This is No “Accident”: Ohio Court Rules CGL Policy Doesn’t Cover Shoddy Subcontractor Work

One of the ongoing battles in construction defect coverage law around the country is whether a general contractor’s commercial general liability (“CGL”) policy obligates the insurer to defend and indemnify the general contractor in a lawsuit based on faulty work performed—not by the general contractor—but on its behalf by a subcontractor. Yesterday, Ohio joined a small minority of states when its high court ruled that damage from a subcontractor’s faulty work is not an accident triggering an insurer’s defense obligation.
Continue reading...

Pennsylvania Courts Continue To Bar To Coverage For Defective Workmanship Claims

Insurance coverage disputes regarding faulty workmanship construction defects are common throughout the United States. In Pennsylvania, under the Supreme Court’s 2006 decision in Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., property damage claims arising out of poor workmanship are not covered under typical CGL policies. Recently, the court of Appeals for the 3rd Circuit followed Kvaerner, and ruled that a subcontractor’s defective workmanship claim was not covered. In Lenick Constr., Inc. v. Selective Way Ins.
Continue reading...

A Subpoena May Be a Claim if the Insured says It Is

Whether or not there is coverage under a D&O Policy to pay for expenses incurred responding to a governmental subpoena is a recurring question that nets an inconsistent answer from courts around the country. While the question is often fact specific, an Illinois Federal Court held that a D&O policy provided coverage for expenses incurred responding to a subpoena, and in fact, looked outside of the subpoena itself to make that finding. In Astellas US Holding, Inc. v. Starr Indem.
Continue reading...

A Window Opens? Are Defective Product Construction Defect Claims Covered Under Pennsylvania Law?

A recent decision from a Pennsylvania court highlights tension in Pennsylvania law regarding whether a construction defect claim involving consequential damages caused by a defective product involves a covered “occurrence.” Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 2018 WL 2045496 (M.D. Pa. May 1, 2018). In this coverage action, the insured, a window frame manufacturer, sought a declaratory judgment that it was owed coverage for an underlying action brought by a customer that used the window frames to manufacture
Continue reading...

Viking Pump’s Legacy: Virginia Court Holds “All Sums” Approach Applies to Excess “Quota Share” Layer Where Underlying Coverage was Exhausted

A federal judge in Virginia held the New York Court of Appeals decision in In re Viking Pump, Inc., 27 N.Y.3d 244 (N.Y. 2016) allowed for an insurer to apply an “all sums” allocation and seek the full limits of excess insurance policies — that formed part of a multi-year “quota share” layer — in a single year, without first establishing that the claims constituted a single loss or occurrence that is covered in whole or in part under another
Continue reading...

Insurer Obligated to Provide Coverage for DWI Accident Resulting from Fundraising Event

In Philadelphia Indemnity Insurance Company v. Central Terminal Restoration Corp., 2018 WL 992312 (2d Cir. 2018), the Second Circuit found coverage existed for a car accident which resulted from the overserving of alcohol to a patron at an event because it held that the ensuing consequences were unintentional. On April 1, 2013, Central Terminal Restoration Corp. (CTRC) held a fundraising event in association with Dyngus Day, a traditional post-Easter festival that attracts tens of thousands of Polish Americans to Buffalo,
Continue reading...

A Divided Court Finds Additional Insured Coverage is Enforceable Across New York

On March 27, 2018, the New York Court of Appeals, in a matter of first impression for the state’s highest court, held that a direct contract was required to confer automatic additional insured status under common policy language. Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 143 A.D.3d 146 (1st Dep’t 2016), aff’d, __N.Y.3d__, 2018 WL 1473553 (Mar. 27, 2018). Many standard blanket additional endorsements often confer additional insured status on entities “with whom” the
Continue reading...

Insurer Accused of Having Ace Up its Sleeve: Insurer Estopped from Relying on Sublimit Due to Defense Counsel’s Failure to Supplement Discovery Responses in Tort Lawsuit

In Harwell v. Fireman’s Fund Insurance Co. of Ohio, 2016 IL App (1st) 152036, the Illinois Appellate Court refused to allow Fireman’s Fund Insurance Company to assert a policy sublimit because defense counsel retained by Fireman’s Fund to represent its insured in the underlying tort lawsuit failed to inform the tort claimant that the sublimit, and not the full limit, applied. As background, Brian Harwell was injured while working at a construction project supervised by Kipling Development Corporation as a
Continue reading...

Must an Additional Insured Have a Written Contract With the Named Insured to Get Coverage? It Depends Which Court You Ask

There is a growing list of trial court decisions in New York where the courts disagree of whether an additional insured endorsement to an insurance policy requires a written contract between the additional insured and the policy’s named insured for additional insured status to apply. The U.S. District Court for the Southern District of New York recently held in Liberty Mutual Fire Insurance Company v. Zurich American Insurance Company that contractual privity with the named insured was not required. In
Continue reading...

No Prejudice Needed When an Insured Settles Without the Insurer’s Consent

In Travelers Prop. Cas. Co. of Am. v. Stresscon Corp., 2016 Colo. LEXIS 419 (Colo. April 25, 2016), Colorado was faced with a choice: enforce the plain and unambiguous terms of an insurance policy or extend the requirement that an insurer prove it was prejudiced by its insured’s breach of the policy’s conditions before denying coverage. The Colorado Supreme Court choose the former and held that an insurer seeking to deny coverage for a breach of the no-voluntary-payments provision does
Continue reading...