15, 2017 —
Newmeyer & Dillion, LLPNovember 11, 2017 - In honor of Veterans Day, we would like to take time to acknowledge, honor and thank those who have served in the United States Armed Forces. We are also proud to recognize eleven of our own who have served our great country.
Ben Ammerman – United States Navy
Philip Kopp – United States Air Force
Ryan Manning – United States Marine Corps
Jason Morris – United States Marine Corps
Tyson Nakagawa - United States Marine Corps
Richard Protzmann - United States Marine Corps
Francis Quinlan - United States Marine Corps
Louis “Dutch” Schotemeyer - United States Marine Corps
Christina Soto-Maynez – United States Army
Michael Studenka - United States Marine Corps
Paul Tetzloff - United States Marine Corps
About Us
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
Read the court decisionRead the full story...Reprinted courtesy of
“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties
September 30, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA).
When dealing with claims involving construction projects, there may exist multiple contracts between various parties that contain waivers of subrogation. The enforceability of such waivers can be limited by several factors, including the jurisdiction of the loss, the language of the waiver and the parties to the contract.
In Gables Construction, Upper Rock, Inc. (Upper Rock), the owner, contracted with a general contractor, Gables Construction (GCI) (hereinafter referred to as the “prime contract”), to construct an apartment complex. After someone stole a bobcat tractor from the jobsite, Gables Residential Services Incorporated (GRSI), GCI’s parent company, signed a vendor services agreement (VSA) with Red Coats to provide a fire watch and other security services for the project.
Read the court decisionRead the full story...Reprinted courtesy of
Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
