FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurers' Communications Through Brokers Not Privileged

April 20, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The court granted the insured's motion to compel documents withheld for privilege by the insurers. Certain Underwriters at Lloyd's v. Amtrack, 2016 U.S. Dist. LEXIS 27041(E.D. N.Y. Feb. 19, 2016). Plaintiffs were insurers who did business in the London Insurance Market and who issued one or more liability policies issued to Amtrak. Amtrak demanded coverage under the policies for alleged environmental contamination and/or asbestos exposure. Coverage was denied and the insurers filed for a declaratory judgment. 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

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Hunton Insurance Recovery Lawyers Ranked by Chambers as Top Insurance Practitioners

May 27, 2019 — Michael S. Levine - Hunton Andrews Kurth
Hunton Andrews Kurth insurance recovery partner, Lorie Masters, received a top “Band 1” ranking by Chambers and Partners in the Insurance: Policyholder category for the District of Columbia, and a “Band 2” ranking in the Insurance: Dispute Resolution: Policyholder – USA – Nationwide category. Hunton Andrews Kurth insurance recovery associate, Andrea DeField, also was recognized by Chambers in the Associate to Watch: Insurance: Florida category. Read the court decision
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Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com

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Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals

December 11, 2023 — Jason Taylor & Danielle K. Kegley - Traub Lieberman
In this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor of the Carrier in a coverage lawsuit. The coverage lawsuit involved a priority dispute between the Carrier and another insurer over which company’s policy had responsibility to cover the defense of their mutual insured, a heating and cooling contractor (the “Insured”) in an underlying lawsuit alleging carbon monoxide poisoning. The Carrier issued a contractor’s pollution liability policy and the other insurer issued a commercial general liability policy to the Insurer. Both the Carrier and the other insurer filed cross-motions for summary disposition in the trial court on the priority of coverage issue. The trial court granted the Client’s motion, holding that the CGL carrier was the primary insurer based on the language in the policies’ “other insurance” clauses. The trial court rejected the CGL carrier’s argument to apply the “total policy insuring intent” or “closest to the risk” tests—tests which Michigan courts have not adopted. Specifically, the court rejected the CGL carrier’s argument that the Client’s contractor’s pollution liability policy was more specifically tailored to the loss in the underlying lawsuit. The trial court also rejected CGL carrier’s alternative argument that the “other insurance” clauses in the policies were irreconcilable, requiring a pro rata allocation based on the respective limits of the policies. Reprinted courtesy of Jason Taylor, Traub Lieberman and Danielle K. Kegley, Traub Lieberman Mr. Taylor may be contacted at jtaylor@tlsslaw.com Ms. Kegley may be contacted at dkegley@tlsslaw.com Read the court decision
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Three Steps to a Safer Jobsite

January 18, 2021 — Deb Hilmerson - Construction Executive
Creating a conscious and robust safety culture is essential to the bottom line. A history of, and reputation for, stringent safety protocols will help contractors win more bids and reduce potential exposure to costly fines. According to OSHA, one out of every five worker deaths is construction-related. Non-fatal construction-related injuries are rising. Now is not the time to be complacent, even for contractors with a clean, or relatively clean, safety record. Situations are changing and, in some cases, better, safer and more efficient options are becoming available. There are three areas of concern that deserve construction executives’ close attention. Safety Glasses or Face Shield Concerns in the Wake of COVID-19 Facial and eye injuries can occur any time a worker is nailing, cutting, grinding, welding, working with concrete or handling hazardous chemicals. Now with COVID-19 protocols requiring face coverings, there is an unanticipated aggravation: fogged safety glasses. Reprinted courtesy of Deb Hilmerson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Montana Significantly Revises Its Product Liability Laws

May 22, 2023 — William L. Doerler - The Subrogation Strategist
On May 4, 2023, Montana changed its product liability laws when the Governor signed SB 216, which was effective upon passage and applies to claims that accrue on or after May 4, 2023. Among the changes is the adoption of a sealed container defense and the application of comparative negligence principles in strict liability actions. Montana also adopted a defense based on certain actions not being brought within 10 years. In addition, Montana adopted a rebuttable presumption with respect to a product’s defective condition. A jury must be informed about this rebuttable presumption with respect to certain warnings claims, premarket licensing procedures or claims involving drugs and/or medical devices. The changes to the Montana Code are further described below.

• In situations where there are multiple defendants, a defendant in a strict liability or breach of warranty action may now assert, as a defense, that the damages of the claimant were caused in full or in part by a person with whom the claimant has settled or released from liability. See MCA § 27-1-703(6)(a) (as revised). Comparative negligence or fault defenses are also available in actions against sellers, even where there are not multiple defendants. See MCA § 27-1-719(4)(e) (discussing a seller’s defenses in situations other than multiple defendant situations) (as revised).

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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Overruling Henkel, California Supreme Court Validates Assignment of Policies

October 02, 2015 — Tred R. Eyerly – Insurance Law Hawaii
In a major ruling, the California Supreme Court applied a statutory provision to overrule its prior decision in Henkel Corp. v. Hartford Accident & Indemn. Co., 29 Cal. 4th 934 (2003) and ruled that liability policies can be assigned despite non-assignment provisions. See Fluor Corp. v. Superior Court, 2015 Cal. LEXIS 5631 (Cal. Aug. 20, 2015). The Hawaii Supreme Court relied on Henkel when it also found anti-consent provisions valid. See Del Monte Fresh Fresh Produce (Hawaii), Inc. v. Fireman's Fund Ins. Co., 117 Haw. 357, 183 P.3d 734 (2007) [see posts here and here]. For decades, Fluor Corporation performed engineering, procurement, and construction (EPC) operations through various corporate entities and subsidiaries. Beginning in 1971, Hartford issued up to 11 CGL policies to Fluor from 1971 to 1986. Each policy contained a consent-to-assignment clause reading: "Assignment of interest under the policy shall not bind the Company until its consent is endorsed hereon." Beginning in the mid-1980s, Fluor Corporation was sued in numerous lawsuits claiming personal injury from asbestos exposure. Fluor Corporation tendered the early lawsuits to Hartford, which accepted the defense. Fluor Corporation subsequently went through a reverse spinoff under which a newly formed subsidiary, Fluor 2, took over the continuation of the company's EPC businesses. The original Fluor transferred all of its EPC-related assets and liabilities to Fluor-2, making Fluor-2 the parent of the EPC subsidiaries. The transaction did not except any insurance rights from the transfer of "any and all" assets. 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

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Wendel Rosen Construction Attorneys Recognized by Super Lawyers and Best Lawyers

August 30, 2017 — Wendel Rosen Black & Dean LLP - California Construction Law Blog
Two members of Wendel Rosen’s Construction Practice Group were recognized recently. Garret Murai was selected for inclusion in the 2017 list of Northern California Super Lawyers and Matthew Graham was selected for inclusion in The Best Lawyers in America© 2018 edition. Garret Is co-chair of the firm’s Construction Practice Group and Matt is a 30+ year veteran of construction law. Read the court decision
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Arizona Court Affirms Homeowners’ Association’s Right to Sue Over Construction Defects

October 15, 2024 — Melissa Kenney - White and Williams LLP
In Gallery Community Association v. K. Hovnanian at Gallery LLC, No. 1 CA-CV 23-0375, 2024 Ariz. App. Unpub. LEXIS 696 (Ct. App.), the Court of Appeals of Arizona (Court of Appeals) discussed whether a homeowners’ association can file an action for breach of the implied warranty of workmanship and habitability arising from construction defects. At issue was whether the implied warranty extended to the areas within the community that the association maintained, including the common areas. The Court of Appeals held that homeowners’ associations can sue builder-vendors for breach of the implied warranty arising from construction defects. In this case, a homeowners’ association, responsible for managing and maintaining a community of townhomes, sued the developer/builder for alleged construction defects in the common area and exteriors of homes that the association maintained for the homeowners in the community. The alleged defects included the pool cabana and staircase walls in the common areas and the exterior walls, roofs, and staircases on the separately owned townhomes in the community. The builder filed a motion for summary judgment, arguing that the implied warranty extended to dwelling actions initiated by homeowners – not homeowners’ associations – and that the alleged construction defects at issue were not related to a dwelling. The trial court granted the motion. The Court of Appeals vacated the trial court’s grant of summary judgment and remanded for further proceedings. In reaching its decision, the Court of Appeals determined that both common law and statutory law authorized the homeowners’ association’s breach of implied warranty claim. Read the court decision
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Reprinted courtesy of Melissa Kenney, White and Williams
Ms. Kenney may be contacted at kenneyme@whiteandwilliams.com

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