BINGO Word of the Day – July 31st

The current game is now: X BINGO – make a “X” from all four corners.

 

Today’s Useless Fact:  In ancient Rome, it was considered a sign of leadership to be born with a crooked nose.

 

Here is today’s word:

 

INSURANCE DISPUTES

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK

COMMERCIAL CONSTRUCTION

ELECTRICAL

GREEN ENERGY

JOEL KARR

RESIDENTIAL CONSTRUCTION

TIM PRINCE

ARBITRATION

CONSTRUCTION PLANNING

PATRICK COPPI

SOIL QUALITY

WILLIAM GORDON

DEPOSITION

FORENSIC ARCHITECTURE

CONSTRUCTION CONSULTING

expertwitnessinconstruction.com

JAMES WHITTEMORE

LEE RAINWATER

1.888.684.8305

CHARLES CASSANI

DECKS

FRAMING

PETER CLARK

ANTHONY FUSCHILLO

BALCONIES

CONSTRUCTION DEFECTS

EUGENE PETERSON

JAMES PLATT

LITIGATION SUPPORT

XACTIMATE ESTIMATES

WORKPLACE SAFETY

STRUCTURAL COMPONENTS

WATER INTRUSION

SIDING

PLUMBING

OSHA

JOHN LONG

FIRE DAMAGE

DAN LUBY

BUILDING CODES

ALTERNATIVE DISPUTE RESOLUTION

CONSTRUCTION CONTRACTS

FOUNDATIONS

JERRY RUDICK

No Need of Injury to Others’ Property to be an “Occurrence” Under a CGL Insurance Policy

Stephen Pudner – July 19, 2013

In an opinion last week that could have far reaching ramifications in the construction industry in the insurance coverage context, the Supreme Court of Georgia ruled that an “occurrence” under a standard Commercial General Liability (CGL) policy may be based on a breach of warranty claim and does not require damage to work or property of someone other than the insured. This holding removes one commonly used rationale for insurers to deny coverage in the construction context based on lack of an “occurrence”, although insurers may still be able to deny coverage for other reasons. The case is styled Taylor Morrison Services, Inc. v. HDI-Gerling American Insurance Company.

In the underlying case, a homebuilder was sued by homeowners alleging faulty construction and fraud in concealing the defects. The builder’s insurer filed a separate lawsuit against the builder to establish that the homeowners’ claims were not covered by the CGL policy.  The CGL policy covered “occurrences” but contained several exclusions, including the “builder’s risk” exclusion and other business risk exclusions.

The federal trial court applied Georgia law and ruled in the insurer’s favor and found that the there was no coverage because the claims against the builder did not involve an “occurrence” in that the only property damage was to the work of the insured builder. The builder appealed, and the U.S. Court of Appeals for the Eleventh Circuit certified the pertinent legal questions to the Supreme Court of Georgia.

The Supreme Court rejected the federal trial court’s rationale, and answered the first question by holding “that an ‘occurrence,’ as the term is used in a standard CGL policy, does not require damage to the property or work of someone other than the insured.” The Supreme Court of Georgia then answered the second question by holding that a claim for breach of warranty alone may constitute an “occurrence” that triggers coverage under a CGL policy, but that “in most cases” a claim must allege something other than fraud to be an “occurrence.”

This holding removes one commonly used rationale for insurers to deny coverage in the construction context—the lack of an “occurrence”—and should be relied upon by contractors that are denied coverage on a CGL policy based on this rationale. It is important to note, however, that not every “occurrence” gives rise to coverage under a CGL policy, and that an insurer may still be able to avoid coverage of an “occurrence” if it does not cause damage to property of a third party pursuant to the “builder’s risk” or other exclusions in a CGL policy.

via No Need of Injury to Others’ Property to be an “Occurrence” under a CGL Insurance Policy | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.

BINGO Word of the Day – July 30th

The current game is now: X BINGO – make a “X” from all four corners.

 

Today’s Useless Fact:  The worlds largest rodent is the Capybara.  An Amazon water hog that looks like a guinea pig, it can weigh more than 100 pounds.

 

Here is today’s word:

 

JERRY RUDICK

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK

COMMERCIAL CONSTRUCTION

ELECTRICAL

GREEN ENERGY

JOEL KARR

RESIDENTIAL CONSTRUCTION

TIM PRINCE

ARBITRATION

CONSTRUCTION PLANNING

PATRICK COPPI

SOIL QUALITY

WILLIAM GORDON

DEPOSITION

FORENSIC ARCHITECTURE

CONSTRUCTION CONSULTING

expertwitnessinconstruction.com

JAMES WHITTEMORE

LEE RAINWATER

1.888.684.8305

CHARLES CASSANI

DECKS

FRAMING

PETER CLARK

ANTHONY FUSCHILLO

BALCONIES

CONSTRUCTION DEFECTS

EUGENE PETERSON

JAMES PLATT

LITIGATION SUPPORT

XACTIMATE ESTIMATES

WORKPLACE SAFETY

STRUCTURAL COMPONENTS

WATER INTRUSION

SIDING

PLUMBING

OSHA

JOHN LONG

FIRE DAMAGE

DAN LUBY

BUILDING CODES

ALTERNATIVE DISPUTE RESOLUTION

CONSTRUCTION CONTRACTS

FOUNDATIONS

Arizona Legislature Adds New Limits On Indemnification In Public Construction Contracts

Stephen Richman and Denise Troy – July 10, 2013

For many years, the Arizona Little Miller Act and the Arizona Procurement Code (A.R.S. § 34-226 and A.R.S. § 41-2586, respectively) prohibited a party from being indemnified, held harmless or defended to the extent of its own negligence. This prohibition applied to an owner, design professional, contractor or subcontractor agreement relating to a public works project. Any agreement that attempted to provide indemnity for an indemnified party’s own negligence was deemed to be void because it was contrary to public policy. Under these statutes, each party was required to be responsible for its own negligence.1

Although there was a limit on the ability to transfer risk of party’s own negligence, the public works statutes did not prohibit the party providing the indemnity from naming the indemnified party as an additional insured. The result was that even though indemnity for negligence could not be directly provided by a contractual provision, the party downstream might be required to provide insurance coverage for such negligence with a proper additional insured endorsement. Thus, for example, even if the contract general conditions stated that the indemnity obligations of the contractor do not apply to any claims “arising from the negligent acts or omissions” of the owner, if the insurance provision required the owner to be named as an additional insured under the contractor’s liability policy, the owner would be insured for its own negligence by the contractor.

The Arizona legislature recently revised the Little Miller Act and the Procurement Code statutes to address the insurance issue and to otherwise strengthen the anti-indemnity public works provisions. The new law (which goes into effect on September 13, 2013 and only applies to contracts entered into after that date) bars insurance for the prohibited areas of indemnification (which are expanded to include recklessness and intentional wrongdoing, in addition to negligence). The new legislation also broadens the definition of design professionals. It also prevents cities, towns or other political subdivisions from enacting laws that would override the limitations on indemnities. The bill also broadens and makes more explicit the prohibition against any requirement to indemnify (and to hold harmless, to defend and to insure) with respect to subcontractors.

The most significant change appears to be the proscription against insurance for any of the prohibited areas of indemnification (principally negligence). The new law will alter the manner in which additional insured endorsements are handled. That is, public owners may no longer require general contractors to name them as an additional insured for purposes of “avoiding” the prohibitions, and general contractors will no longer be able to require subcontractors to name them as additional insureds. It is unclear whether being named an additional insured can still be required but be limited only to the insuring party’s negligence.

BINGO Word of the Day – July 29th

The current game is now: X BINGO – make a “X” from all four corners.

 

Today’s Useless Fact:  Heinz Catsup leaving the bottle travels at 25 miles per YEAR.

 

Here is today’s word:

 

FOUNDATIONS

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK

COMMERCIAL CONSTRUCTION

ELECTRICAL

GREEN ENERGY

JOEL KARR

RESIDENTIAL CONSTRUCTION

TIM PRINCE

ARBITRATION

CONSTRUCTION PLANNING

PATRICK COPPI

SOIL QUALITY

WILLIAM GORDON

DEPOSITION

FORENSIC ARCHITECTURE

CONSTRUCTION CONSULTING

expertwitnessinconstruction.com

JAMES WHITTEMORE

LEE RAINWATER

1.888.684.8305

CHARLES CASSANI

DECKS

FRAMING

PETER CLARK

ANTHONY FUSCHILLO

BALCONIES

CONSTRUCTION DEFECTS

EUGENE PETERSON

JAMES PLATT

LITIGATION SUPPORT

XACTIMATE ESTIMATES

WORKPLACE SAFETY

STRUCTURAL COMPONENTS

WATER INTRUSION

SIDING

PLUMBING

OSHA

JOHN LONG

FIRE DAMAGE

DAN LUBY

BUILDING CODES

ALTERNATIVE DISPUTE RESOLUTION

CONSTRUCTION CONTRACTS