Consequential Damages can be Recovered Against Insurer in Breach of Contract

David Adelstein | Florida Construction Legal Updates | June 1, 2019

In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.”  Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted).   Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract.

In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent.  However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties.

This ruling is valuable to insureds because Citizens Property Insurance, a creature of statute, cannot be sued for first-party bad faith.  However, the Fifth District found that the consequential damages in the form of lost rental income did not require the insured to prove the insurer acted in bad faith, but merely, breached the terms of the policy.   This holding can be extended to other breach of contract actions against an insurer when the insured suffered and can prove consequential-type damages caused by the breach. 

Insurance Policy’s Promise to Advance Claims Expense for Covered Claims Does Not Create a Duty to Defend

Christopher Kendrick and Valerie Moore | Haight Brown & Bonesteel | May 7, 2019

In United Farm Workers of America v. Hudson Insurance Company, (E.D. Cal.) 2019 WL 1517568, the United Farm Workers of America union (UFW) sued Hudson Insurance Company for breach of contract and bad faith arising out of a former employee’s wrongful termination and wage and hour lawsuit.

Hudson provided UFW with Labor Professional Liability Insurance that included employment practices liability coverage. Hudson reserved its rights and agreed to pay an allocated share of the defense costs, citing the terms of its policy. UFW and Hudson agreed to a 50-50 allocation and, defending itself, UFW moved to compel arbitration of the employee lawsuit pursuant to its collective bargaining agreement. However, the trial court found that the only claim subject to arbitration was the employee’s wrongful termination claim, which Hudson contended eliminated the sole covered cause of action.

The employee’s complaint was amended to include class action allegations for the statutory wage and hour claims and the case proceeded to trial, resulting in an adverse judgment of $1.2 million. Hudson paid UFW for the allocated share of the defense costs incurred through the dismissal of the sole covered claim, and disclaimed any obligation for the wage and hour award.

Hudson retained Haight, Brown & Bonesteel to defend the company against the subsequent bad faith lawsuit brought by the UFW, which alleged that Hudson wrongfully failed to defend or indemnify the union for the employees’ lawsuit. Besides the $1.2 million wage and hour award, UFW claimed in excess of $800,000 incurred defending itself as damages.

UFW and Hudson brought cross-motions for summary judgment, with UFW seeking summary adjudication on the duty to defend. UFW argued that Hudson had a duty to defend the entirety of the employee lawsuit based on the mere potential for coverage, which was not extinguished by the partial grant of UFW’s motion to compel arbitration. (Citing Gray v. Zurich Ins. Co. (1966) 65 Cal.2d 263; Montrose Chem. Corp. v. Super. Ct. (1993) 6 Cal. 4th 287; and Buss v. Super. Ct. (1997) 16 Cal.4th 35.) UFW argued that Hudson’s failure to do so amounted to a bad faith breach of contract, exposing Hudson to the full amount of the defense costs, the resulting judgment, UFW’s own attorney’s fees for suing Hudson under Brandt v. Super. Ct. (1985) 37 Cal.3d 813, and other damages.

Hudson’s cross-motion for summary judgment asserted that there was no duty to defend under the terms of its policy, which expressly stated that UFW had the duty to defend. Under the policy, Hudson was only obligated to advance defense expenses for covered claims, subject to an allocation based on the respective liabilities and further subject to reimbursement in the event of an uncovered result, none of which translated into a duty to defend. (Citing Jeff Tracy, Inc. v. United States Spec. Ins. Co. (C.D. Cal. 2009) 636 F.Supp.2d. 995; and Petersen v. Columbia Casualty Company (C.D. Cal.) 2012 WL 5316352.) Further, although the employee’s original claim for wrongful termination was a covered claim under the Hudson policy’s definition of Wrongful Employment Practices, Hudson argued that none of the statutory wage and hour claims that remained after wrongful termination was ordered to arbitration came within the policy’s Wrongful Acts, Wrongful Offenses or Wrongful Employment Practices coverages. (Citing California Dairies v. RSUI Indem. Co. (E.D. Cal. 2009) 617 F.Supp.2d 1023.)

Consequently, Hudson contended that its payment after the entry of judgment, limited to an allocated share of the defense expense, and its disclaimer of coverage for the wage and hour award, were entirely proper and not in breach of the contract. In addition, Hudson uncovered the existence of misrepresentations in UFW’s application for the insurance during discovery, which Hudson argued voided the policy. (Citing Imperial Cas. Co. v. Sogomonian (1988) 198 Cal.App.3d 169; and Thompson v. Occidental Life (1973) 9 Cal.3d 904.) Without coverage or a breach of contract, Hudson argued that there could be no bad faith.

The district court agreed with Hudson, denying UFW’s motion for summary adjudication on the duty to defend and granting Hudson’s cross-motion for summary judgment. The court found that there was no duty to defend under the terms of the policy, which imposed the duty to defend on the insured and not the insurer. The court agreed that Hudson’s obligation was limited to payment for the cost of defending claims actually covered by the policy, and the award for wage and hour violations did not come within any of the policy’s coverages. Additionally, the court found that UFW made material misrepresentations in its application for insurance, holding that the contract was void. Because there was no coverage there was no breach of contract, and the cause of action for breach of the implied covenant of good faith and fair dealing had to fail as well, entitling Hudson to summary judgment.

This document is intended to provide you with information about insurance law related developments.The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.

Federal Court Rules Contractor Is Not Intended Third-Party Beneficiary under Owner-Engineer Agreement

Amandeep Kahlon | Buildsmart | April 23, 2019

In March, a Massachusetts federal court addressed whether a design-builder contractor could recover for breach of contract under an intended third-party beneficiary theory against a design firm hired by the project owner to complete 30% designs. In Arco Ingenieros, S.A. DE C.V. v. CDM International Inc., a Salvadoran contractor entered into a design-build agreement with the U.S. government to build eight schools and a health clinic in El Salvador as part of a hurricane relief effort.

The design-build agreement included 30% designs, which were to form the design criteria for the project. The agency had contracted separately with a U.S. engineering firm via a task order to complete the 30% designs. After construction started, the contractor alleged the designs provided by the agency were defective and did not actually constitute 30% designs. Ultimately, the contractor filed suit against the agency and the engineer. As one theory of liability, the contractor claimed to be a third-party beneficiary under the task order between the agency and the engineer. The engineer moved to dismiss the contractor’s complaint arguing that the contractor was not an intended third-party beneficiary under the task order.

The federal court agreed and entered an order dismissing the contractor’s breach-of-contract claim against the engineer. The court reasoned that nothing in the task order evidenced an intent that the engineer’s design work was to benefit the contractor. While the contractor may have been an incidental beneficiary of the task order, the task order language provided that the engineer’s express purpose under the agreement was to provide design services to the government agency only. The statements in the separate design-build agreement that the contractor could rely on the 30% designs produced under the task order did not alter the task order’s intent. The court found this approach consistent with other federal decisions holding that general contractors are generally not intended beneficiaries of owner-architect agreements.

While not surprising, the federal court’s decision in this matter demonstrates the complexity of commercial contract disputes in the construction industry. With owners, engineers, contractors, and subcontractors all entering into different interrelated agreements, there is always potential that a particular contract or subcontract will be detrimentally impacted by another party’s failure to perform under a different agreement on the project. For owners, they can manage these risks by making all downstream parties insert language into their contracts that shows the owner is an intended third-party beneficiary.

For contractors, engineers, and other parties that are more parallel in the contracting hierarchy, it may be more difficult to contract around these risks. A contractor can mitigate this risk by seeking indemnification or other protection from the owner or other direct contractual party for interference, negligence, or delays by non-parties. Additionally, the design-builder contractor here could have considered the 30% designs more closely, rather than relying on the owner’s representations, and the contractor could have requested an opportunity to review the design task order to evaluate the risks of relying on potentially defective design criteria. 

California Case That Reads Like Russian Novel Results in Less Than Satisfying Result for Both Project Owner and Contractors

Garret Murai | California Construction Law Blog | April 3, 2019

Sometimes you can see a train wreck coming a mile away. The next case, Design Built Systems v. Sorokine, Court of Appeal for the First District, Case Nos. A151264 and A152059 (February 26, 2019), is one of those cases. It also happens to read like a Tolstoy novel.

The Beginning of the Train Wreck

Alexei Sorokine and Elena Koudriavtseva, husband and wife, owned a single family home in San Rafael, California. Sorokine had acquired the house prior to his marriage to Koudriavtseva.  In 2010, he traveled to Russia and, for reasons unexplained, has not been able to return.

Following a landslide on the property in 2006, Sorokine entered into a construction contract with Design Built Systems to design and build a series of retaining walls.  DBS was also retained to remedy a stop work notice issued by the City of San Rafael following work performed by others.

In 2011, DBS entered into another contract, this time with Koudriavtseva, for installation of concrete retaining walls and a driveway. The contract price was $175,000. However, after DBS had completed most of its work, Koudriavtseva fired DBS and hired PA Builders, Inc. to complete the project and, according to Koudriavtseva, to remedy defects caused by DBS. PA Builders, however, was unlicensed. More on that later.

During this same time, a gentleman named Dmitriy Kornach and his company Kornach Construction Company (collectively “Kornach”), performed significant remodeling work at the property, much of it himself, but at times with his sons Alexi and Oleg. Kornach, a longtime friend of Sorokine, agreed to purchase materials for the project because he was able to obtain wholesale prices by virtue of his general contractor’s license.  However, Kornach too was later fired by Koudriavtseva who fired him in the fall of 2011.

This Tolstoyesque saga, of course, ended in litigation.

The Train Wreck

In 2012, DBS sued Sorokine and Koudriavtseva alleging claims for breach of contract, foreclosure of mechanics’ lien, common counts and account stated.

Sorokine and Koudriavtseva in turn filed a cross complaint against DBS, as well as Kornach, and Kornach’s license bond surety, American Contractors Indemnity Company. The cross-complaint alleged 11 causes of action for: (1) breach of written contract; (2) breach of oral contract; (3) breach of implied warranty; (4) negligence; (5) disgorgement; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) rescission and restitution; (9) violation of the Unfair Business Practices Act; (10) breach of the covenant of good faith and fair dealing; and (11) recovery under contractor’s license bond.

Kornach in turn filed a cross-complaint against Sorokine and Koudriavtseva alleging claims for indemnity, contribution, declaratory relief, and an unusual one entitled “fraudulent filing,” based on Kornach’s claim that Sorokine and Koudriavtseva violated Internal Revenue Code section 7434 by inter alia borrowing money from Kornach but failing to repay it, filing fraudulent IRS 1099 forms indicating that they hadrepaid Kornach, and that the fraudulent 1099 forms caused Kornach to have his tax returns audited resulting in additional tax liability.

And, with that, this mess of a case went to trial. A jury trial five years later.

At the beginning of trial, Kornach’s counsel filed several motions in limine seeking to exclude evidence and testimony. One of them, Motion in Limine No. 17, sought to preclude Sorokine and Koudriavtseva’s counsel from introducing evidence and testimony regarding work performed by unlicensed contractors, namely PA Builders, on the ground that Business and Professions Code section 7031 bars all actions that seek compensation for work performed by unlicensed contractors. The trial court granted the motion.

On the twelfth day of trial, the trial court heard and ruled on several motions for directed verdict filed by the parties, two of which were appealed:

  1. The trial court granted a motion for directed verdict filed by Kornach arguing that Sorokine and Koudriavtseva’s claims for breach of written contract, breach of oral contract, breach of implied warranty, and breach of the covenant of good faith and fair dealing failed because Sorokine and Koudriavtseva could not show proof of damages as a result of the trial court’s earlier granting of Kornach’s Motion in Limine No. 17 pertaining to work performed by PA Builders. The trial court granted  Kornach’s motion for directed verdict.
  2. The trial court also granted a motion for directed verdict filed by Kornach on his Internal Revenue Code section 7434 fraudulent filing claim. This was unusual, because it is typically defendants, rather than claimants, who file motions for directed verdict. In any event, Kornach’s counsel argued that Sorokine and Koudriavtseva had failed to introduce evidence controverting Kornach’s “fraudulent filing” claim. The trial court granted this motion as well.

Following the results of the directed verdicts, the only claim remaining was DBS’ claim against Sorokine and Koudriavtseva, upon which the jury rendered a verdict in favor of DBS in the less than impressive amount of $32,190.

Following trial, the trial court awarded Kornach $20,000 in penalties under Internal Revenue Code section 7434, $122,956.50 in attorney’s fees and costs, and $113,196.50 in costs of proof based on previously served requests for admissions. In addition, the trial court awarded DBS $120,749.50 in costs of proof also based on previously served requests for admissions. Grand total: $376,902.50 on what amounted to a $32,190 claim.

But, of course, it wasn’t over.  Sorokine and Koudriavtseva appealed.

The Appeal

On appeal, Sorokine and Koudriavtseva asserted three claims of error by the trial court: (1) granting Kornach’s motion for directed verdict on its IRS “fraudulent filing” claim; (2) granting Kornach’s motion for directed verdict on Sorokine and Koudriavtseva’s inability to prove damages; and (3) awarding $113,196.50 to Kornach for costs of proof.

Kornach’s Fraudulent Filing Claim

For some reason, unusual claims often accompany unusual facts. As discussed above, Kornach’s “fraudulent filing” claim alleged that Sorokine and Koudriavtseva issued false or “fraudulent” 1099s, when in fact they never paid Kornach, which was a violation of Internal Revenue Code section 7434. Internal Revenue Code section 7434 permits a private cause of action against anyone who “willfully files a fraudulent information return with respect to payments purported to be made to any other person.” The section provides for a civil penalty of $5,000 per violation, plus costs, and an award of reasonable attorney’s fees. However, the section also provides, that if a court determines that there is a violation, its decision must identify the correct amount that should have been reported.

Kornach prevailed on this claim by filing a motion for directed verdict, which, as also discussed above, is unusual in that such motions are typically brought by defendants arguing that the claimant failed to prove one or more elements of its claim.  Here, however, Kornach successfully argued to the trial court that Sorokine and Koudriavtseva had failed to introduce evidence controverting Kornach’s claim under Internal Revenue Code section 7434 thereby flipping the burden of proof.

The Court of Appeals, while acknowledging that there are “a few cases” addressing motions for directed verdict filed by a party that has the burden proof, and while noting that it is possible to do so, held that the directed verdict rendered in favor of Kornach was in error because: (1) the evidence showed that the 1099s were not completely wrong, and importantly not “fraudulent,” because Kornach testified that he made three loans to Sorokine for $200,000, $100,000 and $100,000 and that Sorokine paid back $280,000 of these amounts; (2) Koudriavtseva testified that she was unaware at the time the 1099s were issued by her accountant that any were in error and Sorokine was unavailable at trial to testify whether he knew that any of the 1099s were issued in error; and (3) issues of a witnesses’ knowledge and belief are characteristically questions for the fact finder, which, in this case, was the jury.

Sorokine and Koudriavtseva’s Inability to Prove Damages

We’ve written before about Business and Professions Code section 7031. For contractors it’s like the Death of Ivan Ilyich(I’m a fan of Russian literature as you can tell). Everything is going fine when something seemingly inconsequential occurs (e.g., a short lapse in your contractor’s license). You think nothing about it at first, then suddenly you’re in a world of hurt, questioning the fairness of it all. In short, under Business and Professions Code section 7031, if you’re a contractor performing work requiring a valid contractor’s license, and you don’t have one: (1) you cannot make a claim for compensation for work performed; and (2) the property owner can sue you to disgorge all compensation paid to you. In short, to use a Cold War analogy, it’s the nuclear option of remedies.

The manner in which Kornach used Section 7031, however, was unusual. Rather than use the section as a shield against a payment claim by PA Builders (who was unlicensed) or as a sword to recover compensation paid to PA Builders, Kornach used it as a shield against Sorokine and Koudriavtseva’s construction defect claim, arguing that because PA Builders was unlicensed, Sorokine and Koudriavtseva could not use the amounts they paid to PA Builders to correct the work performed by Kornach to show the value of their damages.

The Court of Appeals didn’t buy it. “There is no authority for the proposition that a person who unwittingly hires an unlicensed contractor to repair work not properly performed by someone else is precluded from introducing evidence of the cost of repair,” explained the Court. “The purpose of the licensing law is to protect the public from incompetence and dishonesty in those who provide building and construction services,” further explained the Court, “not to punish the innocent people who hire them.”

The Award of $113,196.50 for Costs of Proof

In civil cases, parties are permitted to conduct “discovery” to learn more about an opposing party’s claims or defenses in a case. This includes serving written questions that must be answered by opposing parties. One form of discovery is the use of Requests for Admissions, which asks an opposing party to “admit” or “deny” under penalty of perjury leading questions posed by the other side, such as “Admit that contractor XYZ performed work on the project that was not paid for.”

Code of Civil Procedure section 2033.420 provides:

If a party fails to admit the genuineness of any document of the truth of any matter when requested to do so under this chapter, and if party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party them the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.

Section 2033.420 provides that a Court is required to make such an order unless if finds any of the following:

  1. An objection to the request was sustained or a response to it was waived;
  2. The admission sought was of no substantial importance;
  3. The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter; or
  4. There was other good reason for the failure to admit.

The decision doesn’t provide, let alone describe, the specific request for admission. However, what apparently occurred, is that Sorokine and Koudriavtseva denied a request for admission that was later shown at trial to be true. But here’s the kicker. Kornach was awarded $113,196.50 in costs of proof expenses under Civil Code section 2033.420 for proving the truth of a request for admission, not of requests for admission that Kornach had sent to Sorokine and Koudriavtseva, but based on requests for admissions that another party had sent to Sorokine and Koudriavtseva, namely Kornach’s license bond surety ACIC.

The Court of Appeals made quick work Kornach’s argument, citing Section 2033.420’s language that “the party requesting the admission,” not a different party, may thereafter seek cost of proof of expenses in proving the truth of a request for admission. “Kornach offers no authority for the proposition that a party may recover cost of proof expenses based upon requests for admission propounded by someone else,” explained the Court, “[a]nd the authority he does cite . . . says nothing of the sort.”


Design Built Systems is an interesting case if only for the twists and turns of the facts and the unusual claims and arguments made by counsel at trial. For parties and their counsel, however, the case  stands for at least two propositions: (1) While Business and Professions Code section 7031 is a powerful remedy, it can’t be used as a shield against proof of repair costs, even if the repairs are made by an unlicensed contractor; and (2) You can’t seek proof of expenses under Code of Civil Procedure section 2033.420 for proving the truth of a request for admission unless the request for admission was one that you yourself served on the opposing party.

Insured’s Complaint for Breach of Contract and Bad Faith Adequately Pleads Consequential Damages

Tred R. Eyerly | Insurance Law Hawaii | March 4, 2019

    The appellate court overturned the trial court’s dismissal of the insured’s complaint seeking consequential damages. D.K. Prop. Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh v, Pa., 2019 N.Y. App. Div. LEXIS 329 (N.Y. App. Div. Jan. 17, 2019). 

    The insured’s building began to shift and exhibit structural damage, including cracks, after construction began in an adjoining building. The insured submitted a claim under its commercial insurance policy. The insurer did not pay the claim, nor did it disclaim coverage. 

    The insured sued, alleging breach of contract for failure to pay covered losses under the policy. The second cause of action was for breach of the implied covenant of good faith and fair dealing. The complaint also requested consequential damages in connection with each cause of action. The trial court granted the insurer’s motion to dismiss the claim for consequential damages.

    The issue was whether, at the pleading stage, a claim for consequential damages arising from the insurer’s processing of the claim, required a detailed factual description or explanation for why such damages, which did not directly flow from the breach, were also recoverable. The complaint alleged that rather than pay the claim, the insurer made unreasonable and increasingly burdensome demands for three years. The insured alleged that this was a tactic to make the claim so expensive to pursue that the insured would abandon it. The investigatory process had taken so long that the structural damage to the building worsened. Among the consequential damages alleged were engineering costs, painting, repairs, monitoring equipment and moisture abatement to address water intrusion, loss of rents, and other expenses attributable to mitigating further damage to the property. 

    An insured could sue for consequential damages resulting from an insurer’s failure to provide coverage if such damages were foreseen or should have been foreseen when the contract was made. At the pleading stage, the question was whether the plaintiff had stated a claim, not whether the plaintiff was able to establish its claim. Here, the insured met the pleading requirements with respect to consequential damages. Despite the insurer’s call for a heightened pleading standard, an insured’s obligation to “take all reasonable steps to protect the covered property from further damage by a covered cause of loss” supported plaintiff’s allegation that some or all of the alleged damages were foreseeable.