Claims for Negligence? Duty to Defend Triggered
July 09, 2019 —
Michael S. Levine & Adriana A. Perez - Hunton Andrews KurthOn June 17, 2019, the First Circuit held that an insurer’s duty to defend was triggered because the underlying complaint set forth claims that required a showing of intent as well as claims that sought recovery for conduct that “fits comfortably within the definition of an ‘accident.’” In Zurich American Ins. Co v. Electricity Maine, LLC, Zurich sought declaratory judgment that, under a D&O policy, it had no duty to defend the insured, Electricity Maine, an electrical utility company being sued in the underlying class action. Zurich argued it had no duty to defend because the underlying complaint failed to allege that Electricity Maine engaged in conduct that qualified as an “occurrence” or that caused “bodily injury” under the terms of the policy. The First Circuit disagreed.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Adriana A. Perez, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Perez may be contacted at aperez@HuntonAK.com
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Best Lawyers Honors 43 Lewis Brisbois Attorneys, Recognizes Three Partners as 'Lawyers of The Year'
September 14, 2020 —
Lewis BrisboisBest Lawyers has selected 43 Lewis Brisbois attorneys across 25 offices for inclusion in its list of 2021 Best Lawyers in America. It has also recognized three Lewis Brisbois partners as "Lawyers of the Year": Los Angeles Partner Jon P. Kardassakis (Mass Tort Litigation / Class Actions - Defendants); Roanoke Partner Paul C. Kuhnel (Medical Malpractice Law - Defendants); and Northwest Indiana Managing Partner Renee J. Mortimer (Personal Injury Litigation - Defendants).
Please join us in congratulating these three partners and the following attorneys on their Best Lawyers recognition.
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Lewis Brisbois
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Sinking Buildings on the Rise?
July 01, 2019 —
Jason M. Adams - Gibbs GidenBy now everyone in the construction and insurance industries is familiar with the 58-story Millennium Tower building in San Francisco that has sunk 17 inches and tilted another 14 inches to the northwest. Another recent New York lawsuit alleges that a 58-story luxury Manhattan condo high-rise is also sinking and causing significant damage. With construction booming in the Southeast and other areas with questionable soils, sinking building cases may be on the rise. Given this reality, the issue of subsidence should be of paramount importance to every construction and insurance professional when insuring a project.
Most insurance carriers will include a subsidence and/or other earth movement exclusion on a commercial general liability ("CGL") quote for insurance as a matter of course. Construction professionals (owners/developers, general contractors, and subcontractors) or their brokers may be under the mistaken impression that they have no choice but to accept these subsidence exclusions as part of a standard construction policy. This is not the case. To the contrary, most insurance carriers are willing to remove subsidence exclusions if the underwriters are provided with acceptable geotechnical/soils reports when considering the project.
The insured construction professional often pushes back on the insurance carrier's request for soils reports because the insured sees the request as an unnecessary hassle, expense or unwelcome interference in the job. However, the carrier's soils review is designed to benefit everyone. If potential soils issues are discovered during the underwriting process they can be addressed at the outset of the project rather than after the project is built, which will typically cost substantially more to remedy. Moreover, a thorough analysis of the condition of the soils at the outset of the project allows the risk management team to recognize any potential issues and ensure that the proper coverage is obtained in order to provide protection down the road. Even if the insurance carrier charges more money to sign off on questionable soils after a review of the reports, the slight increase in premium is likely a worthwhile investment in the event of a subsidence loss.
The lesson is that the insured should not blindly accept a subsidence exclusion and should negotiate its removal. The insured should provide its broker and the insurance carrier the information they need in order to make a fully-informed decision as it pertains to the soils. Once the insurance carrier has had the opportunity to review and sign off on the condition of the soil, the carrier should feel comfortable enough to remove any subsidence exclusions or other similar earth movement limitations.
Subsidence is a relatively straightforward issue to deal with as long as the project team’s lawyers, brokers, risk managers and insurance company underwriters are working together toward the common goal of properly evaluating the risk and adequately insuring the project. This simple cooperative process between the entire risk management team could mean the difference between being covered or not covered in the event of a loss related to earth movement.
Jason M. Adams, Esq. is Senior Counsel at Gibbs Giden representing construction professionals (owners/developers, contractors, architects, etc.) in the areas of Construction Law, Insurance Law and Risk Management, Common Interest Community Law (HOA) and Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms. Mr. Adams can be reached at jadams@gibbsgiden.com.
The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. The transmission of information by email, or any transmission or exchange of information over the Internet, or by any of the included links is not intended to create and does not constitute an attorney-client relationship. This publication may not be reproduced or used in whole or in part without written consent of the author. Copyright 2019 ©
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State Supreme Court Cases Highlight Importance of Wording in Earth Movement Exclusions
June 21, 2017 —
Hannah E. Austin - Saxe Doernberger & Vita, P.C.In Erie Insurance Property and Casualty Company v. Chaber, the West Virginia Supreme Court recently
held that an insurance policy’s earth movement exclusion was unambiguous and applied to both manmade
and natural earth movement. The Court also found that a narrow “ensuing loss” exception to the exclusion
that provided coverage for glass breakage resulting from earth movement could not be extended to cover the
entire loss.
The Erie Insurance Property and Casualty Company (Erie) insured five commercial buildings owned by
Dmitri and Mary Chaber. One of the properties was damaged by a landslide, and the Chabers filed a claim
with Erie. Erie asserted that the loss was excluded from coverage because the policy excluded coverage for
losses caused by earth movement, which was defined to include earthquakes, landslides, subsidence of
manmade mines, and earth sinking (aside from sinkhole collapse), rising or shifting. The exclusion stated
that it applied “regardless of whether any of the above . . . is caused by an act of nature or is otherwise
caused,” and also contained an anti-concurrent causation clause. However, there was an exception for glass
breakage caused by earth movement.
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Hannah E. Austin, Saxe Doernberger & Vita, P.C.Ms. Austin may be contacted at
hea@sdvlaw.com
The EEOC Targets Construction Industry For Heightened Enforcement
May 15, 2023 —
Meghan Douris & Andrew Scroggins - The Construction SeytSeyfarth Synopsis: On January 10, 2023, the Equal Employment Opportunity Commission (EEOC) released for public comment its
draft 2023-2027 Strategic Enforcement Plan (“SEP”)—a document that will guide the Commission’s enforcement priorities for the next five years. The EEOC’s prior Strategic Plan described how it would pursue its enforcement goals. (See our earlier blog on the Strategic Plan
here). The Strategic Enforcement Plan, on the other hand, describes what the EEOC’s enforcement priorities will be. Earlier actions by the EEOC suggested that it might be turning its attention to the construction industry. In the SEP, the EEOC makes its intentions explicit, putting the construction industry—and especially those receiving federal funding—squarely in its sights.
History of the SEP
The EEOC’s
first SEP covered Fiscal Years 2013-2016 (the EEOC’s fiscal years begin on October 1) and identified six broad subject-matter priorities. The EEOC’s
second SEP set the course for enforcement priorities for FY2017-2022. The
latest proposed SEP, published in the Federal Register for comment for the first time, provides notable additional details that put the employer community on notice of the Commission’s intentions for FY2023-2027.[
1]
Reprinted courtesy of
Meghan Douris, Seyfarth and
Andrew Scroggins, Seyfarth
Ms. Douris may be contacted at mdouris@seyfarth.com
Mr. Scroggins may be contacted ascroggins@seyfarth.com
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CDJ’s #4 Topic of the Year: KB Home Greater Los Angeles, Inc. v. The Superior Court of Los Angeles County
December 31, 2014 —
Beverley BevenFlorez-CDJ STAFFKB Home, another case that clarified California’s SB 800, was analyzed by Amy Kuo Alexander of Gordon & Rees LLP in her article on “New Developments Related to SB 800.”
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KB Home was also discussed by Cvitanovic and Stefco of Haight Brown & Bonesteel in their article on Burch.
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Expect the Unexpected (Your Design Contracts in a Post-COVID World)
April 18, 2023 —
Melissa Dewey Brumback - Construction Law in North CarolinaHave you adapted your post-COVID practice to better plan for the “unexpected” ? In particular, have you looked at–and revised– your professional services contracts to give yourself a little more breathing room for unaccounted issues that may arise? If not, no time like the present.
Don’t like that saying? How about ” a stitch in time saves nine?” No? Still nothing? What about a picture of something so completely unexpected it shocks you– say, a fireman commuting home, in fire-fighting regalia, on a tricycle? Okay, here you go…
Now that I have your attention– you should make it a practice to regularly review and update your professional services agreements, and you should consider issues such as:
- Does your agreement provide for extra compensation if you have to spend more time or a longer period providing construction administration services for material delays or labor shortages? If not, it should.
- Does your agreement have a well-written “act of God” provision– one that includes pandemic/epidemics as part of the “act of God” conditions in which a term may become void? If not, add it now!
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Melissa Dewey Brumback, Ragsdale LiggettMs. Brumback may be contacted at
mbrumback@rl-law.com
OSHA: What to Expect in 2022
December 20, 2021 —
Stephen E. Irving - Construction ExecutiveCOVID-19 created great upheaval throughout the economy and the legal compliance world as well. The pandemic has been a great disruptor and has brought rules, regulations and related agency guidance that have served to overwhelm even the most conscientious and attentive employer. The welcomed arrival of COVID-19 vaccines, and now the perhaps less welcome OSHA vaccine mandate, simply add to an employer’s compliance burden.
While OSHA is busy attempting to implement its vaccine/testing mandate, it also has numerous other significant matters in the works of which employers in the construction industry should be aware. These include new rule drafting and several national and regional emphasis programs, which illustrate OSHA’s current priorities.
1. The Vaccine Mandate
Pursuant to a directive from President Biden, in October 2021, OSHA issued an emergency temporary standard implementing a mandate for all employers with more than 100 employees. This mandate requires that employees of such employers be vaccinated for COVID-19 or submit to regular testing. OSHA has also expressed interest in issuing a permanent standard and potentially expanding to include smaller employers.
Reprinted courtesy of
Stephen E. Irving, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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