Fairfield Connecticut Building Expert Directory

Pollution Created by Business Does Not Deprive Insured of Coverage

November 26, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court determined that coverage was properly denied under the pollution exclusion of the policies. Headwaters Resources, Inc. v. Illinois Union Ins. Co., 2014 U.S. App. LEXIS 20060 (10th Cir. Oct. 20, 2014). Over 400 residents of Chesapeake, Virginia, filed two lawsuits against the insured, Headwaters, alleged property damage and bodily injury due to pollution generated in connection with the development of a golf course. The complaints alleged that between 2002 and 2007, the defendants used 1.5 million tons of toxic fly ash during construction of a golf course. The insured allegedly transported the fly ash to an open pit adjacent to residential neighborhoods. The chemicals from the fly ash leached into the ground water, damaging the private wells. The fly ash pit also released airborne contaminants that produced a strong smell of ammonia. As a result of the alleged contamination, the property values of plaintiffs' homes depreciated and members of the community faced increased risk of serious bodily injuries caused by exposure to the fly ash. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Emotional Distress Damages Not Distinct from “Annoyance and Discomfort” Damages in Case Arising from 2007 California Wildfires

November 21, 2017 — Kirsten Lee Price & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
Originally published by CDJ on February 16, 2017 In Hensley v. San Diego Gas & Elec. Co., (No. D070259, filed 1/31/17), the California Court of Appeal for the Fourth Appellate District held that emotional distress damages are available on claims for trespass and nuisance as part of “annoyance and discomfort” damages. In Hensley, plaintiffs sustained fire damage to their home and property during the 2007 California wildfires. The Hensleys were forced to evacuate as the fires advanced. Although their home was not completely destroyed, it sustained significant damage and they were not able to return home permanently for nearly two months. Thereafter, the Hensleys filed suit against San Diego Gas and Electric Company (“SDG&E”) asserting causes of action for trespass and nuisance, among others. Mr. Hensley, who had suffered from Crohn’s disease since 1991, further claimed that as a result of the stress from the fire, he experienced a substantial increase in his symptoms and his treating physician opined that “beyond a measure of reasonable medical certainty... the stress created by the 2007 San Diego fires caused an increase of [Mr. Hensley’s] disease activity, necessitating frequent visits, numerous therapies, and at least two surgeries since the incident.” SDGE moved, in limine, to exclude evidence of Mr. Hensley’s asserted emotional distress damages arguing he was not legally entitled to recover them under theories of trespass and nuisance. The trial court agreed and excluded all evidence of such damages. Reprinted courtesy of Kirsten Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Factual Issues Prevent Summary Judgment Determination on Coverage for Additional Insured

May 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Numerous factual issues prevented the court from deciding at the summary judgment stage whether the additional insured was covered for a personal injury claim that happened on a construction site. Paynes Cranes v. Am States Ins. Co., 2014 U.S. Dist. LEXIS 40485 (E.D. N.Y. March 26, 2014). Intermetal Fabricators, Inc. hired Paynes to provide a crane and driver for the construction of a store. A construction worker was injured while working with the crane. The injured worker sued several defendants, including Paynes. Intermetal had coverage for the project that included additional insureds. The policy provided, “Any person or organization . . . for whom you [Intermetal] are required by written contract, agreement or permit to provide insurance is an insured, subject to the following additional provisions: a. The contract, agreement or permit must be in effect during the policy period . . . and must have been executed prior to the ‘bodily injury,’ ‘property damage,’ 'person and advertising injury.’” Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Construction Defects as Occurrences, Better Decided in Law than in Courts

December 09, 2011 — CDJ STAFF

Construction defect claims are now occurrences for insurance purposes in four states, Arkansas, Colorado, Hawaii, and South Carolina, yet there are still frustrations for commercial general liability policyholders. Business Insurance describes court decisions on whether construction defect claims are covered as “incongruous,” and this drives up coverage and litigation costs. Construction firms often find they are defending themselves on two fronts, both the construction defect claim and also whether their insurance covers it.

Frank Armstrong, the Senior Vice President and National Director of Construction Claims for Willis North America says that the problem starts with the word “occurrence,” as various state courts have different interpretations of the word. “Certain pieces of it don’t fit well, at lest according to some courts in the country, with coverage for construction defect risks.”

Another insurance executive, Julian Ehlich, the Senior Vice President of Claims for Aon Risk Solutions’ construction services group notes that “jurisdictions differ, so policyholders don’t know what they’re going to get.”

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Roadway Contractor Owed Duty of Care to Driver Injured Outside of Construction Zone

January 04, 2021 — Garret Murai - California Construction Law Blog
For the roadway contractor it appeared to be an open and shut case: Plaintiff car driver was stopped at a standard one-way “reversing lane closure” traffic control in which traffic going in one direction would be stopped while traffic going in the other direction was allowed to proceed, and then the procedure would be reversed. Plaintiff, while stopped at the traffic control, was rear-ended by another vehicle driven by George Smithson. Smithson testified that he “must have looked off to the side” at some point prior to the collision because he did not see plaintiff’s vehicle before hitting it. He also testified that the primary reason the accident happened was that he was not paying attention and that he knew of no other cause of the accident. For the roadway contractor you couldn’t ask for a better admission. And it ended in the trial court just the way you thought it would, with a win for the roadway contractor. That is, until it was appealed. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

CGL Policies and the Professional Liabilities Exclusion

August 14, 2018 — David Adelstein - Florida Construction Legal Updates
Commercial general liability (CGL) policies for contractors traditionally contain a professional liabilities exclusion. This exclusion is generally added through a specific endorsement to eliminate coverage for professional services. Read the endorsement The point of the exclusion, in a nutshell, is simply to eliminate a CGL policy for a contractor serving as a professional liability policy. Contractors need to appreciate a professional liabilities exclusion added through endorsement because oftentimes there are delegated design components they are responsible for. Perhaps the contractor value engineered a system and is responsible for engineering and signing and sealing the engineered documents (through its subcontractor) associated with that system. Perhaps there is a performance specification that requires the contractor to engineer a system. Perhaps there is a design-build component. Regardless of the circumstance, this professional liabilities exclusion can certainly come into play, particularly if a defect is raised with the design or professional services associated with the engineered system. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Latin America’s Biggest Corporate Crime Gets a Worthy Epic

January 04, 2021 — Mac Margolis - Bloomberg
As much as pouring cement and building towers, Brazilian construction dynasty Odebrecht was famed for its political panache. “I get down in the mud with the pigs but come out the other side clean in my white suit,” Norberto Odebrecht, founder of the legacy contractor, liked to boast back in the 1970s and 1980s. The catchphrase was shorthand for what became a patently Brazilian way of doing business – the art of buying influence and coming away unsoiled, or at least unincarcerated – among porcine politicians and bribe-truffling officials. In half a century and over three generations, the family firm from northeast Brazil grew into a multinational engineering colossus, hurling up grand public works from the Andes to Angola. Shady pacts with political grifters and bagmen were just part of the deal behind the build-up and seemingly nothing a little Brazilian bonhomie and contract skimming couldn’t tidy up. Until it didn’t. Read the court decision
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Reprinted courtesy of Mac Margolis, Bloomberg
Mr. Margolis may be contacted at mmargolis14@bloomberg.net

Sanctions of $1.6 Million Plus Imposed on Contractor for Fabricating Evidence

March 16, 2017 — Paul R. Cressman, Jr.
King County Superior Court issued sanctions of $1,641,721 in favor of Gefco and against Cascade Drilling, Inc. and its President, Bruce Niermeyer, composed of $1,394,435 in attorneys’ fees and $247,286 in expert fees. [i] Cascade Drilling is a contractor. Gefco manufactures and sells large drilling machinery. The dispute centered around a project that began in 2008. Cascade was hired to drill a water well at a housing development in Wheeler Canyon, California. Cascade used a 50K drilling rig purchased from Gefco. The pump drive shafts on the drilling rig failed four times. After each failure, Cascade ordered a replacement pump drive shaft from Gefco. In September 2008, Cascade ordered drilling equipment for an unrelated drilling rig from Gefco, but did not pay Gefco. Gefco then sued to collect. Cascade admitted not paying, but asserted counterclaims alleging that Gefco was indebted to Cascade for non-conforming and defective goods, including the replacement pump drive shafts purchased from Gefco for the Wheeler Canyon project. Read the court decision
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Reprinted courtesy of Paul R. Cressman, Jr., Ahlers & Cressman PLLC
Mr. Cressman may be contacted at pcressman@ah-lawyers.com

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