On May 9, 2018, in an unpublished opinion, the Ninth Circuit held that the proverbial London Bridge should be near collapse for an insured owner to successfully obtain insurance coverage for same. In American Economy Insurance Co. v. CHL LLC, No. 16-35606, an owner appealed the district court’s decision in a declaratory coverage action
Oregon Court of Appeals Broadens “Four Corners” Rule in Construction Defect Insurance Coverage Cases
In a recent Oregon Court of Appeals decision, the court likely eased the burden for contractors seeking a defense under insurance policies in which they have been named as an additional insured. In my latest article for the Daily Journal of Commerce, I examine the decision, which expands upon a 2016 Oregon Supreme Court
A Lawyer’s Checklist for Starting Strong
In the push to get a construction project started, important management tasks may be overlooked or subordinated by “higher priority” tasks, and the importance of completing many of those tasks may not become apparent unless there is a legal dispute. In my latest article for the Daily Journal of Commerce, I provide a brief
Coverage for Crane Damage Proves Tricky
Following a presentation I made at a Seminar Group conference in Oregon on crane easements, one of my colleagues brought to my attention the recent NY case of Lend Lease (US) Construction LMB Inc. v. Zurich American Insurance Co. The NY Court of Appeals found that damage caused to a tower crane when
Is Late Notice A Big Deal? Ninth Circuit Asks For An Opinion From CA Supreme Court On Insurance Question
So, what’s the big deal if you’re a little “late” in giving your insurer notice of the claim or lawsuit against your company? That’s the question, albeit in essence, that the Ninth Circuit has posed to the California Supreme Court recently in an Order Certifying Questions, Pitzer College v. Indian Harbor Insurance Co.
Specifically, the Ninth Circuit is asking for legal insight as to the following:
1. Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis? May common law rules, other than unconscionability not enshrined in statute, regulation, or the constitution, be fundamental public policies for the purpose of choice-of-law analysis?
2. If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can a consent provision in a first-party claim insurance policy be interpreted as a notice provision such that the notice-prejudice rule applies?
One Unanticipated Cost of Being an Owner-Builder in California: Liability for Retained Control over Safety
Many times I hear from people who want to “save money” and serve as their own “owner-builder” under the exemption to the California Contractor’s Licensing law, which generally requires that any “construction” work over $500 to be performed by a licensed California contractor in the absence of an exemption. (Bus. & Prof. Code section
“All Risk” Coverage Is Not Equal to “All Loss” Coverage Under Customary Provisions in California Builder’s Risk Policies
A common insurance question asked by our owner/developer clients when they discover that their completed project has defects is whether their own insurance will cover the cost to fix the defect or any damage from the defect. While trying hard not to sound like the proverbial lawyer, we often have to say “it depends.” What
Insurance Coverage Decision a Major Victory for the Construction Industry
My partner, Scott Kaplan, discusses the recent Oregon Court of Appeals in FountainCourt Homeowners’ Ass’n v. FountainCourt Development, LLC case in the Daily Journal of Commerce. On August 6, the Oregon Court of Appearls, handed down a decision making clear that standard form liability insurance policies cover construction defect claims so long any
No Duty By Insurer: Affirmation That There Must Be Damage To Other Property, Not Just Defective Workmanship In CA
California has held for at least a decade that in order for there to be insurance coverage under a standard Comprehensive General Liability for a claim arising out of a construction project, including a duty to defend by the insurer, there must be damage to other property, not solely to the property on which the insured worked. (See F&H Construction v. ITT Hartford Ins. Co. (2004) 118 Cal.App.4th 364.) The recent decision of Regional Steel Corporation v. Liberty Surplus Insurance Corporation (May 16, 2014, No. BC464209) __ Cal.App.2d. __ [2014 WL 2643242] (Regional Steel), in the California Court of Appeal highlights a not uncommon problem in construction actions, and several ramifications for owner/general contractors (GCs) to consider at project inception to alleviate and mitigate these issues are outlined below.
Do You Understand all that Insurance Jargon in Contract?
In my latest Daily Journal of Commerce Construction column, I discuss insurance jargon in contracts and use Commercial General Liability or “CGL” policies as an example. The terms “bodily injury,” “personal or advertising injury,” and “property damage” all have specific meanings in CGL policies. Since this language is not always intuitive, it is best to