CONCORD, N.H. — An insurer has no duty to indemnify an insured for the costs of replacement roofs and the cost of shingles, a federal judge in New Hampshire ruled July 23; however, the insurer has a duty to indemnify the insured for attorney fees awarded against it in arbitration (John Wallace, et al. v. Nautilus Insurance Co., No. 18-747, D. N.H., 2019 U.S. Dist. LEXIS 122219).
TOLLAND, Conn. — Questions of fact exist as to whether an insured home’s basement walls experienceda sudden falling or caving in as the result of defective concrete used when the foundation walls were built, a Connecticut judge said July 11 in denying the homeowners insurer’s motion for summary judgment (Alan J. Gnann, et al. v. United Services Automobile Association, No. CV166010517S , Conn. Super., 2019 Conn. Super. LEXIS 1955).
TAMPA, Fla. — A commercial general liability insurer on July 29 sued its insured contractor and an organization that fights homelessness, seeking a declaration from a Florida federal court of its duties against claims arising out of defective restoration work and installation of a roof (Evanston Insurance Co. v. Coast to Coast Construction Specialties Inc., et al., No. 19-01845, M.D. Fla.).
PHOENIX — Testimony from an attorney with experience in legal fields related to construction-related insurance claims “passes muster” under Federal Rule of Evidence 702, a federal judge in Arizona ruled Aug. 2, denying an insurer’s motion to preclude the expert testimony in its dispute with contractors over repairs to water damage (Adams Craig Acquisitions LLC, et al. v. Atain Specialty Insurance Co., et al., No. 18-00817, D. Ariz., 2019 U.S. Dist. LEXIS 129537).
DENVER — A Colorado appeals panel on Aug. 1 affirmed a lower court’s denial of an insurer’s motion to intervene in a construction defects case following an insured’s settlement agreement because the insured was entitled to protect itself with the potential of coverage being denied and the settlement offer having been refused by the insurer (Bolt Factory Lofts Owners Association Inc. v. Auto-Owners Insurance Co., No. 18CA1201, Colo. App., 2019 Colo. App. LEXIS 1126).
TRENTON, N.J. — A commercial general liability policy’s ongoing operations exclusion precludes coverage for construction defects to a swim club and pavilion building, a federal judge in New Jersey ruled July 31, also finding that a subcontractor exception to the “your work” exclusion does not apply to the ongoing operations exclusion (PJR Construction of New Jersey Inc. v. Valley Forge Insurance Co., et al., No. 17-4219, D. N.J., 2019 U.S. Dist. LEXIS 127973).
RICHMOND, Va. — In an insurance bad faith action against an insurer for its failure to defend an insured in a construction defect action, the Fourth Circuit U.S. Court of Appeals on July 25 remanded to a district court for instructions in accordance with the South Carolina Supreme Court’s ruling that “denying liability and/or asserting good faith in the answer does not, standing alone,” waive attorney-client privilege for claim files addressing the insurer’s reinsurance and reserves (In re: Mt. HawleyInsuranceCo., No. 18-1401, 4th Cir., 2019 U.S. App. LEXIS 22356).
ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on July 26 denied an excess insurer’s request for a panel rehearing and an en banc rehearing of its request to vacate a ruling that required it to pay $2.76 million to the maker and designer of air ducts that are allegedly defective (National Union Fire Insurance Company of Pittsburgh, PA, et al. v. Donaldson Company Inc. v. Federal Insurance Co., No. 18-1063, 8th Cir., 2019 U.S. App. LEXIS 22404).
DENVER — The 10th Circuit U.S. Court of Appeals on July 24 reversed and remanded a lower court’s finding that a professional liability insurance policy’s faulty workmanship exclusion precluded coverage for a lawsuit alleging that the insured poorly designed and constructed a fisheries enhancement project and the court’s grant of summary judgment on the insured’s claim of statutory bad faith but affirmed the dismissal of the insured’s common-law bad faith claim (Rockhill Insurance Company v. CFI-Global Fisheries Management, et al., Nos. 18-1201 & No. 18-1207, 10th Cir., 2019 U.S. App. LEXIS 22049).
DALLAS — A commercial liability insurer sued its insureds and a homeowners association on July 22 in a Texas federal court, seeking a declaration that it has no duty to defend or indemnify an underlying construction defect lawsuit, citing “damage to property,” “damage to your product” and “damage to your work” exclusions (Mid-Continent Casualty Co. v. Billingsley Residential LLC, et al., No. 19-1745, N.D. Texas).
HARRISBURG, Pa. — Because there was alleged damage to other property, not property that an insured contracted to provide, and that damage was caused by an accident, a flood, there are claims for property damage caused by an “occurrence,” a panel of the Pennsylvania Superior Court held July 22, reversing the entry of judgment that a commercial general liability insurer has no duty to defend or indemnify (Pennsylvania Manufacturers Indemnity Co. v. Pottstown Industrial Complex LP, et al., No. 3489 EDA 2018, Pa. Super., 2019 Pa. Super. LEXIS 729).
JACKSONVILLE, Fla. — A commercial general liability insurer has a duty to defend an additional insured in a construction defects case, a Florida federal judge ruled July 12; however, the judge stayed the issue of the insurer’s duty to indemnify (Auto-Owners Insurance Co. v. Environmental House Wrap Inc., et al., No. 17-817, M.D. Fla., 2019 U.S. Dist. LEXIS 115898).
By David B. Robbins and Jason M. Crawford
HOUSTON — In a dispute over the construction of a public library, a Texas federal judge held July 12 that commercial general liability insurance policies cover only an arbitration award for the costs of repairing or replacing ceiling tiles, not for repairing or replacing a roof or exterior stucco and, thus, granted in part summary judgment to the insurer (Liberty Surplus Insurance Corp. v. Century Surety Co., et al., No. 18-1444, S.D. Texas, 2019 U.S. Dist. LEXIS 116093).
OKLAHOMA CITY — An insurer is not entitled to summary judgment on the issue of coverage and fails to establish that any policy exclusions preclude coverage for an underlying construction defects case, an Oklahoma federal judge ruled July 12, also denying summary judgment to the insurer on an insured’s bad faith counterclaim (Country MutualInsuranceCo. v. AAA Construction LLC, No. 17-486, W.D. Okla., 2019 U.S. Dist. LEXIS 115935).
NEW ORLEANS — In an unpublished per curiam opinion, a Fifth Circuit U.S. Court of Appeals panel on July 9 ruled that a federal district court did not err in dismissing a third-party claimant’s insurance bad faith lawsuit against an insurer because the claimant was not an insured under a professional liability policy (Team Contractors LLC v. Waypoint Nola LLC v. Catlin Insurance Co. Inc., No. 18-30419, 5th Cir., 2019 U.S. App. LEXIS 20317).
JACKSONVILLE, Fla. — A subcontractor’s commercial general liability insurer failed to establish that the amount-in-controversy requirement has been met, a Florida federal judge held July 8, dismissing the insurer’s declaratory judgment lawsuit against its insured, a contractor and homeowners regarding coverage for stucco damages (Southern-OwnersInsuranceCo. v. Maronda Homes Inc. of Florida, et al., No. 18-1305, M.D. Fla., 2019 U.S. Dist. LEXIS 112528).
LOS ANGELES — An insurer alleges in a July 3 complaint filed in a California federal court that a consulting group and others are responsible for a retail mall project’s property damages arising out of soil settlement caused by their faulty workmanship (Ironshore Specialty Insurance Co. v. Kling Consulting Group Inc., No. 19-05787, C.D. Calif.).
CHARLESTON, S.C. — In a July 3 complaint, a commercial general liability insurer seeks a declaration from a South Carolina federal court that it has no duty to defend or indemnify claims arising out of construction defects because the “property damage” fell outside the policy period or is excluded (Main Street America Assurance Co. v. Orellana Stucco Contractor LLC, et al., No. 19-1906, D. S.C.).
ROCKVILLE, Conn. — A Connecticut judge on May 31 denied a homeowners insurer’s motion to strike bad faith and unfair settlement practices claims after determining that the insureds, who are seeking coverage for the deterioration of their home’s foundation walls, stated sufficient facts in support of the claims (Rhonda Prucker, et al. v. American Economy Insurance Co., et al., No. CV186013630S, Conn. Super., Tolland Jud. Dist., 2019 Conn. Super. LEXIS 1530).