Mealey's Construction Defects Insurance : Mealey's : Legal News & Analysis

Mealey's Construction Defects Insurance

August 10, 2023
Judge Dismisses Suit Over Fire Suppression Leak Coverage After Notice Of Settlement

TAMPA, Fla. — A federal judge in Florida has dismissed without prejudice a property owner and its general contractor’s suit seeking coverage for the repair of leaks in a fire suppression system installed in a mixed-use building and the resulting water damage after the parties indicated that they had reached a settlement.
August 10, 2023
Insurer’s Coverage Suit, Contractor’s Third-Party Claims Dismissed After Settlement

DENVER — A federal judge in Colorado has terminated an excess insurer’s contribution suit against a general contractor and others stemming from the settlement of an underlying arbitration arising from the alleged negligent design and construction of a residential and commercial building and the contractor’s third-party claims against its subcontractors after the parties notified the court that they had reached a global settlement.
August 10, 2023
3rd Circuit Dismisses Glass Installer’s Appeal Of Ruling For CGL, Umbrella Insurers

PHILADELPHIA — The Third Circuit U.S. Court of Appeals ordered the dismissal of a glass installer’s appeal of a June ruling that its commercial general liability and umbrella insurers are not liable to cover defense and indemnity costs it incurred in settling an underlying action alleging that a glass curtain wall it installed became visibly obstructed by a dark “dripping” material because there was no property damage caused by an occurrence during the policy periods.
August 10, 2023
Judge Grants Insurer’s Motion To Set Aside Default In Contractor’s Coverage Suit

FLORENCE, S.C. — Noting, among other things, that the South Carolina Department of Insurance, which accepted service on behalf of an insurer, has no confirmation that it received the complaint and summons, a federal judge in the state on Aug. 9 granted the insurer’s motion to set aside a default entered against it in a contractor’s coverage suit stemming from water intrusion and other construction defect issues at a mixed-use development project.
August 10, 2023
California Panel Reverses Ruling For Insurer In Builder’s SIR Refund Action

LOS ANGELES — Finding it unclear when a homebuilder exceeded the self-insured retention (SIR) amounts in homebuilders protective policies covering homes in several states, a California appellate panel reversed the trial court’s order sustaining its insurer’s demurrer on statute of limitations grounds of the builder’s suit seeking a refund for excess amounts it paid under the policies.
August 08, 2023
Subcontractor’s Appeal Of Faulty Workmanship Coverage Ruling Dismissed By 9th Circuit

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals has granted a subcontractor’s motion to voluntarily dismiss its appeal of a lower court’s dismissal of its coverage dispute with its commercial general liability insurer stemming from the faulty installation of a foundation system for a new airport concourse and related improvements at Los Angeles International Airport (LAX).
August 08, 2023
Magistrate: Contractor, Subcontractor Must Be Joined To Insurer’s Declaratory Suit

MIAMI — A general contractor and a subcontractor are indispensable parties in a commercial general liability insurer’s declaratory action against the subcontractor’s CGL insurers related to the defense and indemnification of the general contractor in an underlying construction defects suit and, therefore, should be joined to the action, a federal magistrate judge in Florida recommended.
August 08, 2023
Pennsylvania Judge: Defective Work Claims Are Not An Occurrence To Trigger Coverage

STROUDSBURG, Pa. — A Pennsylvania judge found that faulty workmanship claims against an insured are not an occurrence to trigger coverage under its policy, granting the insurer’s motion for summary judgment on its counterclaim that it has no duty to defend or indemnify.
August 07, 2023
10th Circuit Finds No Coverage For Contractor Under CGL Policy, Reverses

DENVER — A contractor’s failure to install fire sprinklers when adding living quarters to a barn constituted property damage, but that damage was not caused by an “occurrence”; therefore, the contractor’s commercial general liability insurer owes no duty to defend it against an underlying lawsuit, the 10th Circuit U.S. Court of Appeals ruled Aug. 4, reversing a lower court’s grant of judgment on the pleadings in favor of the contractor.
August 03, 2023
Judge Denies Insurer JMOL Or New Trial, Insured Interest After Water Damage Verdict

MOBILE, Ala. — A federal judge in Alabama on Aug. 2 denied an insurer’s renewed motion for judgment as a matter of law or a new trial following a nearly $170,000 verdict against it in an insurance dispute over the handling of a property damage claim after Hurricane Sally, adopting as its own the insured church’s argument that it proved through expert testimony that its claimed losses were covered under the policy and that the jury was properly instructed as to causation.
July 27, 2023
2nd Circuit Issues Mandate After Parties In Roof Coverage Suit Withdraw Appeal

NEW YORK — The Second Circuit U.S. Court of Appeals on July 26 issued a mandate ordering the withdrawal of former homeowners’ appeal of a New York federal magistrate judge’s finding that insurers owe no duty to defend them in a lawsuit stemming from their alleged failure to disclose structural and environmental issues in connection with a home they sold.
July 27, 2023
Louisiana Federal Judge Denies Contractor’s Insurer New Trial In Water Intrusion Suit

NEW ORLEANS — A subcontractor’s insurer’s answer to a contractor’s insurer’s amended complaint filed after it moved for dismissal of the original complaint “did not moot its pending motion to dismiss,” a federal judge in Louisiana ruled July 26 in denying a motion for a new trial or reconsideration of the ruling dismissing its suit to recover damages it paid stemming from water damage caused by the subcontractor’s negligence in performing work on a home’s roof.
July 26, 2023
Damage Caused By Insured’s Fracking Work Is Not Occurrence, Panel Reiterates

PHILADELPHIA — Following a panel rehearing, a Third Circuit U.S. Court of Appeals panel on July 25 reiterated that an insurer owes no coverage to its insured for damages to natural gas wells caused by the insured’s fracking work because neither faulty workmanship nor failure to perform a contract in a workmanlike manner can be construed as an occurrence as required by the policy.
July 25, 2023
Farmers Cooperative Appeals Rulings In Defective Silo Construction Coverage Case

LAREDO, Texas — A farmers cooperative has appealed to the Fifth Circuit U.S. Court of Appeals a Texas federal judge’s June ruling that the insurer of a contractor it hired to build two grain silos has no duty to indemnify the contractor in the cooperative’s underlying lawsuit alleging that the construction was defective because the cooperative did not incur any “property” damage to trigger coverage and the policy exclusions bar coverage even if the underlying damages were deemed “loss of use” property damage.
July 25, 2023
Glass Installer Appeals Ruling For CGL, Umbrella Insurers To 3rd Circuit

CAMDEN, N.J. — A glass installer has appealed to the Third Circuit U.S. Court of Appeals a New Jersey federal judge’s June ruling that its commercial general liability and umbrella insurers are not liable to cover defense and indemnity costs it incurred in settling an underlying action alleging that a glass curtain wall it installed became visibly obstructed by a dark “dripping” material because there was no property damage caused by an occurrence during the policy periods.
July 25, 2023
Oregon Supreme Court Accepts Homeowners’ Appeal In Defects Coverage Suit

SALEM, Ore. — The Oregon Supreme Court has agreed to review homeowners’ appeal of an appellate court ruling that a commercial general liability insurer has no duty to indemnify them or its contractor insured for a coverage dispute over faulty work performed in building their home.
July 25, 2023
Judge: Roofer Cannot Apply Payments From Other Insurers Toward SIR Endorsement

MIAMI — Because a provision in a commercial general liability policy requires the $150,000 retained limit of the self-insured retention (SIR) endorsement to be paid by the insured, a roofing company cannot apply third-party payments from other insurers toward the limit, a federal judge in Florida ruled in denying the insured’s motion for partial summary judgment in its breach of contract suit against its CGL insurer.
July 25, 2023
Judge Denies Roofing Insurer’s Motion To Reconsider Dismissal Of Declaratory Action

PHILADELPHIA — A federal judge in Pennsylvania has denied an insurer’s request for reconsideration of the dismissal of its declaratory relief action stemming from two negligence and faulty work lawsuits against its roofing contractor insured, saying he “properly interpreted and applied the law, and did not rely upon erroneous factual conclusions” when he dismissed the case sua sponte for lack of jurisdiction.
July 24, 2023
No Additional Abrupt Collapse Coverage Owed, Insurer Argues To 10th Circuit

DENVER — An insurer and its claims service manager argue to the 10th Circuit U.S. Court of Appeals that a building owner insured is owed no coverage under an insurance policy’s additional abrupt collapse coverage, contending that the insured’s building “did not collapse because its structural capacity was not ‘substantially’ or ‘significantly’ impaired.”
July 22, 2023
Judge Rules In Favor Of Engineering Firm, Property Manager In Collapse Dispute

LEXINGTON, Ky. — A federal judge in Kentucky held that an engineering firm is entitled to summary judgment in an insurer’s subrogation lawsuit arising from a parking garage collapse because the insurer’s negligence and misrepresentation claims are barred by the statute of limitations, further granting a property manager’s motion to dismiss the insurer’s fraudulent concealment claim against it.
July 20, 2023
Sufficient Facts Alleged In Support Of Statutory Bad Faith Claim In Defects Suit

GREENBELT, Md. — A Maryland federal judge denied an insurer’s motion to dismiss a claim for statutory bad faith after determining that the insured general contractor alleged sufficient facts in support of its claim that the insurer acted in bad faith by failing to process its claim for coverage of a faulty wall system installed as part of a construction project within 45 days as required under Maryland law.
July 20, 2023
Earth Movement Caused By Faulty Workmanship Or Settling Is Covered, Judge Finds

MINNEAPOLIS — Finding that whether three insurers “intended to create an anti-concurrent causation clause” in their policies’ earth movement definition is “ambiguous,” a federal judge in Minnesota determined that earth movement caused by faulty workmanship or settling is covered by the earth movement coverage extension in the policies, “regardless of if the faulty workmanship and/or settling is the proximate cause of the loss,” granting partial summary judgment to their mutual insured.
July 19, 2023
11th Circuit Dismisses Developer’s Appeal Of Judgment For Insurer

ATLANTA — The 11th Circuit U.S. Court of Appeals has dismissed with prejudice a development company and its owner’s appeal of a lower court ruling granting summary judgment in favor of its commercial general liability insurer in a declaratory relief action over damage caused to a neighboring pond during a construction project after the parties jointly stipulated to the dismissal.
July 18, 2023
California Panel Affirms Dismissal Of Homeowners Insurer, Bank From Construction Row

LOS ANGELES — A California appeals panel has affirmed the dismissal of a homeowners insurer and a mortgage lender from a construction company’s suit seeking to $128,187.34 for work it performed on the homeowners’ house that an arbitrator found was offset by the homeowners’ damages for construction defects, among other things, finding that the company’s claims against the insurer and bank are derivative of its claims against the homeowners and, therefore, barred by the doctrine of claim preclusion.
July 17, 2023
Insurers Refute Argument That Wind-Driven Rain Must Be Treated As ‘Separate’ Peril

SEATTLE — Responding to a condominium owners association insured’s appeal in a water damage repairs coverage suit, insurers argued to the Ninth Circuit U.S. Court of Appeals that the Washington Supreme Court’s recent unanimous ruling Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co. precludes the insured’s argument that wind-driven rain must be treated as a “separate” peril under the policy.