AUSTIN, Texas — In briefs filed with the Texas Supreme Court, a couple and their contractor’s insurer dispute whether coverage for an underlying construction defects judgment against the insurer is precluded under an adversarial trial rule that an appeals court deemed inapplicable (Great American Insurance Co., et al. v. Glen Hamel, et al., No. 14-1007, Texas Sup.).
ALBUQUERQUE, N.M. — Unable to determine from the evidence provided whether an insured’s disability benefits plan is governed by the Employee Retirement Income Security Act of 1974 (ERISA), a federal judge in New Mexico on Feb. 14 converted the insurer’s motion to dismiss to a motion for summary judgment and ordered supplemental briefing (Sherry Evans-Carmichael v. Liberty Mutual Group Inc., No. 16-276, D. N.M., 2017 U.S. Dist. LEXIS 20599).
SAN FRANCISCO — Claims against a mutually insured subcontractor for damage caused by “subsidence” are excluded under an insurance policy, the Ninth Circuit U.S. Court of Appeals ruled Feb. 14, finding that an insurer had no duty to defend and thus was not responsible to share in costs incurred by a defending insurer (St. Paul Mercury Insurance Co. v. Navigators Specialty Insurance Co., No. 14-56723, 9th Cir., 2017 U.S. App. LEXIS 2586).
DENVER — Because an insured failed to establish that it suffered water damage to “covered property” at a renovation project under a builders risk policy, the 10th Circuit U.S. Court of Appeals on Feb. 16 affirmed a Colorado federal judge’s finding that the insurer properly denied coverage and did not breach its contract (Gerald H. Phipps, Inc. d/b/a GH Phipps Construction Co. v. Travelers Property Casualty Company of America, No. 16-1039, 10th Cir.).
DENVER — A two-year statute of limitations precludes an insured’s breach of contract claim against its insurer for denied coverage for property damage to commercial properties, a Colorado federal judge ruled Feb. 13 (The Pinewood Townhome Association Inc. v. Auto-Owners Insurance Co., No. 15-01604, D. Colo.; 2017 U.S. Dist. LEXIS 19999).
SCRANTON, Pa. — Because more than 31 percent of an insured condominium development's common areas were in use at the time a loss for water damage occurred, a Pennsylvania federal judge ruled Feb. 10 that an insurance policy’s “Vacancy Provision” does not apply to exclude coverage for the insured’s claim (Village Heights Condominium Association v. The Cincinnati Insurance Co., No. 16-554, M.D. Pa., 2017 U.S. Dist. LEXIS 19425).
DES MOINES, Iowa — Finding that a church’s cause of loss was a flood and, consequently, that the loss was excluded under its insurance policy, an Iowa appeals panel on Feb. 8 affirmed a trial judge’s granting of an insurer’s motion for judgment notwithstanding a $717,000 verdict in favor of the church (Salem United Methodist Church of Cedar Rapids, Iowa v. Church Mutual Insurance Co., No. 16-0170, Iowa App., 2017 Iowa App. LEXIS 122).
DENVER — In a bad faith lawsuit between a contractor and insurer, a Colorado federal judge on Feb. 8 certified a question to the state’s high court on whether a claim under Colorado Revised Statutes Section 10-3-1116 is subject to a one-year statute of limitations and applicable to “All actions for any penalty of forfeiture of any penal statutes” (Rooftop Restorations Inc. v. American Family Mutual Insurance Co., No. 15-2560, D. Colo., 2017 U.S. Dist. LEXIS 17787).
CHARLESTON, S.C. — A genuine issue of material fact exists as to the suitability of a roof covering on a homeowner’s roof in order to trigger a roofing limitation endorsement in a commercial general liability insurance policy that would preclude coverage for damages, a South Carolina federal judge held Feb. 6 (Williford Roofing Inc. v. Endurance American Specialty Insurance Co., et al., No. 16-01830, D. S.C., 2017 U.S. Dist. LEXIS 16033).
NEW ORLEANS — Parties in an insurance dispute recently asked the Fifth Circuit U.S. Courts of Appeals to determine whether a federal district court erred in determining that an insurer owed an additional insured a duty to defend in an underlying construction defects lawsuit (Lyda Swinerton Builders Inc. v. Oklahoma Surety Co., No. 16-20195, 5th Cir.).
ITHACA, N.Y. — A New York justice on Feb. 1 determined that an insurer’s claims against a company with which the insured contracted to install a sprinkler system must be dismissed because the applicable contract between the insured and the defendant included a subrogation waiver that bars the insurer from seeking reimbursement from the defendant (Philadelphia Indemnity Insurance Co., as subrogee of Country Club of Ithaca, NY Inc. v. Buffalo Hotel Supply Co. Inc., et al., No. EF2015-0101, N.Y. Sup., Tompkins Co., 2017 N.Y. Misc. LEXIS 346).
ORLANDO, Fla. — On reconsideration, a Florida federal judge ruled Feb. 6 that a commercial general liability insurer had a duty to defend a lawsuit over damage to a condominium complex because the subcontractor exception negates application of the “your work” exclusion (Evanston Insurance Co. v. DiMucci Development Corporation of Ponce Inlet Inc. and Towers Grande Condominium Association, No. 15-486, M.D. Fla., 2017 U.S. Dist. LEXIS 16154).
SALEM, Ore. — Addressing the state’s requirements for a plaintiff to recover attorney fees from an insurer in a coverage lawsuit, the Oregon Supreme Court ruled Feb. 2 that a homeowner pursuing a claim for a leaky sink can be awarded attorney fees without a formal judgment (Cary Long v. Farmers Insurance Company of Oregon, No. S063701, Ore. Sup.).
SAN FRANCISCO — A policy’s continuous or progressive injury exclusion bars coverage for two underlying suits filed against an insured because the insured’s repair work to address the water intrusion problems was completed more than four years before the inception of the policy, a California federal judge said Jan. 31 (Saarman Construction Ltd. v. Ironshore Specialty Insurance Co., No. 15-3548, N.D. Calif., 2017 U.S. Dist. LEXIS 13633).
EAST ST. LOUIS, Ill. — Allegations of an insured’s failure to perform do not constitute an “occurrence” triggering coverage under a commercial general liability insurance policy, an Illinois federal judge ruled Jan. 31, agreeing with the insurer that they “are nothing more than claims of disappointed expectations in the performance of a construction contract” (Owners Insurance Co. v. James C. Warren d/b/a Warren Exterior and Remodeling, et al., No. 15-00349, S.D. Ill., 2017 U.S. Dist. LEXIS 13171).
TALLAHASSEE, Fla. — A process under Florida Statutes Chapter 558 is a civil proceeding and, therefore, a “suit” under commercial general liability insurance policies, an insured argues in its Jan. 23 reply brief to the Florida Supreme Court because the Chapter 558 process is a required part of construction defect litigation and is “tied directly to any litigation that follows the process” (Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., No. SC16-1420, Fla. Sup.).
SOUTH BEND, Ind. — An insurer has no duty to defend or indemnify an insured against claims regarding damage from its glass-cleaning work to homeowners’ windows and doors, an Indiana federal judge ruled Jan. 30 because the “damage to your work” exclusion eliminates coverage for claims of damage to the windows and doors and their replacement (The Celina Mutual Insurance Co. v. Daniel L. Gallas, et al., No. 14-1616, N.D. Ind., 2017 U.S. Dist. LEXIS 12166).
MIAMI — A Florida federal judge on Jan. 30 found that a directors and officers liability insurance policy’s insured vs. insured exclusion precludes coverage for underlying claims against a condominium association insured and one of its board of directors arising from the installation of hurricane impact windows and doors, granting the insurer’s motion for judgment on the pleadings (The Marbella Condominium Association, et al. v. RSUI Indemnity Co., No. 16-80987, S.D. Fla., 2017 U.S. Dist. LEXIS 12363).
BALTIMORE — Because an issue of fact exists regarding whether insureds seeking additional coverage for water and mold damages to their home were fully compensated for additional living expenses, a Maryland federal judge on Jan. 23 denied an insurer’s motion for summary judgment as it pertained to the issue of additional living expenses (Richard Kurland, et al. v. ACE American Insurance Co., et al., No. 15-2668, D. Md.; 2017 U.S. Dist. LEXIS 10065).
GEORGETOWN, Del. — A comprehensive general liability insurer has no duty to defend a contractor against a town’s allegations of breach of contract and breach of warranty because the town does not allege that its soils had been damaged by the contractor’s defective irrigation system, a Delaware trial judge ruled Jan. 20 (David A. Bramble Inc. v. Old Republic General Insurance Corp., No: S16C-06-025 ESB, Del. Super., Sussex Co.; 2017 Del. Super. LEXIS 34).