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Preview: LexisNexis® Mealey's™ Construction Defects Insurance Legal News

LexisNexis® Mealey's™ Construction Defects Insurance Legal News

Headline Construction Defects Insurance Legal News from LexisNexis®


Panel Finds No Conflict To Support Insured's Right To Independent Counsel
SACRAMENTO, Calif. - Any possible or potential conflict is not legally sufficient to require an insurer to provide independent counsel, a California appeals panel ruled Jan. 22, affirming summary judgment against an additional insured regarding a coverage dispute over defense provided in a construction defect lawsuit (Centex Homes, et al. v. St. Paul Fire and Marine Insurance Co., No. C081266, Calif. App., 3rd Dist., 2018 Cal. App. LEXIS 45).

Insurer Has No Duty To Defend Additional Insured, Federal Judge Concludes
CHARLOTTE, N.C. - Because an underlying lawsuit does not state claims for "personal injury" or "property damage," a North Carolina federal judge ruled Jan. 23 that an insurer has no duty to defend an additional insured (American Reliable Insurance Co. v. Five Brothers Mortgage Company and Securing Inc., No. 16-159, W.D. N.C., 2018 U.S. Dist. LEXIS 10546).

Judge: Insurer Breached Duty To Defend Architect For Subcontractor's Work
MINNEAPOLIS - An insurance company breached its duty to defend an architecture firm from a lawsuit arising from construction defects that resulted from a subcontractor's negligence, a federal judge in Minnesota ruled Jan. 19, holding that the damages were not excluded from coverage under the business risk doctrine and a products-completed operations hazard clause (Westfield Insurance Company v. Miller Architects & Builders Inc., No. 17-400, D. Minn., 2018 U.S. Dist. LEXIS 8539).

Judge: Insurer Does Not Show Earth Movement Exclusion Bars Coverage
SAN FRANCISCO - An insurer failed to establish that an earth movement exclusion or a general contractors warranty endorsement precludes coverage for an underlying construction defect case, a California federal judge ruled Jan. 2 (Everest National Insurance Co. v. Jeffrey Novak General Contractor Inc., No. 16-04814, N.D. Calif., 2018 U.S. Dist. LEXIS 441).

8th Circuit Affirms No Property Damage Triggered Coverage For Defective Bags
ST. LOUIS - The Eighth Circuit U.S. Court of Appeals on Jan. 29 affirmed a lower federal court's ruling in favor of a commercial general liability insurer in a coverage dispute arising from the contamination of landscaping materials with plastic from defective storage bags that were manufactured by the insured (Decker Plastics v. West Bend Mutual Insurance Co., No.17-1319, 8th Cir., 2018 U.S. App. LEXIS 2085).

Louisiana Appeals Court: Contractor's Policy Does Not Cover Property Damage
GRETNA, La. - A Louisiana appeals panel on Dec. 27 affirmed a trial court judge's ruling awarding summary judgment to a contractor's insurance company, finding that a commercial general liability (CGL) issued by the company was not a performance bond that covered a woman's allegations of property damage (Irma Dorsey v. Purvis Contracting Group LLC, et al., No. 17-CA-369, 17-CA-370, La. App., 5th Cir., 2017 La. App. LEXIS 2437).

Federal Judge: Sample Claims Trigger Insurer's Duty To Reimburse Defense Costs
DES MOINES, Iowa - An Iowa federal judge on Jan. 16 once again granted insureds' motion for partial summary judgment in a coverage dispute arising from underlying claims that the insureds' windows were defectively designed, manufactured or installed (Pella Corp., et al. v. Liberty Mutual Insurance Co., No. 11-00273, S.D. Iowa).

11th Circuit Reverses Judgment In Favor Of Insurer In Defects Case
ATLANTA - Based on an answer from Florida's high court, the 11th Circuit U.S. Court of Appeals on Jan. 26 reversed the entry of summary judgment in favor of an insurer, vacated a final judgment and remanded to federal court for further proceedings (Altman Contractors Inc. v. Crum & Forster Specialty Insurance Co., No. 15-12816, 11th Cir., 2018 U.S. App. LEXIS 1957).

Judge Dismisses Insurer's Dispute Over Defense Owed For Construction Defects Cases
ASHEVILLE, N.C. - Citing overlapping issues with an underlying state court declaratory judgment action, a North Carolina federal judge on Jan. 12 dismissed a coverage dispute between commercial general liability insurers with regard to a duty to defend a mutual insured and additional insureds in construction defects cases (Hartford Fire Insurance Co. v. Employers Mutual Casualty Co., et al., No. 17-253, W.D. N.C., 2018 U.S. Dist. LEXIS 5655).

Judge Declines To Dismiss Insurer's Coverage Dispute Over Faulty Workmanship
HARRISBURG, Pa. - A Pennsylvania federal judge on Jan. 11 refused to dismiss for failure to join indispensable parties an insurer's lawsuit seeking a declaration that it has no duty to defend or indemnify an insured in a breach of contract case (Atlantic Casualty Insurance Co. v. Dover Roofing & General Remodeling Exteriors Unlimited Inc., No. 17-228, M.D. Pa., 2018 U.S. Dist. LEXIS 4814).

Insured's Stucco Damage Barred From Coverage, Insurer Says In Federal Court
JACKSONVILLE, Fla. - A commercial general liability insurance policy excludes coverage for an insured's underlying construction defects lawsuits arising out of stucco damage, the insurer says in a Jan. 10 complaint filed in a Florida federal court (Auto-Owners Insurance Co. v. Kis Construction LLC, et al., No. 18-00086, M.D. Fla.).

Insurer Says All Suits Over Defective Stucco Constitute 1 Occurrence
PHILADELPHIA - An insurance company says in a declaratory judgment action filed in Pennsylvania federal court Dec. 21 that nine individual lawsuits accusing a home builder of damages stemming from improperly installed stucco constitute one occurrence that is subject to $1 million in coverage (First Specialty Insurance Company v. Cutler Group Inc., et al., No. 17cv05732, E.D. Pa.).

State Farm Sues Builder, Fire Box Installer For Damage To Couple's Home
JACKSON, Miss. - State Farm Fire and Casualty Co. sued a home builder and the subcontractor that improperly installed firebox and firebox surround in Mississippi federal court on Jan. 2, claiming that the defendants' negligence caused a fire that damaged the home of its insureds (State Farm Fire and Casualty Company v. Structures Fine Homes Inc., et al., No. 18-CV-7, S.D. Miss.).

Insurer Removes $4M Suit Alleging Building Defects Caused Water Intrusion
CHARLESTON, S.C. - Liberty Mutual Insurance Co. says in a Jan. 4 notice of removal that an apartment complex owner's lawsuit that alleges construction defects leading to water intrusion and termite damage have resulted in $4 million in damages belongs in federal court because complete diversity exists between the parties and damages exceed the $75,000 jurisdictional threshold (E.C. Lofts LLC v. Tauer LLC, et al., No. 18-cv-31-RMG, D. S.C.).

Construction Defect Claims: A 2017 Update - Part Two
By Thomas F. Segalla, William J. Edwins, Michael T. Glascott, Michael F. Lettiero and Brandon D. Zeller While decisional authority addressing potential coverage for construction defect claims under Commercial General Liability Policies continues to evolve, many decisions in 2017 relied upon long recognized doctrine to decide contested matters. While such decisions allow the construction industry a reasonable basis to anticipate what might fall within the coverage of their policies, a few decisions offer a reminder to practitioners to monitor developing case law. For example, in New Jersey, a court relied upon the long-recognized "entire controversy doctrine" to hold that it is neither fair nor efficient to fragment a single controversy into separate actions as such fragmentation can harass litigants, delay final adjudication, and waste judicial resources. In a slightly different twist, an Iowa court held that an insurer had an obligation to consider the policy, the complaint, and all relevant facts available to it in deciding whether to defend, but the court added that expert reports available to the insurer were sufficient to place the insurer on notice that the complaint alleged damages within the insuring clause of the policy. Meanwhile, a California Court applied the "but for" test, long recognized as the test in assault and battery matters, to decide that a mold exclusion applied because the case would not have been brought "but for" the mold claim.

Defect Notice May Trigger Insurer's Defense Coverage, Florida High Court Rules
TALLAHASSEE, Fla. - A Florida Statutes Chapter 558 proceeding for resolving construction defect disputes prior to litigation constitutes a "suit" under commercial general liability insurance policies that may trigger a duty to defend provided that an insurer consents to an insured's participation, a majority of the Florida Supreme Court held Dec. 14 (Altman Contractors Inc. v. Crum & Forster Specialty Insurance Co., No. SC16-1420, Fla. Sup., 2017 Fla. LEXIS 2492).

11th Circuit: Insured's Faulty Work Triggered Insurer's Duty To Defend
ATLANTA - Alleged damage to railing post pockets and balcony concrete slabs caused by an insured's faulty workmanship triggered an insurer's duty to defend, the 11th Circuit U.S. Court of Appeals ruled Dec. 28 (Addison Insurance Co. v. 4000 Island Boulevard Condominium Association Inc., et al., No. 17-11504, 11th Cir., 2017 U.S. App. LEXIS 26870).

Insurer Has No Duty On Claims From Sale Of Home With Defects, Judge Finds
BRIDGEPORT, Conn. - An insurer has no duty to defend or to indemnify, based on a homeowners insurance policy or a personal umbrella policy, insureds against claims arising from defects in a home they sold, a Connecticut federal judge ruled Dec. 27 (Allstate Insurance Co. v. Sudha Swaminathan, et al., No. 16-1708, D. Conn., 2017 U.S. Dist. LEXIS 211931).

Texas High Court Denies Rehearing On Insurers' Liability For $2.4M Defects Award
AUSTIN, Texas - The Texas Supreme Court on Dec. 1 refused to rehear petitions to review a lower court's ruling that a trial court erred in finding two commercial general liability insurers are jointly and severally liable for a $2.4 million construction defects arbitration award despite both having a duty to indemnify (Great American Lloyds Insurance Co. and Mid-Continent Casualty Co. v. Vines-Herrin Custom LLC, et al., No. 16-0795, Texas Sup.; 2017 Tex. LEXIS 1089).

5th Circuit: Additional Insured Owed A Defense In Construction Defects Case
NEW ORLEANS - A subcontractor's insurer had a duty to defend an additional insured in a construction defects lawsuit, the Fifth Circuit U.S. Courts of Appeals ruled Dec. 12, affirming in part and reversing in part awards issued in favor of the additional insured (Lyda Swinerton Builders Inc. v. Oklahoma Surety Co., No. 16-20195, 5th Cir., 2017 U.S. App. LEXIS 25048).

Panel: Insurer Had Duty To Defend Additional Insured Against Defects Claims
SALEM, Ore. - An insurer had a duty to defend an additional insured general contractor in an underlying construction defects case, an Oregon appeals panel ruled Dec. 6, reversing a trial court's entry of summary judgment in favor of the insurer (Security National Insurance Co. v. Sunset Presbyterian Church, No. 588, Ore. App., 2017 Ore. App. LEXIS 1501).

California Appeals Panel: Change To Arbitration Terms Means State Farm May Sue
LOS ANGELES - While water damage occurred at an insured's home during a time when the arbitration agreement signed by the insurer and the supply line manufacturer being accused of providing a defective product covered product liability claims, a change to the agreement after the damage and before the insurer filed suit means that the claim is not subject to arbitration, a California appeals panel ruled Nov. 30 (State Farm General Insurance Co. v. Watts Regulator Co., No. B271236, Calif. App., 2nd Dist., Div. 8, 2017 Cal. App. LEXIS 1059).

Judge: Fact Issues Exist On Whether Repairs Fixed Insureds' Sinkhole Losses
TAMPA, Fla. - Genuine issues of material fact remain as to whether repairs resolved sinkhole activity in an insured home, a Florida federal judge ruled Jan. 2, denying summary judgment to an insurer on a breach of contract claim (Gerald Gagliardi, et al. v. Liberty Mutual Fire Insurance Co., No. 16-3354, M.D. Fla., 2018 U.S. Dist. LEXIS 267).

Judge Finds Fact Issues Exist On Whether Foundation Damage Was Covered By Policy
NEW HAVEN, Conn.- A Connecticut federal judge on Dec. 29 refused to grant summary judgment on a breach of contract claim asserted by insureds, finding that genuine issues of fact exist on when damage to a property's foundation occurred, but the judge found no evidence to support their claims for violation of Connecticut law or to show that the insurer acted in bad faith (Raymond G. Gabriel v. Liberty Mutual Fire Insurance Co., No. No. 3:14-cv-01435, D. Conn., 2017 U.S. Dist. LEXIS 213202).

Judge Finds Insurer's Claims Against Subcontractors Did Not Support Default
DENVER - A Colorado federal judge on Dec. 7 refused to enter a default judgment in a breach of contract action filed by an insurer against numerous subcontractors sued in an underlying construction defects case, finding that the court lacked jurisdiction and that the insurer's allegations were conclusory (Association Insurance Co. v. McSwain Metal Fabrication, Inc., et al., No. 17-cv-01550, D. Colo., 2017 U.S. Dist. LEXIS 201678).

Insured Asks 8th Circuit To Find Coverage Exists For Construction Defects Suit
CINCINNATI - A developer and general contractor recently asked the Eighth Circuit U.S. Court of Appeals to reverse a lower federal court's finding that its insurer has no duty to defend it against a homeowners association's claims in an underlying defective construction lawsuit, contending that there was a "rational possibility" that the homeowners association sought damages that were covered by the policy (Clarke Company Limited v. American Family Mutual Insurance Co., No. 17-2418, 8th Cir.).

Judge Finds Product Defect Insurers Entitled To Pre-, Post-Judgment Interest
MINNEAPOLIS - A federal judge in Minnesota on Dec. 6 held that two plaintiff insurance companies are entitled to pre-and post-judgment interest after successfully litigating how much they should contribute to a $6 million settlement of a products liability suit over defective plastic air-intake ducts (National Union Fire Insurance Company of Pittsburgh, et al. v. Donaldson Company Inc., No. 10-4948, D. Minn., 2017 U.S. Dist. LEXIS 201328).

Default Judgment Entered Against Insureds In Mold Damages Coverage Suit
ALEXANDRIA, Va. - A Virginia federal judge on Dec. 15 entered a default judgment against insureds who failed to answer an insurer's complaint after agreeing with a magistrate judge's determination that no coverage is owed for underlying suits alleging that the insureds' decking product developed mold, rot and decay because the policies' exclusions for fungi and bacteria and for damages to "your product" bar coverage (Indiana Lumbermens Mutual Insurance Co. v. Timber Treatment Technologies LLC, et al., No. 16-692, E.D. Va., 2017 U.S. Dist. LEXIS 206868).

No Jurisdiction Under CAFA's 'Mass Action' Provision, Panel Says, Affirms Remand
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on Dec. 14 affirmed a lower federal court's remand of a lawsuit arising from claims over defective water supply lines, finding that 26 insurers, acting as subrogees of 145 insureds, are the only plaintiffs and therefore fail to satisfy the numerosity requirement under the Class Action Fairness Act (CAFA) to retain federal jurisdiction (Liberty Mutual Fire Insurance Co., et al. v. EZ-Flo International, Inc., No. 17-56523, 9th Cir., 2017 U.S. App. LEXIS 25306).

Connecticut Federal Judge: Cracks In Foundation Are Not Sudden And Accidental Loss
BRIDGEPORT, Conn. - No coverage is owed to insureds seeking coverage for cracks discovered in their basement walls and caused by the presence of a mineral used in the concrete because the insureds' loss was not sudden and accidental as required under the policy, a Connecticut federal judge said Nov. 30 (Alan D. Lees, et al. v. Allstate Insurance Co., No. 15-1050, D. Conn., 2017 U.S. Dist. LEXIS 196728).

Judge Denies Reconsideration On Finding That Policy Does Not Bar 'Faulty Construction'
SEATTLE - Noting that exclusionary clauses are to be construed strictly against an insurer, a Washington federal judge on Nov. 28 declined to disturb his ruling granting in part summary judgment to an insured on the basis that an insurance policy does not exclude and, thus, covers the perils "faulty construction," "faulty maintenance" and "wet or dry rot" (Westridge Townhomes Owners Association v. Great American Assurance Co., et al., No. 16-1011, W.D. Wash., 2017 U.S. Dist. LEXIS 195341).

Construction Defect Claims: A 2017 Update - Part One
By Thomas F. Segalla, William J. Edwins, Michael T. Glascott, Michael F. Lettiero and Brandon D. Zeller While decisional authority addressing potential coverage for construction defect claims under commercial general liability policies continues to evolve, many decisions in 2017 relied upon-long recognized doctrine to decide contested matters. While such decisions allow the construction industry a reasonable basis to anticipate what might fall within the coverage of their policies, a few decisions offer a reminder to practitioners to monitor developing case law. For example, a South Carolina court considered a case involving building code violations, structural deficiencies, and significant water-intrusion problems observed shortly after purchasers occupied their newly built condominium units. In the ensuing declaratory judgment action, the insurer alleged it had no duty to indemnify, but the court held that the insurer's reservation of rights letter was inadequate. The court explained that "an insured must be provided sufficient information to understand the reasons the insurer believes the policy may not provide coverage." The court added that "generic denials of coverage coupled with furnishing the insured with a copy of all or most of the policy provisions (through a cut-and-paste method) is not sufficient." The plaintiff's failure to properly reserve prevented the plaintiff from disputing coverage as to actual damages. Similarly, the Florida Supreme Court recently reviewed the following question of law certified by the United States Court of Appeals for the Eleventh Circuit: "Is the notice and repair process set forth in Chapter 558, Florida Statutes, a "suit" within the meaning of the commercial general liability policy issued by C & F to Altman?" The court concluded that "alternative dispute resolution" means "[a] procedure for settling a dispute by means other than litigation" and, therefore, Chapter 558 falls within this definition as a statutorily required pre-suit process intended to encourage a claimant and insured to settle claims for construction defects without resorting to litigation.

S.D. High Court: Professional Services Exclusion Bars Coverage For Surveying Error
PIERRE, S.D. - A designated professional services endorsement excludes all potential insurance coverage for any property damage caused by a land-surveying error, the South Dakota Supreme Court ruled Nov. 8, finding that a trial judge erred in granting summary judgment to a project architect (Western National Mutual Insurance Co. v. TSP Inc., No. 27798, S.D. Sup.).

Insurer Must Cover Damage By Wind, Not Construction Defects, Appeals Panel Says
DETROIT - An insurer is responsible to cover damage from wind-driven rain to condominium units but is not responsible for damage caused by construction defects, a Michigan appeals panel held Nov. 16, reversing summary disposition to the insurer (Walters Beach Condominium Association v. Home-Owners Insurance Co., No. 335172, Mich. App., 2017 Mich. App. LEXIS 1810).

Known Defects Relieve Insurer Of Duty To Pay For Repairs, Panel Finds
LOS ANGELES - A homeowner "who is aware, long before a rainstorm occurs and causes damage, of possible leakage" caused by construction defects cannot reasonably expect an insurer to pay for repairs on the theory that rainwater, and not the defects, caused the damage, a California appeals panel affirmed Nov. 14 (Simon Cohen, et al. v. Pacific Specialty Insurance Co., No. B276060, Calif. App., 2nd Dist., Div. 8, 2017 Cal. App. Unpub. LEXIS 7779).

Panel Reverses Summary Judgment On Insurer's Duty To Defend Defect Claims
SAN DIEGO - A California appeals panel on Nov. 14 reversed an entry of summary judgment to an insurer on its duty to defend construction defect claims under subcontractors' policies but affirmed summary judgment to a second insurer, finding that it has no duty to defend (McMillin Management Services L.P., et al. v. Financial Pacific Insurance Co., et al., No. D069814, Calif. App., 4th Dist., Div. 1, 2017 Cal. App. LEXIS 1000).

Faulty Work Claims Against Insured Are Not Covered, Georgia Federal Judge Says
ATLANTA - A homeowner's negligence claims arising out of an insured contractor's faulty workmanship are not covered under a commercial general liability insurance policy, a Georgia federal judge ruled Nov. 17, granting summary judgment to an insurer (Allstate Insurance Co. v. Adrianna Luu, et al., No. 17-312, N.D. Ga., 2017 U.S. Dist. LEXIS 190983).

Judge: Policy Does Not Exclude Contractors' Work As Home Builder, Not Roofer
OKLAHOMA CITY - An insurance company must provide coverage for two contractors under two commercial general liability policies because the language in the policies does not exclude coverage for their work as home builders rather than as roofers, a federal judge in Oklahoma ruled Nov. 9 in denying the insurer's motion for summary judgment (James River Insurance Company v. 5 Star Integrity Roofing & Exteriors, LLC, et al., No. CIV-16-950-M, W.D. Okla., 2017 U.S. Dist. LEXIS 185945).

Insurer Proves No Duty To Defend Absent 'Suit,' But Duty To Indemnify Remains
CHICAGO - Although the absence of a "suit" means that an insurer has no duty to defend a general contractor, an Illinois federal judge ruled Oct. 31 that the insurer failed to identify a limitation or exclusion that would preclude its duty to indemnify (Old Republic Insurance Co. v. Kenny Construction Co., No. 15-03524, N.D. Ill., 2017 U.S. Dist. LEXIS 180412).

Magistrate Judge Denies Deadline Extension In Defects Insurance Coverage Dispute
ORLANDO, Fla. - In an insurance coverage dispute over construction defects, a Florida federal magistrate judge on Nov. 13 denied a developer's request for an extension of deadline on the serving of expert disclosures (WaterMark Construction L.P. v. Southern-Owners Insurance Co., et al., No. 17-1814, M.D. Fla., 2017 U.S. Dist. LEXIS 186765).

Insurer Fails To Establish 3rd Party Is Subject To Personal Jurisdiction, Judge Says
OAKLAND, Calif. - A California federal judge on Nov. 3 granted a material supplier's insurer's motion to dismiss a third-party complaint brought by another insurer seeking contribution for underlying defenses costs in a construction defects lawsuit (Webcor Construction, LP, et al. vs. Zurich American Insurance Co., et al., No. 17-02220, N.D. Calif., 2017 U.S. Dist. LEXIS 182928).

No Coverage Owed For Mold Contamination Caused By Faulty Workmanship
CONCORD, N.H. - An insurer owes no coverage to its insureds for a loss-of-use claim arising out of mold contamination because the mold contamination was caused by faulty workmanship, an excluded cause of loss under the policy's mold endorsement, the New Hampshire Supreme Court said Nov. 15 (Michelle Russell, et al. v. NGM Insurance Co., No. 2016-054, N.H. Sup., 2017 N.H. LEXIS 218).

Fungi, Bacteria Exclusion Does Not Bar Insured's Defects, Panel Concludes
ELGIN, Ill. - A fungi and bacteria exclusion does not apply to preclude otherwise covered property damage from construction defects, an Illinois appeals panel affirmed Nov. 2, finding that an insurer had a duty to defend an underlying action (Pekin Insurance Co. v. JB Architecture Group Inc., et al., No. 15-MR-1755, Ill. App., 2nd Dist., 2017 Ill. App. Unpub. LEXIS 2236).

Washington Federal Judge Says Questions Of Fact Exist In Water Damages Suit
SEATTLE - A Washington federal judge on Nov. 16 determined that questions of material fact exist regarding the application of an insurer's exclusions for deterioration and rot to an insured condominium association's claim for water intrusion damages that occurred over time to the exterior cladding of two of the association's buildings (Sunwood Condominium Association v. Travelers Casualty Insurance Company of America, et al., No. 16-1012, W.D. Wash., 2017 U.S. Dist. LEXIS 189892).

Federal Judge Says Assertion Of Reservation Of Rights Is Not Affirmative Defense
MIAMI - A Florida federal judge on Nov. 7 partially granted an insured's motion to strike its insurer's affirmative defenses as they pertained to the insurer's reservation of rights because the assertion of a reservation of rights is not an affirmative defense (Kapow of Boca Raton Inc. et al. v. Aspen Specialty Insurance Co., No. 17-80972, S.D. Fla., 2017 U.S. Dist. LEXIS 184224).

Indiana Appeals Court Finds Contracts Waived Insurer's Right To Subrogation
INDIANAPOLIS - An Indiana appeals court panel on Oct. 31 reversed a trial court judge's ruling denying a motion for summary judgment, finding that an insurance company suing the contractors to recover the amount it paid to cover a school district's property damage claim waived its right to subrogation (Performance Services, Inc. v. Hanover Insurance Company, No. 19A01-1607-CT-1743, Ind. App., 2017 Ind. App. LEXIS 582).