Forest Fire Constitutes One Occurrence

January 15, 2019
Tred R. Eyerly - Insurance Law Hawaii

The Wisconsin Supreme Court determined that a fire damaging several properties arose from one occurrence. Secura Ins. v. Lyme St. Croix Forest Company, LLC., 2018 Wis. LEXIS 579 Oct. 30, 2018).

A fire broke out on forest land owned by Lyme St. Croix Forest Company. Known as the "Germann Road Fire," it burned 7, 442 acres over three days. Real and personal property belonging to many individuals and businesses were damaged. The fire allegedly began while equipment owned by Ray Duerr Logging, LLC was being repaired. Flames quickly spread from dry grass to a pile of recently felled trees and spread to the surrounding forest.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Top 10 Insurance Cases of 2018

January 9, 2019
Jeffrey J. Vita & Grace V. Hebbel - Saxe Doernberger & Vita, P.C.

2018 was a year of landmark decisions regarding insurance coverage for a variety of emerging claims, including cyber fraud, the "Me Too" movement, and wildfires. Read on to learn more as well as to find out what cases you should keep your eye on as 2019 unfolds.

1. Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd
882 F.3d 952 (10th Cir. 2018)
United States Court of Appeals, Tenth Circuit
February 13, 2018
Will New York join the majority in finding that faulty work by a subcontractor is a covered occurrence?

Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and Grace V. Hebbel, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. Hebbel may be contacted at gvh@sdvlaw.com


Serious Dump and Ready-Mix Delivery Truck Accidents Edge Higher

January 2, 2019
Scott Van Voorhis – Engineering News-Record

Serious accidents involving dump trucks and ready-mix concrete delivery trucks continue to edge up, part of a persistent, multi-industry problem with poor driving habits that has not yet responded to increased fleet and vehicle insurance premiums. Federal regulators and industry safety experts have sought to cut the accidents by limiting driver fatigue and using technology to keep a closer tab on what happens on the road.

ENR may be contacted at ENR.com@bnpmedia.com


Insurer's Knowing Violation of Texas Insurance Code May Entitle Insured to Treble Damages

December 19, 2018
Bethany L. Barrese - Saxe Doernberger & Vita, P.C.

The Fifth Circuit’s recent opinion in Lyda Swinerton Builders, Inc. v. Oklahoma Sur. Co.1 includes policyholder-friendly holdings on Texas law concerning the duty to defend and the potential to recover treble damages for an insurer’s knowing violation of Texas Insurance Code.

Ms. Barrese may be contacted at blb@sdvlaw.com


A Guide to Homeowners' Insurance for California Wildfire Losses

December 11, 2018
William S. Bennett - Saxe Doernberger & Vita, P.C.

In 2017 and 2018 alone, California experienced the two largest and the first and fourth deadliest fires in its history.

Sadly, a University of California report predicts that the frequency and potency of these fires will only continue to increase in the coming years and decades, increasing the importance of knowing about insurance.

Mr. Bennett may be contacted at wsb@sdvlaw.com


Top 10 List of Scariest Insurance Policy Terms

December 4, 2018
Theresa A. Guertin - Saxe Doernberger & Vita, P.C.

SDV attorneys spend a lot of time reviewing insurance policies for our construction industry clients. From analyzing policies that are meant to provide additional insured coverage to our general contractor clients, to parsing through OCIP and CCIP placements sent to us by our broker colleagues, we’ve seen it all. Sometimes coverage can be a scary thing, so in honor of Halloween, here is our “Top 10 List of Scariest Insurance Policy Terms” we’ve seen over the past year.

1. Complete bodily injury exclusions. Especially in markets where subcontractor insurance costs are high and profit margins are low, subcontractor policies contain bodily injury exclusions for employees at an alarming rate. Exclusions this broad can mean no coverage when an injured employee brings a claim against an additional insured, thereby exposing the additional insured’s corporate program to a loss which otherwise should be transferred downstream.

Ms. Guertin may be contacted at tag@sdvlaw.com


Parametric Insurance: Mitigating Risk From Weather-related Events

November 28, 2018
Paul Ramiz & Michael DeLio - Construction Executive

In the last three years there have been record-breaking extreme weather events, changing seasonality, increases in temperature and rainfall and overall greater volatility globally. This specifically has created a challenge for the U.S. construction industry, which after a slight decline in construction spending in 2017 is expected to have six percent growth in 2018 and will to continue to grow through 2021. The recent increase in construction spending and expected projects to come has allowed the insurance and wider financial services sector to offer increasingly tailored solutions that allow both owners and operators of construction projects to manage the financial impact of adverse weather on revenues and costs.

Reprinted courtesy of Paul Ramiz & Michael DeLio, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


How To Make Sure Your Subs Can Finish The Work

November 21, 2018
Kenneth Rubinstein - Engineering-News Record

Earlier this month, a subcontractor default insurance company filed suit against an electrical subcontractor in New York state court. The claim: a $12.8 million loss caused by the subcontractor’s admitted failure to complete electrical work under a subcontract at the Whitney Museum of American Art in Manhattan.

Mr. Rubenstein may be contacted at KRubinstein@Preti.com


Requiring Approval of All Insureds and Mortgagees To Assign Policy Upheld by Florida Court

November 14, 2018
Tred R. Eyerly - Insurance Law Hawaii

The Florida Court of Appeal upheld an assignment of benefits provision that required signatures of all insureds and mortgagees. Restoration 1 of Port St. Lucie v. Ark Royal Ins. Co., 2018 Fla. App. LEXIS 12633 (Fla. Ct. App. Sept. 5, 2018).

Ark Royal issued a homeowner's policy to the insureds. The policy stated that "[n]o assignment of claim benefits, regardless of whether made before a loss or after a loss, shall be valid without the written consent of the insureds, and all mortgagee(s) named in this policy."

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Insurance Bad Faith And Consumer Protection Act Claims Against Individual Insurance Adjusters Deemed Valid

November 6, 2018
Ceslie Blass - Ahlers Cressman & Sleight PLLC Blog

The Washington State Court of Appeals has further tipped the scales in favor of insureds in insurance bad faith and Consumer Protection Act (CPA) litigation. The Court of Appeals held in Keodalah v. Allstate Ins. Co.[1], that (1) RCW 48.01.030 imposes a duty of good faith on “all persons” engaged in the business of insurance, and (2) the CPA does not require a contractual relationship to exist between the parties in order for a claim to be valid. In other words, bad faith and CPA claims against an individual insurance adjuster will be viable.

Ms. Blass may be contacted at ceslie.blass@acslawyers.com


“Crypto-Property:” Ohio Court Says Crypto-Currency is Personal Property Under Homeowners’ Policy

October 30, 2018
Michael S. Levine - Hunton Insurance Recovery Blog

In what appears to be a case of first impression, an Ohio trial court ruled in Kimmelman v. Wayne Insurance Group, that the crypto-currency, Bitcoin, constitutes personal property in the context of a first-party homeowners’ insurance policy and, therefore, its theft would not be subject to the policy’s $200 sublimit for loss of “money.”

Mr. Levine may be contacted at mlevine@HuntonAK.com


Denial of Coverage for Late Notice Upheld

October 23, 2018
Tred R. Eyerly - Insurance Law Hawaii

The insurer's denial of coverage for receipt of late notice of a claim was upheld by the federal district court. Evanston Ins. Co. v. Yeager Painting, LLC, 2018 U.S. Dist. LEXIS 130316 (N.D. Ala. Aug. 3, 2018).

Yeager Painting was in the business of sandblasting and painting. Yeager Painting was hired as a subcontractor to sandblast water tanks in the city of Pelham, Alabama. Yeager Painting subcontracted the work to Delgado Painting. An employee of Delgado Painting was seriously injued when he fell 25 to 30 feet to the ground from a man-lift basket.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Florida Supreme Court’s Application of Insurance Bad Faith in Third-Party Context

October 16, 2018
David Adelstein - Florida Construction Legal Updates

What happens when an insured receives a judgment in excess of his/her insurance policy limits when the matter could have been resolved within the insured’s policy limits? Think of a personal injury scenario where the insured received a claim by an injured party and tenders the claim to his/her insurer. What if that matter could get resolved within policy limits but it does not and exposes the insured to a judgment in excess of the policy limits? This could be where insurance bad faith comes into play in the third-party liability insurance context based on the totality of circumstances—the insurer acted in bad faith in failing to settle this third-party claim and exposed the insured to a judgment in excess of the insured’s policy limits.

Mr. Adelstein may be contacted at dma@kirwinnorris.com


Uncertainty About Hurricane Florence’s Impact Zone Has Caused Widespread Event Cancellations. Insurance May Cover The Financial Loss

October 9, 2018
Michael S. Levine & Tae Andrews - Hunton Andrews Kurth

Hurricane Florence has yet to make landfall, but the storm has already wreaked havoc on this weekend’s college football schedule, concerts, and other events. West Virginia and NC State postponed their Saturday game indefinitely. Rescheduling remains to be seen. UCF and North Carolina cancelled their game outright, as did East Carolina and Virginia Tech. Other teams relocated their games or changed dates and start times, with many offering free tickets to fans who can accommodate the last-minute changes. The NFL also is keeping a close eye on the situation, as the storm could impact Sunday’s game between the Washington Redskins and the Indianapolis Colts at FedEx Field. Meanwhile, non-sporting events also have been cancelled, including Alan Jackson’s concert at the North Charleston Coliseum, the Zac Brown Band’s concerts in Charlotte and Raleigh, and J. Cole’s Dreamville Festival, which alone will require the refunding of some 30,000 tickets.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Tae Andrews, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Andrews may be contacted at tandrews@HuntonAK.com


The Right Endorsement: Additional Insureds

October 2, 2018
Christine Cowan - Construction Executive

Adding other parties as an additional insured on to a general liability policy has become increasingly popular during the past 20 years. Almost every contract, especially in the construction industry, includes this requirement. To keep up with demand and pressure from the insurance industry, the Insurance Services Office has issued various versions of the standard endorsements, CG 20 10 and CG 20 37, which have not always been advantageous to additional insureds, especially in the construction industry. Therefore, it is important to review construction contracts in full and pay special attention to the wording revolving around the additional insured endorsements.

Reprinted courtesy of Christine Cowan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Hurricane Florence Causes Estimated $2.5 Billion in Insured Losses

September 25, 2018
Ivan Levingston - Bloomberg

Hurricane Florence, which made landfall in North Carolina Friday as a Category 1 storm, is estimated to have caused insured losses totaling $2.5 billion, according to catastrophe modeler Karen Clark & Co.

That figure includes privately insured wind, storm surge and inland flooding damage, while excluding losses covered under the federal government’s National Flood Insurance Program, the Boston-based company said in its advisory.


Assignment of Benefits Provision in Homeowner’s Policy is Enforceable

September 18, 2018
David Adelstein - Florida Construction Legal Updates

When it comes to property insurance claims, particularly those under a homeowner’s insurance policy, an insured will oftentimes assign its benefits under the policy to a restoration contractor. The request for the assignment may likely be prompted by the contractor that does not want to perform the work without the assignment of benefits. The assignment of benefits (also known by the acronym “AOB”) allows the third-party contractor (as the assignee of the insured) to sue the insurer directly for benefits under the policy associated with the restoration work.

Mr. Adelstein may be contacted at dma@kirwinnorris.com


SBA Cuts Surety Guarantee Fees, for One Year

September 10, 2018
Tom Ichniowski – Engineering News-Record

The U.S. Small Business Administration will be trimming the fees it charges for its surety bond guarantees for one year, the first reduction in the charges in 12 years.

Mr. Ichniowski may be contacted at ichniowskit@enr.com


Over One Hundred Charged in Fraudulent Sandy Relief Fund Applications

September 5, 2018
David Suggs – Bert L. Howe & Associates, Inc.

Recently, the number of false claims in New Jersey Sandy Relief Fund Applications has grown to 120, according to Property Casualty 360. Furthermore, “[t]he 120 people charged by the Attorney General’s Office allegedly were responsible for diverting more than $8 million in relief funds.”

Attorney General Gurbir S. Grewal explained what has been done to reclaim the alleged diverted funds: “We have recovered over $2.2 million through these prosecutions and we also have sent a strong message that should deter this type of fraud during future disaster relief efforts.”


Insurer's Motion to Dismiss Case for Collpase Coverage Denied

August 29, 2018
Tred R. Eyerly - Insurance Law Hawaii

In yet another collapse case from Connecticut, the federal district court denied the insurer's motion to dismiss. Maki v. Allstate Ins. Co., 2018 U.S. Dist. LEXIS 102708 (D. Conn. June 20, 2018).

In February 2016, the insureds noticed a series of cracks throughout the basement walls of their home. The insureds believed the problem was due to tainted concrete, likely obtained from the J.J. Mottes Concrete Company, which had caused similar problems in homes throughout Connecticut. A chemical compound in the Mottes concrete would eventually cause the home to cave in on itself, and there was no known method to prevent the continuing deterioration.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Insurer's Denial of Claim for Faulty Workmanship Does Not Survive Summary Judgment

August 21, 2018
Tred R. Eyerly - Insurance Law Hawaii

The court granted the insured's motion for summary judgment despite the insurer's denial based upon faulty workmanship. Engineered Structures, Inc. v. Travelers Prop Cas. Co. of Am., 2018 U.S. Dist. LEXIS 102822 (D Idaho June 18, 2018).

Engineered Structures, Inc. (ESI) contracted with Fred Meyer Stores, Inc. to build a fuel center. The contract called for the installation of two underground storage tanks (USTs) for storage and sale of fuel. ESI contracted with 3 Kings Environmental, Inc. (3 Kings) to install the Liquid Fuel Distribution and Electrical systems.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Arizona Upholds Assignment of Post-Loss Benefits

August 15, 2018
Tred R. Eyerly - Insurance Law Hawaii

The Arizona Court of Appeals upheld the insured's assignment of benefits despite the policy's anti-assignment provision. Farmers Ins. Exchange v. Honorable David Udall, 2018 Ariz. Ct. App. LEXIS 94 (Ariz. June 12, 2018).

Farmers issued homeowners' policies to four homeowners who later required water damage mitigation and restoration services. Each of the policies included an anti-assignment provision stating that the insured's "interest in this policy may not be transferred o another person without [Farmers'] written consent." Each insured, however, signed a "Work Order Agreement & Assignment of Benefits" authorizing the remediation company, EcoDry Restoration of Arizona, LLC, to perform emergency water mitigation services and then assign insurance rights under the policies to EcoDry. The assignment authorized and instructed the insurance company to pay directly to EcoDry the amount shown in the final billing for work done by EcoDry.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Is the New York Scaffolding Law Driving Up Insurance Costs?

August 8, 2018
Beverley BevenFlorez-CDJ STAFF

Construction Drive reported that critics are blaming New York’s Scaffold Safety Law for insurance increases for “New York City's $11.2 billion East Side Access tunnel has risen 557% from original cost estimates to $584 million.” However, others are claiming “much of the increase is due to a decade's worth of project delays, and insurance costs have risen along with the extended coverage period. In addition, as part of its last insurance policy renewal, the authority has to pay a $15 million penalty to its insurer because personal injury claims exceeded the policy's $40 million cap.” Construction Dive suggested “[i]f personal injury claims for falls is what is driving up a construction company's insurance costs, then that contractor should probably evaluate its safety program, and implement policies that will reduce the rate of accidents.”


Current Trends in Construction Insurance Industry

July 31, 2018
Beverley BevenFlorez-CDJ STAFF

Insurance Journal interviewed construction insurance professionals to see what’s new in the market. First, there seems to be confidence in the construction market as a whole: “It’s a healthy construction market outlook,” Danette Beck, national construction practice leader at USI, an insurance brokerage and consulting firm, told Insurance Journal. “There aren’t any projections right now that there is going to be a slowdown.” Other topics discussed include Meaningful Risk Management, Construction Utilizing Technology, and Coverage Trends.



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