Further demonstrating a difference of opinion between federal district court and state court trial judges, Judge Mollway denied a motion to certify a proposed question to the Hawaii Supreme Court regarding coverage for construction defects. Illinois Nat’l Ins. Co. v. Nordic PLC Constr., Inc., Civil No. 11-00515 SOM/KSC (Order Denying Defendant’s Motion to
Comprehensive General Liability
Exclusions and Exceptions to Exclusions Explored
By Tred R. Eyerly on
The court considered the shifting burdens of proof regarding the liability policy's exclusions and exceptions to the exclusions. Ment Bros. Iron Works Co. Inc. v. Interstate Fire Cas. Co., 2012 U.S. App. LEXIS 25310 (2nd Cir. Dec. 11, 2102).
The building owner and developer hired a general contractor, who hired the insured…
Concurrent Causation Doctrine Does Not Salvage Coverage
By Tred R. Eyerly on
An exclusion for firearms in a CGL policy barred coverage despite the insured's argument that the concurrent causation doctrine should apply. Capitol Specialty Ins. Corp. v. JBC Entertainment Holdings, Inc., 2012 Wash. App. LEXIS 2835 (Wash. Ct. App. Dec. 10, 2012).
The coverage dispute arose when an unknown person fired a gun…
Allegations of Actual Property Damage Necessary to Invoke Duty to Defend
By Tred R. Eyerly on
The Fifth Circuit held that under Texas law, conclusory allegations of property damage in the underlying complaint did not trigger the insurer's duty to defend. PPI Tech. Serv., L.P. v. Liberty Mut. Ins. Co., 2012 U.S. App. LEXIS 24571 (5th Cir. Nov. 29, 2012).
Royal Production Company was the lessor and operator…
Loss Caused by Subcontractor’s Faulty Work Covered in Georgia
By Tred R. Eyerly on
The Georgia Court of Appeals found a subcontractor was covered under a CGL policy for loss caused by alleged faulty workmanship. Maxum Indem. Co. v. Jimenez, 2012 Ga. App. LEXIS 970 (Ga. Ct. App. Nov. 20, 2012).
Jimenez was hired as a subcontractor to install pipes for a dormitory construction project at…
Legislation Expanding “Occurrence” to Cover Faulty Workmanship Cannot Be Applied Retroactively
By Tred R. Eyerly on
The South Carolina Supreme Court held that the legislative definition expanding the meaning of "occurrence" to include damage resulting from faulty workmanship cannot be applied retroactively. Harleysville Mut. Ins. Co. v. The State of South Carolina, 2012 S.C. LEXIS 270 (S.C. Nov. 21, 2012).
The South Carolina legislation, Act No. 26, was…
Eleventh Circuit Asks Georgia Supreme Court if Construction Defects Are Caused by an “Occurrence”
By Tred R. Eyerly on
The Eleventh Circuit certified a question to the Georgia Supreme Court, asking whether property damage can constitute an "occurrence" under a CGL policy where its effects are not felt on "other property." HDI-Gerling Am. Ins. Co. v. Morrison Homes, Inc., 2012 U.S. App. Ct. LEXIS 23813 (11th Cir. Nov. 19, 2012).
The general contractor…
Claim Against Broker Who Secures Inadequate Coverage Survives Summary Judgment
By Tred R. Eyerly on
The insurance agent's motion for summary judgment was denied where issues of fact existed regarding his failure to obtain specifically requested coverage. Am. Building Supply Corp. v. Petrocelli Group, Inc., 2012 N.Y. LEXIS 3476 (N.Y. Nov. 19, 2012).
The insured was a tenant of a building from which it sold and furnished building materials to…
Testimony of Policy Archivist Excluded Under Daubert
By Tred R. Eyerly on
The insured had to rely on a policy archivist to establish the terms and conditions of two umbrella policies that were lost. See Canal Ins. Co. v. Montello, Inc., 2012 U.S. Dist. LEXIS 148119 (Oct. 15, 2012). The court excluded the reports and testimony of the expert because he could not satisfy the…
Ohio Supreme Court Finds Construction Defects Do Not Arise From An Occurrence
By Tred R. Eyerly on
The Ohio Supreme Court recently determined that underlying obligations of defective workmanship are not claims for "property damage" caused by an "occurrence." Westfield Ins. Co. v. Custom Agri. Systems, Inc., 2012 Ohio LEXIS 2485 (Ohio Oct. 16, 2012).
The case evolved from a certified question from the United States Court of Appeals for the Sixth…