Fairfield Connecticut Building Expert Directory

Insured Versus Insured Clause Does Not Bar Coverage

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Fifth Circuit considered whether coverage was barred under the policy's insured versus insured provision. Kinsale Ins. Co. v. Georgia-Pacific, L.L.C., 2015 U.S. App. LEXIS 12976 (5th Cir. July 27, 2015). Georgia-Pacific hired Advanced Services, Inc. for demolition work at Georgia-Pacific's idled plywood plant. A fire occurred at the plant, damaging equipment Advanced had leased from H&E Equipment for the demolition work. Several lawsuits followed. One was brought by H&E against Advanced. Advanced filed a third-party demand for indemnification against Georgia-Pacific for any damages Advanced was required to pay H&E. 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

Public Contract Code Section 1104 Does Not Apply to Claims of Implied Breach of Warranty of Correctness of Plans and Specifications

October 30, 2023 — Garret Murai - California Construction Law Blog
It’s the classic tale of two cities. One city is occupied by architects and engineers. The other, by contractors. And while the cities typically co-exist relatively peacefully together, at times, they do not, such as when a defect arises that can either be a design or construction defect. Sometimes, project owners are pulled into these fights as well. There is a common law rule that when contracting with a contractor the owner impliedly warrants to the contractor that the plans and specifications are sufficiently accurate and correct. And, if you work on local public works projects, you may be familiar with Public Contract Code section 1104 which provides that, with the exception of design-build projects, local public entities cannot require a bidder to assume responsibility for the completeness and accuracy of architectural or engineering plans and specifications. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Contractor Covered for Voluntary Remediation Efforts in Completed Homes

October 10, 2013 — Tred Eyerly — Insurance Law Hawaii
The Texas Supreme Court held that a home builder was covered for the voluntary removal and replacement of a defective insulation product it had installed in hundreds of homes. Lennar Corp. v. Market Am. Ins. Co., 2013 Tex. LEXIS 597 (Tex. Sup. Ct. Aug. 23, 2013). Lennar built homes using an exterior insulation and finish system (EIFS). It was subsequently determined that EIFS trapped water inside homes with wood-frame walls, causing rot and structural damage, mildew and mold, and termite infestation. Lennar decided to contact all its homeowners and offer to remove the EIFS and replace it with conventional stucco. Lennar notified its insurers that it would seek indemnification for the costs. The insurers refused to participate in Lennar's proactive efforts, preferring to wait and respond to homeowners' claims one by one. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

California Expands on Scope of Coverage for Soft Cost Claims

February 14, 2023 — Caitlin N. Rabiyan - Saxe Doernberger & Vita, P.C.
The California federal district court case of KB Home v. Illinois Union Insurance Co., No. 8:20-cv-00278-JLS-JDE, (C.D. Cal. August 23, 2022), provides much needed guidance for cases involving builder's risk insurance claims for soft cost coverage. The case stems from damage to several of KB Home’s residential building sites caused by a severe rainstorm in January 2017. Each home site was a smaller part of a large housing development project. The damage caused significant delay in the completion of some individual home sites, although there was limited evidence of delay to the overall housing development project. As a result, KB Home sought coverage under a builder’s risk policy purchased from Illinois Union for both hard costs and soft costs. “Hard costs” are the costs directly associated with repairing property damage to the sites. Conversely, “soft costs” are indirect expenses associated with project delays caused by such property damage and repair efforts. For example, hard costs would include labor and materials, whereas the soft costs claimed by KB Home included additional real estate taxes, construction loan interest, and advertising and promotional expenses incurred because of the delays. Illinois Union paid the claim for the hard costs, but denied the soft costs claim. KB Home filed suit and Illinois Union eventually filed a motion for summary judgment. Read the court decision
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Reprinted courtesy of Caitlin N. Rabiyan, Saxe Doernberger & Vita, P.C.
Ms. Rabiyan may be contacted at CRabiyan@sdvlaw.com

Dorian Lashes East Canada, Then Weakens Heading Out to Sea

September 16, 2019 — The Associated Press (Rob Gillies) - Bloomberg
The storm that already walloped the Virgin Islands, Bahamas and North Carolina lashed at far-eastern Canada with hurricane-force winds for much of Sunday, knocking out power to hundreds of thousands of people before weakening and heading into the North Atlantic. Dorian had hit near the city of Halifax Saturday afternoon, ripping roofs off apartment buildings, toppling a huge construction crane and uprooting trees. There were no reported deaths in Canada, though the storm was blamed for at least 50 elsewhere along its path. Read the court decision
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Reprinted courtesy of The Associated Press (Rob Gillies), Bloomberg

New Survey Reveals Present-Day Risks of Asbestos Exposure in America - 38% in High-Risk Jobs, 47% Vulnerable through Second-Hand Exposure

April 08, 2024 — The Law Offices of Justinian C. Lane, Esq. - PLLC
AUSTIN, April 04, 2024 (GLOBE NEWSWIRE) -- A recent nationwide survey conducted on the risks of asbestos in America revealed that 38% of respondents have worked in high-risk industries where asbestos was present, while 47% have experienced indirect exposure through family members employed in these high-risk environments. The survey results reflect the fact that, despite the EPA's recent ban on ongoing uses of chrysotile asbestos, the threat of exposure still looms large in the US, underscoring the urgent need for continued vigilance and action to safeguard public health. Compounding the concern is the revelation that only 8% of Americans undergo regular testing. These findings, released today, underscore the urgent necessity for Asbestos Cancer Risk Awareness and routine testing. They emphasize the crucial importance of proactive measures to mitigate the pervasive risks associated with asbestos exposure in the United States. The study was conducted by Researchscape on behalf of The Law Offices of Justinian C. Lane, Esq. - PLLC, a leading firm advocating for testing and compensation for individuals exposed to asbestos on the job and their families who are at risk due to second-hand exposure. According to the survey, 86% of respondents have never undergone any testing for asbestos exposure, while a mere 8% are tested regularly. The lack of testing is particularly concerning among the Gen X demographic who could be at risk due to secondhand exposure from a family member who worked with asbestos when it was still prevalent, with 92% reporting no testing, highlighting the potential risks associated with secondhand exposure. Read the court decision
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Reprinted courtesy of

Ninth Circuit Affirms Duty to Defend CERCLA Section 104 (e) Letter

October 10, 2013 — Tred Eyerly — Insurance Law Hawaii
The Ninth Circuit held there is a duty to defend not only a PRP letter issued by the EPA, but also a section 104 (e) letter. Anderson Brothers, Inc. v. St. Paul Fire and Marine Ins. Co., 2013 U.S. App. LEXIS 18156 (9th Cir. Aug. 30, 2013). The insured received two letters from the EPA notifying it of potential liability under CERCLA for environmental contamination of the Portland Harbor Superfund Site. The first letter was received in January 2008, and stated that the EPA sought the insured's cooperation in its investigation of the release of hazardous substances at the site. The letter enclosed an extensive, 82-question "Information Request" seeking information about the insured's current and former activities at the site. The letter informed the insured that its voluntary cooperation was sought, but compliance with the Information Request was required by law and failure to respond could result in an enforcement action and civil penalties of $32,500 per day. The insured tendered the 104 (e) letter to St. Paul and requested a defense and indemnity pursuant to the CGL policy. St. Paul declined to provide a defense because the letter did not constitute a "suit," which was required by the policy to trigger the duty to defend. The second letter from the EPA, received in November 2009, was entitled "General Notice Letter for the Portland Superfund Site" and notified the insured that it was a "potentially responsible party ("PRP"). Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

Compliance with Contractual and Jurisdictional Pre-Suit Requirements is Essential to Maximizing Recovery

November 27, 2023 — Michael S. Levine, Geoffrey B. Fehling & Charlotte Leszinske - Hunton Insurance Recovery Blog
Timely notice is an important first step in a successful insurance recovery. But insurance policies are not always straightforward in identifying how, when, and to whom notice must be provided. Some states may also impose additional procedural hurdles, including requiring policyholders to contact their insurers before filing suit (the idea behind this requirement is that it may avoid litigation). Failing to comply with pre-suit requirements can hurt the policyholder’s recovery, as illustrated in a recent decision from the Northern District of Texas. In NewcrestImage Holdings, LLC v. The Travelers Lloyds Insurance Company, No. 2:23-cv-039-BR (N.D. Tex. Oct. 17, 2023), the court considered whether NewcrestImage had forfeited its right to recover attorneys’ fees by failing to give Travelers pre-suit notice. NewcrestImage had filed suit against Travelers to obtain coverage for damage to its hotel property arising out of Winter Storm Uri. In its answer, Travelers asserted that NewcrestImage failed to provide the insurer with pre-suit notice as required under the Texas Insurance Code, and that if NewcrestImage successfully proved it was entitled to coverage, NewcrestImage’s failure to provide pre-suit notice precluded it from recovering attorneys’ fees. Travelers later moved to strike the claim for attorneys’ fees on that basis. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Charlotte Leszinske, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Ms. Leszinske may be contacted at cleszinske@HuntonAK.com Read the court decision
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