Lexis Legal News : Mealey's Construction Defects Insurance : Lawsuit Filings, Litigation, Settlements, Verdicts and Court News

Mealey's Construction Defects Insurance

January 18, 2019
Defective Pool Work Is Not ‘Property Damage’ Under Insurance Policy

SAVANNAH, Ga. — Claims that work on a pool resulted in a faulty and unusable pool are not claims for covered “property damage,” a Georgia federal judge ruled Jan. 17, granting summary judgment to an insurer on declaratory judgment, breach of contract and bad faith claims (Delma Cowart v. Nautilus Insurance Co., NO. 17-142, S.D. Ga., 2019 U.S. Dist. LEXIS 8531).
January 11, 2019
New Mexico Federal Judge Grants Summary Judgment To Insurer On Negligence Claim

ALBUQUERQUE, N.M. — In a dispute over coverage for water damage, a New Mexico federal judge on Jan. 8 denied summary judgment to a homeowners insurer on statutory claims and negligence asserted under the New Mexico Unfair Practices Act and the New Mexico Unfair Insurance Practices Act but granted summary judgment on a negligence claim (Hector Fava, et al. v. Liberty Mutual Insurance Corp., No. 17-456, D. N.M., 2019 U.S. Dist. LEXIS 4158).
January 10, 2019
Insured’s Claim For Concrete Flooring ‘Pop-Outs’ Is Not Covered ‘Property Damage’

DENVER — “Pop-outs” in a concrete floor “did not physically injure or damage any tangible property other than the floor” and, thus, did not constitute “property damage” under a commercial general liability insurance policy, a Colorado federal judge held Jan. 8 (Kalman Floor Co. v. Old Republic General Insurance Corp., No. 17- 01703, D. Colo., 2019 U.S. Dist. LEXIS 3319).
January 10, 2019
Federal Judge: Leaks Not Covered ‘Property Damage’ Under Insurance Policy

BOSTON — Leaks in a condominium unit were not “property damage” that occurred during a policy period, a Massachusetts federal judge held Jan. 8, granting summary judgment to an insurer on another insurer’s breach of contract claim (Clarendon National Insurance Co. v. Philadelphia Indemnity Insurance Co., No. 17-12541, D. Mass., 2019 U.S. Dist. LEXIS 3322).
January 9, 2019
Fact Issues Exist On Bad Faith Claim Alleged Against Insurer In Water Damage Suit

ALBUQUERQUE, N.M. — An insurer is not entitled to summary judgment on a bad faith claim alleged by insureds who maintain that they are entitled to coverage for water damage because the insureds presented sufficient facts from which a jury could find that the insurer’s coverage denial was made in bad faith, a New Mexico federal judge said Dec. 20 (Hector Fava, et al. v. Liberty Mutual Insurance Corp., No. 17-456, D. N.M., 2018 U.S. Dist. LEXIS 215009).
January 7, 2019
Judge: Contract Liability Exclusion Bars Coverage For Repairs To Faulty Work

BOSTON — A contract liability exclusion precludes coverage for any work assumed by a general contractor to repair a subcontractor’s defective work in a gymnasium floor, a Massachusetts federal judge ruled Jan. 4, granting summary judgment to an insurer on breach of contract and declaratory judgment claims (Lee Kennedy Co. Inc. v. Arch Insurance Co., No. 17-10698, D. Mass., 2019 U.S. Dist. LEXIS 1448).
January 2, 2019
Defects, Errors, Omissions Exclusion Bars Insurance Claim, Federal Judge Says

HOUSTON — A defects, errors and omissions clause excludes coverage for a claim regarding damage to windows during a construction project, a Texas federal judge ruled Dec. 28, finding that an exception does not reinstate coverage (Balfour Beatty Construction LLC v. Liberty Mutual Insurance Co., No. 17- 02477, S.D. Texas, 2018 U.S. Dist. LEXIS 217565).
December 21, 2018
Insurer Files Suit Over Duty To Defend, Indemnify Construction Defects Verdict

DALLAS — A commercial general liability insurer filed a declaratory judgment action on Dec. 11 in a Texas federal court arguing that it has no duty to defend or indemnify a verdict in a construction defects lawsuit over water damage to a homeowner’s property (Mid-Continent Casualty Co. v. English Heritage Homes of Texas Inc., et al., No. 18-3255, N.D. Texas).
December 19, 2018
Judge: Insurer Owes Defense As Damage To Your Work; Stucco Exclusions Do Not Apply

TAMPA, Fla. — A commercial general liability insurer has a duty to defend an insured against breach of contract and warranty claims arising out of construction defects in a condominium project, a Florida federal judge ruled Dec. 18, finding that damage to your work and exterior insulation finishing system (EIFS) and stucco exclusions do not bar coverage (Southern Owners Insurance Co. v. Gallo Building Services Inc., et al., No. 15-01440, M.D. Fla., 2018 U.S. Dist. LEXIS 212961).
December 14, 2018
Lack Of Notice Prejudiced Insurer, New Hampshire Federal Judge Concludes

CONCORD, N.H. — A commercial general liability insurer established that an insured contractor breached its duty to notify the insurer of dissatisfaction in its work and an eventual lawsuit that resulted in a default judgment against it, a New Hampshire federal judge ruled Dec. 11, finding that the breach precludes coverage for the insured (Nautilus Insurance Co. v. Gwinn Design and Build LLC, et al., No. 18-633, D. N.H., 2018 U.S. Dist. LEXIS 208437).
December 13, 2018
Insurer Fails To Show ‘Work Product’ Exclusions Bar Construction Defects

NEW ORLEANS — A commercial general liability insurer failed to establish that “damage to property,” “damage to your product” and “damage to your work” exclusions preclude coverage for alleged defects in the construction of residential property, a Louisiana federal judge ruled Dec. 10, denying summary judgment to the insurer (Starr Surplus Lines Insurance Co. v. Banner Property Management Co., et al., No. 18-5635, E.D. La., 2018 U.S. Dist. LEXIS 207808).
December 13, 2018
Panel Affirms, Reverses Insurance Coverage Rulings In Construction Defects Case

SEATTLE — In a dispute over coverage for construction defects to a mixed-use condominium building, a Washington appeals panel on Dec. 10 reversed dismissal of an additional insured’s duty to defend and bad faith claims against one commercial general liability insurer but affirmed dismissal of the same claims against two other CGL insurers (Zurich American Insurance Co. v. Ledcor Industries [USA] Inc., et al., No. 76405-5-I, Wash. App., Div. 1, 2018 Wash. App. LEXIS 2769).
December 7, 2018
Coverage Owed For $910,148 Default Judgment, Appellant Argues To 4th Circuit

RICHMOND, Va. — The obtainer of a $910,148 default judgment entered against a design company in a negligent design dispute recently asked the Fourth Circuit U.S. Court of Appeals to hold the design company’s insurer responsible for the judgment, $22,210 in attorney fees and $370 in court costs (Gateway Residences at Exchange, LLC v. Illinois Union Insurance Company, No. 18-1491, 4th Cir.).
December 7, 2018
Panel: Insurer’s Settlement, Reimbursement By Reinsurer Did Not Breach Contract

NEW YORK — In affirming the dismissal of breach of contract and bad faith claims, the Second Circuit U.S. Court of Appeals on Dec. 6 agreed with a lower judge that an insurer’s settlement of a flood damage claim arising out of construction work and its reimbursement under a captive reinsurance agreement did not breach its contract to insureds (Keller Foundations LLC, et al. v. Zurich American Insurance Co., No. 18-1280, 2nd Cir., 2018 U.S. App. LEXIS 34345).
December 6, 2018
Judge Dismisses Insureds’ Breach Of Contract Claim In Concrete Decay Dispute

HARTFORD, Conn. — In a concrete decay case, a Connecticut federal judge on Dec. 4 dismissed claims for breach of contract and violations of the Connecticut Unfair Insurance Practices Act (CUIPA) and the Connecticut Unfair Trade Practices Act (CUTPA) against an insurer because the policies cover only loss that has occurred suddenly and accidentally (Richard T. Hyde, et al. v. Allstate Insurance Co., et al., No. 18-00031, D. Conn., 2018 U.S. Dist. LEXIS 204835).
December 6, 2018
Washington Federal Judge: Insurer Has No Duty To Indemnify $1.7M Judgment

SPOKANE, Wash. — A commercial general liability insurer has no duty to indemnify a $1.7 million judgment against an insured for unfinished construction work, a Washington federal judge ruled Nov. 26, finding that an independent contractors limitation of coverage endorsement (ICL) relieves the insurer of its duty (The Cincinnati Specialty Underwriters Insurance Co. v. Milionis Construction Inc., et al., No. 17-00341, E.D. Wash., 2018 U.S. Dist. LEXIS 199658).
November 30, 2018
Insured Failed To Comply With Condition Precedent To Coverage, Panel Affirms

SAN FRANCISCO — An insured failed to comply with the Contractors Special Conditions in its insurance policy before an underlying construction defects lawsuit was filed, the Ninth Circuit U.S. Court of Appeals held Nov. 28, affirming a lower court’s ruling that an insurer has no duty to duty to defend and indemnify (ProBuilders Specialty Insurance Company RRG v. Phoenix Contracting Inc. and FHC LLC, No. 17-35861, 9th Cir., 2018 U.S. App. LEXIS 33384).
November 29, 2018
Mold Damage Is Clearly Excluded From Policy Coverage, Federal Judge Says

ABINGDON, Va. — A Virginia federal judge on Nov. 28 determined that no coverage is afforded under a homeowners policy for mold damage because the policy at issue clearly excludes coverage for mold (Chad Poore et al., v. Main Street America Assurance Co. et al., No. 18-22, W.D. Va., 2018 U.S. Dist. LEXIS 200998).
November 29, 2018
Florida Panel Again Reverses, Remands $542,883 Judgment In Sinkhole Dispute

LAKELAND, Fla. — A Florida appeals panel on Nov. 16 again reversed and remanded a $542,883.49 judgment in favor of the insureds in a sinkhole coverage dispute, finding that its determination that the jury instructions were confusing and may have misled the jury was not affected by a 2016 decision by the Florida Supreme Court (Citizens Property Insurance Corp. v. Rona Salkey, et al., No. 2D14-3002 consolidated with No. 2D14-5077, Fla. App., 2nd Dist., 2018 Fla. App. LEXIS 16438).
November 28, 2018
Insureds’ Suit Dismissed; Basement Walls Are Not Caving In As Required By Policy

HARTFORD, Conn. — No coverage is afforded under a policy’s collapse provision for the cracking in the basements walls of an insured home caused by a chemical reaction in the concrete because the policy specifically requires a collapse to be an “abrupt falling down or caving in,” a Connecticut federal judge said Nov. 27 in dismissing the insureds’ complaint (Lawrence Cockill, et al. v. Nationwide Property and Casualty Insurance Co., No. 18-254, D. Conn., 18-254, 2018 U.S. Dist. LEXIS 200172).