Insurance Law Hawaii

Insurer Must Cover Construction Defects Claims Under Actual Injury Rule

   The Texas Court of Appeals held that the insured need not prove the exact dates physical damage occurred in order to trigger defense and indemnity coverage. Vines-Herrin Custom Homes, LLC v. Great Am. Lloyds Ins. Co., 2011 Tex. App. LEXIS 10027 (Tex. Ct. App. Dec. 21, 2011).

   In 1999, the insured built a home. He was insured under a CGL policy issued by Great American from November 9, 1998 to November 9, 2000. Thereafter, the insured held a CGL policy issued by Mid-Continent from November 9, 2000 to September 18, 2002.

   After construction was completed, the insured sold the house to the buyer in May 2000. After moving in, the buyer found numerous construction defects in the home, including water entering cracks in the home, and sinking and sagging of parts of the house. The buyer sued the insured, who sought coverage under the two policies. When the insurers refused to defend the underlying suit, the insured sued for a declaratory judgment.

   The underlying case went to arbitration and an award of $2.4 million was granted to the buyer. The insured assigned to the buyer his claims against the insurers.

   In the coverage action, the trial court initially applied the manifestation rule and imposed a duty to defend only if the property damage became apparent during the policy period. The court found for the buyer, but during the post-judgment motions, the Texas Supreme Court adopted the "actual injury" trigger. See Don's Bldg. Supply, Inc. v. One-Beacon Ins. Co., 267 S.W. 3d 20 (Tex. 2008). Under the "actual injury" approach, property damage occurred when actual physical damage took place rather than when it became discoverable. The trial court ruled for the insurers because the insured failed to show, by expert testimony, when the actual physical damage to the property occurred.

   The Court of Appeals reversed. Don's Buildingheld only that property damage under the CGL policy "occurred when actual physical damage to the property occurred." Id. at 24. So long as the damage occurred within the policy period, coverage was provided. Applying the eight-corners rule, the pleadings sufficiently alleged the policies were in effect prior to construction and actual damage occurred sometime during or after construction during the policy periods. Therefore, the underlying pleadings adequately plead that actual physical damage to the property potentially occurred during the policy periods and a defense was owed.

    Further, Great American's duty to indemnify was triggered. The lower court determined that the property damage manifested in May 2000, during Great American's policy period. As a matter of law, when the damage manifested, it had necessarily occurred under the actual injury rule. The evidence showed Great American's duty to indemnify was triggerd and expert testimony to establish the exact date of injury was not required to trigger the duty.

Utah Court Adopts Time on the Risk Allocation for Defense Costs

   The Utah Supreme Court determined the "other insurance" provisions of successive policies were inapplicable and instead adopted the time-on-the-risk method of allocation for defense costs in The Ohio Casualty Ins. Co. v. Unigard Ins. Co., 2012 Utah LEXIS 1 (Utah Jan. 06, 2012).

   Ohio Casualty insured Cloud Nine from June 10, 2001 to June 10, 2002. Thereafter, through December 12, 2002, Cloud Nine was uninsured. Unigard then covered Cloud Nine from December 12, 2002, until December 12, 2005. Both Ohio Casualty and Unigard's policies contained "other insurance" provisions.

   Edizone licensed patents and other intellectual property to Cloud Nine for manufacture and sale of an elastometer gel technology. Edizone eventually sued, alleging Cloud Nine continued to manufacture, use and sell its products after Edizone terminated the license.

   Cloud Nine turned to Ohio Casualty and Unigard for a defense. Unigard agreed to defend. Ohio Casualty refused and filed a declaratory judgment action in federal district court alleging ithad neither a duty to defend nor indemnify Cloud Nine. Unigard intervened and moved for partial summary judgment, arguing that Ohio Casualty had a duty to defend the Edizone suit and that Ohio Casualty was obligated to share defense costs equally with Unigard.

   The federal district court ruled in favor of Unigard on both issues. The case was appealed and the Tenth Circuit certified a question to the Utah Supreme Court, asking whether the underlying defense costs should be allocated under the "equal shares" method set forth in the "other insurance" clause in the policies, or, because the policies were issued for successive periods, should the defense costs be allocated using the time-on-risk method?

   The Tenth Circuit first determined that the "other insurance" clauses did not apply to successive insurers.

   The court then turned to equitable principles to determine how to apportion defense costs between the two insurers. The time-on-the-risk method fairly allocated costs between insurers based on the amount of risk each contracted to undertake and the premiums each received without compromising the rights of the insured. Under the time-on-the-risk method, the insurer facing larger indemnity costs had a greater stake in controlling choice of counsel and settlement negotiations.

   The court further determined that defense costs should not be apportioned to the insured for the period in which it was without coverage. Both policies gave the insurer control over its defense of the insured. It would therefore be inequitable to apportion any defense costs to an insured who had no power to select counsel or negotiate rates, and no voice in deciding whether to settle the suit. Accordingly, the court held it would be inequitable to hold the insured responsible for the share of defense costs attributable to the time period during which it was uninsured.

Insurer Not Entitled to Summary Judgment on Construction Defect Claims

   The insurer unsuccessfully moved for summary judgment, contending it had no obligation to defend two related underlying construction defect cases. Amerisure Ins. Co. v. R.L.Lantana Boatyard, Ltd., 2012 U.S. Dist. LEXIS 2466 (S.D. Fla. Jan. 9, 2012).

    An engineering report noted design construction defects and deficiencies in visible, physical improvements at The Moorings at Lantana Condominium. In two lawsuits, The Moorings sued the developer,R.L. Lantana Boatyard ("RLLB"), and the contractor, Current Builders of Florida.

    Current Builders was insured by Amerisure. RLLB was named as an additional insured under the Amerisure policy. Amerisure defended both suits, but sued for declaratory judgment to establish it had no duty to indemnify RLLB for claims in the underlying actions.

    Amerisure moved for summary judgment. Through discovery, Current Builders admitted that no construction that could have given rise to the damages alleged in the underlying complaints began before November 16, 2003, the date on which Amerisure's policy expired. In its opposition, RLLB attached an affidavit stating that Current Builders commenced work, including structural work, several months prior to November 15, 2003.

   Amerisure contended that because neither of the underlying complaints alleged damages sustained to the building's structural foundation, but only to visible, physical improvements, there was no genuine issue of material fact which would preclude summary judgment. The court disagreed. It was possible that a defect in the structural foundation from work performed during the policy period caused some of the defects outlined in the complaints. For example, a defectively constructed foundation could result in foundational movement which could have caused some of the cracks in stucco outlined in the engineer's report.

   Therefore, a genuine question of fact existed with regard to whether the defects alleged in the underlying complaints were caused by potential structural defects arising from work completed during the policy period.

Hawaii Federal District Court Stays Coverage Action

   The insured moved to dismiss the insurers' action for declaratory judgment because a parallel action was pending in Missouri state court. Axis Surplus Ins. Co. v. McCarthy/Kiewit, 2012 U.S. Dist. LEXIS 3612 (D. Haw. Jan. 12, 2012).

   Kaiser Foundation Health Plan, Inc. hired the insured, a joint venture, to act as general contractor for construction of an addition to the Moanalua Medical Center. The joint venture was insured under a CGL policy issued by Arch Insurance Company. Excess layers of coverage were issued by RSUI Indemnity Company and Axis Surplus Insurance Company.

   Kaiser sued the joint venture in Missouri state court for damages due to construction defects on the project. Arch agreed to defend under a reservation of rights. RSUI and Axis refused to defend and filed a complaint in Hawaii state court for declaratory relief against the joint venture and Arch. The case was subsequently removed to the federal district court. The joint venture then filed a complaint against Arch Axis and RSUI in Missouri state court for breach of contract, anticipatory breach of contract, breach of the implied covenant of good faith and fair dealing, bad faith and declaratory judgment.

   The joint venture moved to dismiss the Hawaii federal court action. The district court, in a decision by Judge Kobayashi, considered the standard for stay or dismissal of the federal action as set forth by the Ninth Circuit in Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1991). Under the test, district courts were to: (1) avoid needless determinations of state law issues; (2) discourage litigants from filing declaratory actions in an attempt to forum shop; and (3) avoid duplicative litigation.

   Regarding the first criteria, avoiding needless determinations of state law, the court first noted this case paralleled proceedings in the Missouri state court. Second, the case involved insurance law, an area that Congress had expressly left to the states. Third, there was no compelling federal interest in adjudicating insurance disputes based on diversity jurisdiction. Fourth, the court could be faced with unsettled issues of Hawaii state insurance law. Although the Hawaii Intermediate Court of Appeals decided in Group Builders, Inc. v. Admiral Ins. Co., 123 Haw. 142, 231 P.3d 67 (Haw. Ct. App. 2010) that construction defects did not constitute an "occurrence," the legislature enacted  HB 924, which directed that the term "occurrence" be interpreted based on the law at the time the policy was issued. Accordingly, this first factor weighed in favor of dismissing or staying the federal action.

   Turning to the issue of forum shopping, the court found this factor was neutral in determining whether to exercise its discretionary jurisdiction over the case because it appeared both parties had engaged in forum shopping.

   Finally, under the third factor, the policy of avoiding duplicative litigation tipped slightly in favor of staying or dismissing the case pending the resolution of the broader Missouri action. Factual and legal determinations made in the Missouri action would be common to both cases.

   Considering other factors outlined in Dizol, the federal action would not settle all aspects of the controversy. Even if the federal court resolved the insurers' claims here, a number of related issues would remain in the Missouri action. Further, if both the federal court and the Missouri state court reached the merits of the insurance coverage issues, there would be a risk of inconsistent judgments, piecemeal litigation, and entanglement between the federal and state court systems.

   Finally, the court decided a stay pending resolution of the state court litigation was appropriate instead of a dismissal.

No Coverage For Negligent Misrepresentation Without Allegations of "Bodily Injury" or "Property Damage"

   Jeff City Industries was the general contractor for a sewer system improvement project in Branson, Missouri. Bituminous Cas. Corp. v. United HRB Gen. Contractors, Inc., 2011 U.S. Dist. LEXIS 145666 (W.D. Mo. Dec. 19, 2011). Branson sued Jeff City, alleging breach of the construction contract for the project. The claims included improperly bedded sewer piping, improper aligning portions of trenching for the sewer piping, improper service line connections to the sewer piping, etc. Further, Ozark Mountain Consultants, a subcontractor of Jeff City and a third-party defendant in the underlying action, brought a cross claim against Jeff City for negligent misrepresentation as to whether Jeff City procured insurance.

   Bituminous sought a declaratory judgment that it had no duty to defend because Branson's claims against Jeff City did not constitute "occurrences." Moreover, Ozark Mountain's claims did not allege "bodily injury" or "property damage."

   The court first determined that Branson's petition in the underlying case only alleged contractual claims. Accordingly, there was no "accident" or "occurrence" triggering Bituminous' policy.

   Turning to Ozark Mountain's cross claim, the court agreed that negligent misrepresentation could be an "occurrence" under a CGL policy. Here, however, the cross claim did not allege physical damages such as flooding or loss of use, but only asserted costs incurred in defending and prosecuting legal actions. Because Ozark Mountain's petition did not allege "bodily injury" or "property damage," Bituminous had no duty to defend.

  

Court Rejects Pro Rata Allocation Formula

   The Court considered how to allocate defense and indemnity responsibilities among various insurers in The Travelers Indem. Co. v. W.M. Barr & Co., No. 2:08-CV-02649 (D. Tenn. Nov. 28, 2011).

   W. M. Barr manufactured a variety of solvents, removers, and other related products. Barr was sued in various lawsuits alleging injury resulting from benzene contained in its products. Barr held CGL policies issued by various carriers from 1965 to the present. One insurer, Travelers, sued, seeking a declaratory judgment and the recovery of a proportionate share from Barr and the various insurers for the costs of defending Barr in the underlying lawsuits. Barr filed a counterclaim against Travelers and cross-claims against the defendant insurers, alleging they had breached their policies for failure to defend Barr in the underlying suits.

   Barr moved for summary judgment to establish the insurers had a duty to defend or to settle, a finding that these insurers breached their contractual duties, and an award of damages.

   One group of insurers had issued polices without self-insured retentions. The central issue was whether these insurers were responsible only for a pro rata allocation of the costs of defendant Barr, with Barr covering defense costs that certain insolvent insurers would have been obligated to pay. The court found no express pro rata provision in the policies, nor any language to suggest the parties intended such a partial exclusion of coverage. So long as a lawsuit brought against Barr alleged benzene exposure during a period in which such a policy was in force, the insurer had to indemnify and defend such claims in their entirety, even if the injury at issue was, in part, suffered outside of the insurer's policy period. While the insurer could seek contribution from other insurers it had no such right against the policyholder as so-called "self-insurer."

   The court next considered the insurers who issued polices with self-insured rententions. The central issue under these policies was whether the "per occurrence" language of the SIR provisions was properly construed as meaning per claims, as the insurers argued, or as including all claims arising out of the same defect in the manufacture and sale of its products, as Barr asserted. The court agreed with Barr. The "per occurrence" language was properly construed as including all claims arising out of the same defect in the manufacture and sale of its products.

Granting Stay, Federal Court Reviews Construction Defect Coverage in Hawaii

   The federal district court ultimately stayed a construction defect case, but offered comments on the current status of coverage disputes for such defects in Hawaii. See National Union Fire Ins. Co. of Pittsburgh, Pa. v. Simpson Mfg. Co., 2011 U.S. Dist. LEXIS 128481(D. Haw. Nov. 7, 2011).

   National Union filed a complaint for declaratory relief to establish it had no duty to defend or to indemnify Simpson Manufacturing Company in four actions pending in the Hawaii state courts. The state court actions concerned allegedly defective hurricane strap tie hold downs that were manufactured and sold by Simpson. The hurricane ties allegedly began to prematurely corrode and rust, causing cracking, spalling and other damage to homes.

   National Union contended the underlying allegations did not constitute "property damage" caused by an "occurrence," as defined in the policies. National Union relied upon Group Builders, Inc. v. Admiral Ins. Co.,231 P.3d 67 (Haw. Ct. App. 2010), where the Hawaii appellate court held, "under Hawaii law, construction defect claims do not constitute an occurrence under a CGL policy." Id. 73.

   Simpson moved to dismiss, urging the court to decline jurisdiction because of the four actions pending in Hawaii state court which would potentially address the existence of any property damage and the cause of such damage. Simpson also argued the court would have to untangle unsettled questions of Hawaii law, including the continued viability of Group Builders in the face of H.B. 924. This legislation stated that "the meaning of the term occurrence shall be construed in accordance with the law as it existed at the time that the insurance policy was issued."

   The court agreed to stay the proceedings pending the outcome of certain state court cases that would resolve relevant factual and legal issues. The court noted that the state of Hawaii insurance law was very much in flux given Group Builders and H.B. 924. Therefore, a stay was appropriate.

   Simpson argued, in the alternative to dismissal,that the case should be transferred to the Northern District of California, where a related case was pending. The court rejected this effort. Hawaii's strong public policy interest in insurance law in the construction context, which was expressly stated in H.B. 924, outweighed the risks and inefficiencies associated with parallel proceedings pending in California. Although not as clearly drafted as it might be, the court noted under H.B. 924,"the purpose of this Act is to restore the insurance coverage that construction industry professionals paid for and to ensure that the good-faith expectations of parties at the time they entered into the insurance contract are upheld."

   As the state judiciary had not yet addressed the continuing viability of Group Builders and H.B. 924, and because Simpson had indicated it intended to seek to apply California law to the policies, Hawaii's public policy interest in the case provided compelling weight in favor of retaining the case.

 

Tenth Circuit Finds Insurer Must Defend Unintentional Faulty Workmanship

   Applying Colorado law, the Tenth Circuit found a duty to defend construction defect claims where the faulty workmanship was unintentional. Greystone Const. Inc. v. National Fire & Marine Ins. Co., 2011 U.S. App. LEXIS 22053 (10th Cir. Nov. 1, 2011). A prior post [here] discussed the Tenth Circuit's certified question to the Colorado Supreme Court in this matter, a request that was rejected by the Colorado court.

   In two underlying cases, Greystone was sued by the homeowner for damage caused to the foundation by soil expansion. In both cases, the actual construction was performed by subcontractors. Further, in neither case was the damage intended or anticipated. Nevertheless, National Union refused to defend, contending property damage resulting from faulty construction was not an occurrence.

   Relying on a Colorado Court of Appeals case, General Security Indemn. Co. of Arizona v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo. App. 2009), the district court granted summary judgment to National Union.

   On appeal, the Tenth Circuit first considered whether Colorado legislation enacted to overturn General Security could be applied retroactively. The statute, section 13-20-808, provided courts "shall presume that the work of a construction professional that results in property damage, including damage to the work itself or other work, is an accident unless the property damage is intended and expected by the insured." The court concluded the statute had no retroactive effect and did not apply to this appeal. Incidentally, section 13-20-808 was the model for the initial drafts of the Hawaii 2011 legislature's HB 924, which was eventually enacted in a different version as Act 83.

   The Tenth Circuit then looked to General Security, which held that because the term "accident" implied fortuity, "a claim for damages arising from poor workmanship, standing alone, does not allege an accident that constitutes a covered occurrence . . . ." General Security, 205 P.3d at 534. Despite the decision by the Colorado Court of Appeal, the Tenth Circuit believed the Colorado Supreme Court would construe the terms "occurrence" to encompass unforeseeable damage to nondefective property arising from faulty workmanship.

   The Hawaii Intermediate Court of Appeals (ICA) was heavily influenced by General Security in Group Builders, 123 Haw. 142, 231 P.3d 67 (Haw. Ct. App. 2010), wherein the ICA determined construction defects do not arise from an occurrence and are not covered. The ICA was influenced by General Security's breakdown of cases across the country addressing whether construction defects are covered under a CGL policy, and ultimately agreed with what it termed the "majority" position that there was no coverage.

   The Tenth Circuit, however, disagreed with General Security's breakdown. Most federal circuit and state supreme court cases lined up in favor of finding an occurrence where damage arises from faulty workmanship. The court noted the recent trend interpreted the term "occurrence" to encompass unanticipated damage to non-defective property resulting from poor workmanship. These cases generally held that damage caused by faulty workmanship was neither expected nor intended from the standpoint of the policy holders, and was therefore covered as long as it did not fall under a policy exclusion.

   Therefore, injury flowing from improper or faulty workmanship was an occurrence so long as the resulting damage was to non-defective property, and was caused without expectation or foresight. CGL policies were intended to cover unforeseeable damages, a category that encompassed faulty workmanship leading to physical damage of non-defective property. The damage suffered by the homeowners here may have resulted from an unforeseen occurrence: the damage caused by the faulty workmanship that failed to account for exposure to expansive soils.

   Finally, the court considered the meaning of the "your work" exclusion and the subcontractor exception. It was the initial broad grant of coverage, not the exception to the exclusion, that ultimately created (or did not create) coverage. Exclusions were then considered to determine whether coverage was negated. Given this structure of CGL policies, the "your work" exclusion and the subcontractor exception were illusory if damages to the contractor's non-defective work product was not covered in the first place.

   Consequently, damage arising from poor workmanship could fall under a CGL policy's initial grant of coverage, even though recovery may still be precluded by a business-risk exclusion or other provision.

   Thanks to my Damon Key colleague, Anna Oshiro, for flagging this case.

Duty to Defend Arises from Allegations of "Advertising Injury"

   The insured, Dish Network Corporation, was sued for patent infringement by Ronald A Katz Technology Licensing, L.P. (RAKTL). See Dish Network Corp. v. Arch Specialty Ins. Co., 2011 U.S. App. LEXIS 20955 (10th Cir. Oct. 17, 2011). RAKTL alleged Dish infringed on twenty-three patents. The underlying complaint provided little information about how Dish actually used RAKTL's technologies. 

   Dish had several primary and excess policies from five different insurers. All of the policies agreed to defend and indemnify Dish against claims alleging "advertising injury." The policies defined "advertising injury" as, among other things, "[m]isappropriation of advertising ideas . . . ."

   The insurers denied a defense. Dish sued and the insurers moved for summary judgment. The district court agreed that RAKTL's reference to "customer service functions" in its complaint was sufficient to allege that Dish engaged in "advertising." The court rejected, however, Dish's argument that its use of a patented interactive telephone system to advertise could constitute "misappropriation of advertising ideas." The complaint did not allege that the patented technologies were themselves misappropriated as an element of Dish's communications and interactions with its customers. Therefore, the conduct was not "misappropriation of an advertising idea."

   The Tenth Circuit reversed. The court first considered whether patent infringement generally fell within the applicable CGL policies' "advertising injury" coverage. Here, Dish allegedly committed patent infringement by using RAKTL's technology to sell Dish's own non-infringing satellite television products and services. Normally, the scope of "advertising injury" coverage was clear where a patented product was advertised and sold. Where, however, the advertising idea that was misappropriated was also a patented technology, the scope of coverage was less certain.

   Therefore, whether this case presented a "misappropriation of advertising ideas" was ambiguous.  A suit for patent infringement could, under narrow circumstances, allege "misappropriation of advertising ideas." Therefore, the ambiguity had to construed in favor of coverage of a patent infringement case. 

   The court next asked whether the complaint potentially alleged a "misappropriation of advertising ideas." The underlying complaint potentially alleged acts of advertising because it did not fully explain what was meant by "pay-per-view ordering and customer service functions." This case differed from the typical case in which the insured merely advertised a product it had already misappropriated. Instead, the complaint here alleged misappropriation of a product specifically designed, in part, for advertising purposes. These allegations were sufficient to raise the possibility of misappropriation of an advertising idea.

   Finally, the court considered causation, i.e., whether the complained of injury arose in the course of advertising, as the policy language required. RAKTL alleged it "has been damaged and irreparably harmed by Dish's infringement, which will continue unless Dish is enjoined." Accordingly, the allegations sufficiently stated causation.

   Therefore, the district court's grant of summary judgment was reversed and remanded to allow consideration of exclusions in the policies yet to be addressed by the district court.

   Thanks to my Damon Key colleague, Mark Murakami (www.oceanlawhawaii), for forwarding this case to me.

Fifth Circuit Reverses Insurers' Summary Judgment Award Based on "Your Work" Exclusion

   Application of the facts to the "your work" exclusion was the key to resolving coverage issued in Am. Home Assurance Co. v. Cat Tech L.L.C., 2011 U.S. App. LEXIS 21076 (5th Cir. Oct. 5, 2011).

   Ergon Refining, Inc. hired Cat Tech L.L.C. to service a hydrotreating reactor. In January 2005, Cat Tech replaced certain parts in the reactor. After Cat Tech finished the job and left, Ergon noticed a high pressure drop in the reactor, forcing it to be shut down. Cat Tech returned in February 2005, removed, repaired and replaced the damaged parts, and loaded new parts. After completion, a second large pressure drop occurred during the reactor's start-up process. The reactor was shut down until October 2005, when Ergon hired a different contractor to perform the repair work. Additional damage to the reactor was found.

   Cat Tech and Ergon went to arbitration. The arbitrators found Cat Tech was at fault and awarded Ergon $1.9 million in damages. Cat Tech sought indemnification from its insurers, American Home, under a CGL policy, and National Union, under an umbrella policy. American Home defended in the arbitration, but only paid its policy's per-occurrence limit of $1 million. National Union denied Cat Tech's claim in its entirety. The policies' "your work" exclusion barred coverage for "'property damage' to 'your work' arising out of it or any part of it . . . . "

   The insurers filed suit seeking a declaratory judgment to establish that the "your work" exclusion precluded coverage. The district court granted summary judgment to the insurers based upon the "your work" exclusion.

   The Fifth Circuit noted there were three categories of property damage potentially at issue. The first category encompassed property damage to the specific parts of Ergon's reactor upon which Cat Tech performed defective work. The second category was property damage to those parts of the reactor upon which Cat Tech performed non-defective work, but were nonetheless damaged. The third category encompassed other Ergon property upon which Cat Tech did not work, but was still damaged. The Fifth Circuit concluded that the "your work" exclusion only precluded coverage for damage to that portion of Ergon's property upon which Cat Tech performed repair work, defective or otherwise. It did not preclude coverage for any damage to Ergon's property that Cat Tech did not repair or service.

  The district court erroneously relied upon the arbitration award in deciding damage to Ergon's reactor was limited to those components that Cat Tech serviced. The Fifth Circuit determined the arbitration award was too vague in its description of the damage to the reactor and how that damage related to the work Cat Tech performed. While the award found Cat Tech responsible for the damage, this only resolved the issue of liability between Ergon and Cat Tech, not coverage between Cat Tech and its insurers.

  Accordingly, there was a disputed issue of fact as to whether the damage to the reactor was limited to the parts upon which Cat Tech worked, or whether other parts of the reactor were also damaged during Cat Tech's work in January and February 2005.

   Thanks to my blogging colleague, Rebecca Copeland (www.recordonappeal), for sending this case my way.