Fairfield Connecticut Building Expert Directory

Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty to Defend

February 14, 2023 — Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery Blog
In First Mercury Insurance Co. v. First Florida Building Corp., et al., a federal district court ordered that an insurer had a duty to defend its insured against an underlying personal injury lawsuit. 2023 WL 23116, at *1 (M.D. Fla. Jan. 3, 2023). First Mercury is a cautionary tale about how insurers may try to circumvent their obligations by improperly considering extrinsic evidence when determining whether they have a duty to defend their insureds. First Mercury is a coverage dispute over an underlying personal injury lawsuit that was filed against the insured, a construction company, for injuries the claimant allegedly sustained at a construction site. Id. The claimant alleged that he was at the construction site as an invitee who was “working with” the insured. Id. The insurer agreed to defend the insured against the personal injury lawsuit under a reservation of rights. Id. However, the insurer filed a coverage action seeking a declaration that coverage for the personal injury lawsuit was excluded under the policy. Id. Specifically, the insurer, on summary judgment, argued that the claimant was an employee of the insured who was injured in the course of his employment, thus falling within the employer’s liability and workers’ compensation exclusions in the policy. Id. Although the insurer acknowledged that the personal injury complaint against the insured triggered its duty to defend under the policy, the insurer argued that those exclusions relieved its duty to defend or indemnify the insured. Id. Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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A Trivial Case

November 07, 2022 — Garret Murai - California Construction Law Blog
Construction defect cases leading to physical injury are rarely trivial, at least in the eyes of the injured party, but alas sometimes they are as the next case, Nunez v. City of Redondo Beach, 81 Cal.App.5th 749 (2022), demonstrates. The Nunez Case Monica Nunez, Vice President of Finance and Accounting at a restaurant chain and a part-time fitness instructor at a gym, tripped and fell on a public sidewalk in Redondo Beach. Ms. Nunez, who was in her forties, tripped following a group run when her back foot hit a sidewalk slab that was elevated at its highest point approximately 11/16 inches. Ms. Nunez landed on her left knee and right arm and in the process fractured her kneecap and elbow. Ms. Nunez sued the City of Redondo Beach for her injuries alleging causes of action for dangerous conditions on public property under Government Code section 835, nuisance under Government Code section 815.2, and failure to perform a mandatory duty under Government Code section 815.6. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Court Upholds Plan to Eliminate Vehicles from Balboa Park Complex

June 10, 2015 — Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In Save Our Heritage Organisation v. City of San Diego, et al. (No. D063992, filed 5/28/15), the California Court of Appeal for the Fourth Appellate District upheld a controversial plan to eliminate vehicles from various plazas in historic Balboa Park. In reaching its decision, the Court of Appeal considered a question of first impression involving the interpretation of San Diego Municipal Code section 126.0504. Balboa Park, designated a National Historic Landmark in 1940, is a large urban park in the center of San Diego. The City of San Diego (“City”) recently approved a proposed plan (“Project”) to eliminate vehicles from the plazas within the Balboa Park complex and to return the plazas to purely pedestrian zones. Subsequently, a community group named Save Our Heritage Organisation (“SOHO”) filed a petition for a writ of mandate alleging, among other things, the City erroneously approved the Project. SOHO contended Municipal Code section 126.0504 mandated two key findings be made before the Project could be approved: (1) that the intended purpose of the property would not be adversely affected; and (2) without the proposed project, the property would not be put to a “reasonable beneficial use.” SOHO argued that although the City made the requisite findings, those findings lacked substantial evidentiary support. The trial court agreed with SOHO and directed the City to rescind the site development permit. The City argued on appeal that Municipal Code section 126.0504 vested it with “discretion to make a qualitative determination of whether an existing use of the property, even if deemed beneficial, is also a reasonable use of that property under all of the facts and circumstances applicable to the particular property in question.” The Court of Appeal agreed and reversed. Reprinted courtesy of Kristen Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, 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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Google Advances Green Goal With AES Deal for Carbon-Free Power

May 17, 2021 — Mark Chediak - Bloomberg
Google’s moving forward with its goal of becoming carbon-free by the end of the decade after AES Corp. agreed to supply the tech giant with renewable energy to power its data centers in Virginia. AES, an international electricity company and power-plant developer, said the deal will result in the construction of 500 megawatts of solar, wind, small-scale hydroelectric and battery storage projects and supply will begin later this year, according to a statement Tuesday. AES and third-party developers will own the facilities. Read the court decision
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Reprinted courtesy of Mark Chediak, Bloomberg

Accident/Occurrence Requirement Does not Preclude Coverage for Vicarious Liability or Negligent Supervision

June 06, 2018 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel, LLP
In Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc. (No. S236765, filed 6/4/18) (L&M), the California Supreme Court ruled that the liability insurance requirement that injury be caused by an “occurrence,” defined as an “accident,” does not preclude coverage of an employer’s independent tort liability for injury deliberately caused by its employee. In L&M, Liberty insured a construction company that contracted to manage a construction project at a middle school in San Bernardino, California. A 13-year-old student subsequently sued the company in state court, alleging that she had been sexually molested by a company employee, Hecht. Among others, she alleged a cause of action for negligent hiring, retention and supervision of the employee. The construction company tendered to Liberty, which defended the employer under a reservation of rights while seeking declaratory relief in federal court. The district court granted summary judgment for Liberty, ruling that the injury was not caused by an “occurrence.” On appeal, the 9th Circuit Court of Appeals certified the question to the California Supreme Court as a matter of state law. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Court Rules that Damage From Squatter’s Fire is Not Excluded as Vandalism or Malicious Mischief

April 15, 2015 — Valerie A. Moore, Christopher Kendrick, and Colin T. Murphy – Haight Brown & Bonesteel LLP
In Ong v. Fire Insurance Exchange (No. B252773, filed 4/3/15), a California appeals court ruled that a vacancy exclusion limited to damage caused by “vandalism or malicious mischief” did not bar coverage for damage to a vacant property caused by a warming fire purposely started by a transient that got out of control and spread to other parts of the property. In Ong, the insured’s rental premises had been vacated by tenants and the utilities turned off. Nearly two years later, the insured submitted a claim for fire damage that had just occurred. An investigator reported finding signs that a squatter had been living in the building, stating that: “[I]t appears the fire may have been initiated as the result of an uncontrolled warming fire started by an unauthorized inhabitant.” The investigator found firewood and a mattress, and concluded that holes burned in the floor were the result of the squatter attempting to throw burning wood out the door when the fire got out of control. The policy excluded vandalism as follows: “We do not cover direct or indirect loss from: . . . 4. Vandalism or Malicious Mischief, breakage of glass and safety glazing materials if the dwelling has been vacant for more than 30 consecutive days . . . just before the loss. A dwelling under construction is not considered vacant.” The term “Vandalism” was not defined in the policy. The insurer denied coverage based on the exclusion, stating: “Our investigation indicates that this loss was the result of vandalism. A trespasser entered the vacant dwelling and intentionally set a fire on the kitchen floor.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Valerie A. Moore, Christopher Kendrick and Colin T. Murphy Ms. Moore may be contacted at vmoore@hbblaw.com. Mr. Kendrick may be contacted at ckendrick@hbblaw.com Mr. Murphy may be contacted at cmurphy@hbblaw.com Read the court decision
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Bert Hummel Appointed Vice Chair of State Bar of Georgia Bench & Bar Committee

October 24, 2021 — Bert Hummel - Lewis Brisbois
Atlanta, Ga. (October 4, 2021) – Atlanta Partner Bert Hummel was recently named Vice Chair of the State Bar of Georgia's Bench & Bar Committee for the 2021-2022 year. The Bench & Bar Committee identifies and facilitates solutions to issues of mutual interest between State judges and Georgia lawyers for the benefit of the bench, the bar and the public. It also oversees the annual Justice Thomas O. Marshall Professionalism Award, which honors one lawyer and one judge who have demonstrated the highest professional conduct and paramount reputation for professionalism. Read the court decision
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Reprinted courtesy of Bert Hummel, Lewis Brisbois
Mr. Hummel may be contacted at Bert.Hummel@lewisbrisbois.com

Judge Dismisses Suit to Block Construction of Obama Center

April 04, 2022 — The Associated Press - Bloomberg
Chicago (AP) -- A federal judge has dismissed a lawsuit that sought to prevent the construction of the Obama Presidential Center in a park on Chicago's South Side. In a ruling issued Tuesday, U.S. District Judge Robert Blakey rejected the contention by the group Protect Our Parks that the city's park district improperly gave control of the land in Jackson Park to former President Barack Obama's foundation in violation of the public trust. The city, Blakey wrote, “did not abdicate control or ownership of the OPC site to the Obama Foundation.” Citing the state law that governs museums, the judge wrote that the Obama Center will ”confer a public benefit because they ’serve valuable public purposes, including ... furthering human knowledge and understanding, educating and inspiring the public, and expanding recreational and cultural resources and opportunities.” Read the court decision
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Reprinted courtesy of Bloomberg

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