http://www.lexisnexis.com/mealeys/news.aspx Headline Construction Defects Insurance Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2012 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BATON ROUGE, La. - Homeowners failed to establish that they were assigned a developer's rights against a subcontractor's insurer regarding alleged property damage from defective Chinese drywall that the subcontractor installed in their home before they purchased it, a Louisiana appeals panel ruled May 3 (Jason Niemann and Renee Niemann v. Crosby Development Co. LLC, et al., No. 2011 CA 1337, La. App., 1st Cir.; 2012 La. App. LEXIS 602). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FORT LAUDERDALE, Fla. - Commercial general liability insurers have a duty to defend an insured in an underlying Chinese drywall lawsuit, a Florida federal judge concluded April 9, finding that "faulty workmanship" and "products liability" exclusions do not preclude coverage and that the insurers have a potential duty to indemnify the insured for defense costs (Great American Fidelity Insurance Co. and Great American E&S Insurance Co. v. JWR Construction Services Inc., et al., No. 10-61423, S.D. Fla.; 2012 U.S. Dist. LEXIS 49257). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ROCK HILL, S.C. - A commercial general liability (CGL) insurance company has no duty to indemnify a judgment awarded to homeowners against its insureds regarding construction defects allegations, a South Carolina federal judge concluded April 9 (Builders Mutual Insurance Co. v. OakTree Homes Inc., et al., No. 11-550, D. S.C.; 2012 U.S. Dist. LEXIS 49333). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - Damage to doors, terraces and wood floors stemming from a faulty building design does not qualify as an occurrence, an Illinois federal judge ruled April 4 (Nautilus Insurance Co. v. JDL Development, et al., No. 10-3435, N.D. Ill.; 2012 U.S. Dist. LEXIS 57294). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PORTLAND, Ore. - A professional service exclusion does not preclude an insured's actions from coverage, an Oregon federal judge found April 24, further finding that there is a genuine issue of material fact as to whether the insurer has a duty to indemnify the insured against an underlying lawsuit arising from alleged construction defects (State Farm and Casualty Co. v. Lorrick Pacific, LLC, et al., No. 11-834-HZ, D. Ore.; 2012 U.S. Dist. LEXIS 57922). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - A commercial general liability insurer has no duty to defend an insured against allegations of construction defects, the 10th Circuit U.S. Court of Appeals ruled April 19, finding that the insured failed to establish that the "event" of its unworkmanlike or negligent construction produced any unnatural or unexpected results (Employers' Mutual Casualty Co. v. Bartile Roofs Inc., et al., No. 11-8026, 10th Cir.; 2012 U.S. App. LEXIS 7894). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - A commercial general liability insurance company had no duty to defend an additional insured against allegations arising from a subcontractor's installation of a defective roof, a Colorado appeals panel affirmed April 12 (TCD Inc. v. American Family Mutual Insurance Co., No. 11CA1046, Colo. App.; 2012 Colo. App. LEXIS 554). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - An insurer cannot demonstrate that arbitration claims regarding construction defects are unambiguously excluded from coverage, a Louisiana federal judge held April 9, denying summary judgment to the insurer regarding its duty to defend and finding that a ruling on the duty to indemnify issue is premature (Travelers Casualty and Surety Company of America v. University Facilities Inc., et al., No. 10-1682, E.D. La.; 2012 U.S. Dist. LEXIS 49970). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN DIEGO - A federal judge in California on April 25 granted summary judgment to an insurance company regarding its duty to defend a construction defects action, finding that the construction company suing the insurer is not a party to the policies (McMillin Construction Services L.P. v. Arch Specialty Insurance Co., et al., No. 10-2592, S.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - Allegations of an insured's faulty workmanship do not constitute an "occurrence" under a commercial general liability insurance policy, a Pennsylvania federal judge found April 5 (Roman Mosaic and Tile Co. v. Liberty Mutual Insurance Co. and Great Northern Co., No. 11-6004, E.D. Pa.; 2012 U.S. Dist. LEXIS 48354). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HONOLULU - Finding that construction defects do not amount to an "occurrence" under certain insurance policies, a federal judge in Hawaii on April 26 dismissed breach of contract and a number of other counterclaims brought by a contractor against its insurers (Illinois National Insurance Co., et al. v. Nordic PCL Construction Inc., f/k/a Nordic Construction Ltd., No. 11-00515, D. Hawaii; 2012 U.S. Dist. LEXIS 58464). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - A commercial general liability insurance company had a duty to defend allegations of diminution in value attributable to "property damage" against its insureds, the Fifth Circuit U.S. Court of Appeals affirmed on April 20 (Mid-Continent Casualty Co. v. Academy Development Inc., et al., No. 11-20219, 5th Cir.; 2012 U.S. App. LEXIS 8056). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HANNIBAL, Mo. - A consent judgment obtained by homeowners regarding fraudulent and negligent misrepresentation claims against insureds as to the sale of a home does not constitute damages for "property damage," a Missouri federal judge ruled April 26 (Craig and Carroll Payne v. Grinnell Mutual Reinsurance Co., No. 11-31, E.D. Mo.; 2012 U.S. Dist. LEXIS 58490). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - A federal court erred in not considering the applicability of an exception to the work-product exclusion for work performed by subcontractors, the 11th Circuit U.S. Court of Appeals ruled April 16, reversing a judgment relieving a commercial general liability insurer of its duty to indemnify an arbitration award (Auto-Owners Insurance Co. v. L. Thomas Development Inc., et al., No. 10-13012, 11th Cir.; 2012 U.S. App. LEXIS 7524). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SEATTLE - A Washington federal judge on April 13 denied summary judgment to an insurer regarding the applicability of an exterior insulation and finish system (EIFS) exclusion, a contracted persons exclusion and a fungi or bacteria exclusion regarding a homeowner's allegations of insureds' defective work (Capitol Specialty Insurance Corp. v. Yuan Zhang, No. 11-41, W.D. Wash.; 2012 U.S. Dist. LEXIS 52549). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CONCORD, N.H. - Whether an insured's original construction work or his subsequent repair work caused water damage is a genuine issue of fact material to whether a commercial general liability insurance policy provides coverage, the New Hampshire Supreme Court said April 20, reversing and remanding a judge's entry of summary judgment (Marc Brown and Laurie Brown v. Concord Group Insurance Co., No. 2011-385, N.H. Sup.; 2012 N.H. LEXIS 56). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN DIEGO - A general liability insurer sufficiently proved a potential for coverage under another insurance policy regarding the settlement of construction defects claims against a mutual insured, a California appeals panel affirmed April 11, also finding that the judge did not abuse his discretion in allocating the amounts of contribution (Axis Surplus Insurance Co. v. Glencoe Insurance Ltd., No. D058963, Calif. App., 4th Dist., Div. 1; 2012 Cal. App. LEXIS 410). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank OAKLAND, Calif. - A commercial general liability insurance company breached its duty to defend allegations against insureds regarding construction defects in their work in a home, a California federal judge found April 26, awarding damages of $301,334 plus interest to the insureds (Swi-Co Construction Inc., et al. v. AMCO Insurance Co., et al., No. 10-3122, N.D. Calif.; 2012 U.S. Dist. LEXIS 59391). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2019%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TRENTON, N.J. - A New Jersey appeals panel on April 13 affirmed a judgment of $84,618.76 to reimburse a commercial general liability insurer for another insurer's share of defense costs in an underlying negligence action regarding allegations of construction defects; however, the panel reversed a judgment of $74,308.97 for counsel fees (Potomac Insurance Company of Illinois, by its transferee, OneBeacon Insurance Co. v. Pennsylvania Manufacturers' Association Insurance Co., et al., No. A-3164-09T2, N.J. Super., App. Div.; 2012 N.J. Super. LEXIS 52). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2020%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - An additional insured failed to establish that underlying complaints alleged "property damage" caused by an "occurrence" under a commercial general liability insurance policy, an Illinois appeals panel affirmed March 30, finding that the insurer had no duty to defend or indemnify the additional insured (Donven Homes Inc. v. Amerisure Insurance Co., No. 1-10-2790, Ill. App., Dist. 1, Div. 1; 2012 Ill. App. Unpub. LEXIS 791). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2021%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BROOKLYN, NY - A commercial general liability insurance policy does not cover the cost to repair defective pipes because the damages claimed arise from injury caused by an insured's own work, a New York federal judge concluded April 23 (Franco Belli Plumbing & Heating and Sons Inc. v. Liberty Mutual Insurance Co., No. 12-128, E.D. N.Y.; 2012 U.S. Dist. LEXIS 56761). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2022%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - Insureds failed to tender their claim regarding property damage to an adjacent building allegedly caused by construction work on the insureds' property in a timely manner as required under the notice provisions in their commercial insurance policy, the Second Circuit U.S. Court of Appeals affirmed May 1 (United National Insurance Co. v. 515 Ocean Avenue, et al., No. 11-836, 2nd Cir.; 2012 U.S. App. LEXIS 8802). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2023%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank INDIANAPOLIS - An insurer sued a construction company and the construction company's other insurers in an Indiana federal court on April 6, asking for a declaration that it does not owe any liability to the construction company for certain sediment discharges it allegedly made into a creek and lake (The Cincinnati Insurance Co. v. Wurster Construction Co. Inc., No. 12-0454, S.D. Ind.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-4%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2024%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLESTON, S.C. - A South Carolina federal judge on May 3 amended a previous judgment to award an insured $68,695.20 plus post-judgment interest from its insurer regarding the insurer's breach of the duty to defend against a construction defects lawsuit and granted the insured's motion for an award of fees and costs after the judgment was appealed (Jessco Inc. v. Builders Mutual Insurance Co., No. 08-1759, D. S.C.; 2012 U.S. Dist. LEXIS 62114). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - A commercial general liability insurance company had a duty to defend an insured contractor in an underlying construction defect action, but the insurer did not have a duty to indemnify the insured for the $10,000 regrading allowance paid to homeowners, the Fourth Circuit U.S. Court of Appeals determined March 29 (Jessco Inc. v. Builders Mutual Insurance Co., No. 10-1215, 4th Cir.; 2012 U.S. App. LEXIS 6502). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank COLUMBIA, S.C. - A commercial general liability insurer has no duty to indemnify an insured for damages arising out of construction defects except for any damages that may be awarded to replace and pack certain areas of eroded soil, a South Carolina federal judge concluded March 27, granting in part summary judgment to the insurer (Builders Mutual Insurance Co. v. Lacey Construction Co. Inc., et al., No. 11-400, D. S.C.; 2012 U.S. Dist. LEXIS 41588). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - Claims for faulty workmanship do not constitute an "occurrence" under commercial general liability insurance policies, a Pennsylvania federal judge ruled March 16, finding that insurers have no duty to defend or indemnify (Zurich American Insurance Co., et al. v. R.M. Shoemaker Co., et al., No. 12-873, E.D. Pa.; 2012 U.S. Dist. LEXIS 35760). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CENTRAL ISLIP, NY - Allegations of an insured's faulty workmanship in the construction of a swimming pool do not constitute an "occurrence" under a commercial general liability insurance policy, a New York federal judge ruled March 26 (Aquatectonics Inc., doing business as Loebs & Gordon PoolCraft v. The Hartford Casualty Insurance Co., No. 10-2935, E.D. N.Y.; 2012 U.S. Dist. LEXIS 41185). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank INDIANAPOLIS - Allegations of construction defects constitute "property damage" claims resulting from an "occurrence" under a commercial general liability insurance policy and umbrella policies, an Indiana federal judge ruled March 29 (Trinity Homes LLC and Beazer Homes Investment LLC v. Ohio Casualty Insurance Co., No. 04-1920, S.D. Ind.; 2012 U.S. Dist. LEXIS 43699). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - A post-1986 standard form commercial general liability policy with products-completed operations hazard coverage does cover a claim made against an insured for damage to the part of a completed project performed by a subcontractor but not to any other project component caused by a subcontractor's defective work, an 11th Circuit U.S. Court of Appeals panel majority affirmed March 15 (Amerisure Mutual Insurance Co. and Amerisure Insurance Co. v. Auchter Co. and Amelia Island Co., No. 10-10960, 11th Cir.; 2012 U.S. App. LEXIS 5412). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LOUISVILLE, Ky. - Insureds cannot establish causation or damages regarding their commercial general liability insurer's handling of a construction defect claim, a Kentucky federal judge ruled March 30, granting summary judgment to the insurer on breach of contract and bad faith claims (Seville Homes Inc., et al. v. Northern Insurance Company of New York, et al., No. 05-477, W.D. Ky.; 2012 U.S. Dist. LEXIS 45252). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - A Colorado federal judge on March 28 remanded a general contractor's insurance coverage action regarding allegations of construction defects in a roofing system, ruling that a subcontractor contractually waived its right to remove the lawsuit because of the forum selection clauses in the subcontract agreement (Roche Constructors Inc. v. OneBeacon America Insurance Co., et al., No. 11-01903, D. Colo.; 2012 U.S. Dist. LEXIS 43311). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LAS VEGAS - A federal judge in Nevada granted summary judgment on March 14 to an insurer regarding a breach of contract counterclaim based on the insurer's withdrawal of a defense for construction defect claims (Everest Indemnity Insurance Co. v. Aventine-Tramonti Homeowners Association, et al., No. 09-01672, D. Nev.; 2012 U.S. Dist. LEXIS 33860). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - A federal judge in Colorado on March 22 granted summary judgment in part to an insurer regarding a breach of contract claim, finding that the claim is barred by the contractual period of limitations with regard to any damage concerning insureds' deck and water intrusion resulting from defects in the construction of the deck (Jack Kesling and Michelle Kesling v. American Family Mutual Insurance Co., No. 10-01441, D. Colo.; 2012 U.S. Dist. LEXIS 38857). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - An all-risk insurance policy does not cover the costs to repair damages to an insured's building caused by the defective design of a roof and the subsequent stress put on it by snow, a Colorado federal judge ruled March 29, finding that the insurer did not breach its policy (Travelers Indemnity Co. v. Board of County Commissioners for Larimer County, No. 10-02160, D. Colo.; 2012 U.S. Dist. LEXIS 43295). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHOENIX - An all-risk insurance policy provides coverage from damage by hail whether the damage is the sole or partial cause of the loss but does not provide coverage where hail is not responsible for the loss, an Arizona federal judge held March 12, denying motions for summary judgment filed by an insured and its insurer (Monterra Apartments Limited Liability Partnership v. Sequoia Insurance Co., No. 11-1236, D. Ariz.; 2012 U.S. Dist. LEXIS 32243). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank GAINESVILLE, Fla. - An insured's ensuing losses resulting from faulty workmanship are covered under primary and excess insurance policies, a Florida federal judge determined March 30, also finding that the consequential loss exclusions bar coverage for lost rents, loan expenses and diminution of value, but not the costs of retaining experts (The Bartram LLC v. Landmark American Insurance Co., et al., No. 10-28, N.D. Fla.; 2012 U.S. Dist. LEXIS 44535). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - Equitable subrogation and contractual subrogation claims filed by commercial general liability insurers against subcontractors alleged to have been responsible for construction defect claims are time-barred, a Colorado federal judge ruled March 14 (D.R. Horton Inc.-Denver d/b/a Trimark Communities and D.R. Horton Inc. v. The Travelers Indemnity Company of America, et al., No. 10-02826, D. Colo.; 2012 U.S. Dist. LEXIS 33846). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MOBILE, Ala. - An insured breached the notice provision of an insurance policy regarding construction defect claims, an Alabama federal judge ruled March 12, granting summary judgment to an insurer on a contribution claim filed by a subrogated insurer (Assurance Company of America v., individually and as subrogee of its insured, Coastal Builders Inc. v. Amerisure Mutual Insurance Co., No. 10-00112, S.D. Ala.; 2012 U.S. Dist. LEXIS 33359). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TRENTON, N.J. - Regarding an indemnification claim, an insured cannot establish a prima facie case of covered loss simply by demonstrating that class action claimants alleged potential third-party property damage; rather, it must show that the underlying settlement actually included payment for such claimed damages, a New Jersey appeals panel ruled March 13 (Building Materials Corporation of America d/b/a GAF Materials Corp. v. Allstate Insurance Co., et al., No. A-4444-09T3, N.J. Super, App. Div.; 2012 N.J. Super. LEXIS 35). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-3%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CAMDEN, N.J. - A New Jersey federal judge on March 19 dismissed a commercial general liability insurer's coverage action regarding construction defect claims because a parallel action was first filed in a New York state court (Catlin Specialty Insurance Co. v. Plato Construction Corp., No. 10-5722, D. N.J.; 2012 U.S. Dist. LEXIS 36494). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BATON ROUGE, La. - Homeowners' allegations of damages from Chinese drywall are not covered under their insurance policy because the drywall is defective and the drywall's off-gassing is both corrosive and a pollutant, a Louisiana federal judge ruled March 9, finding that the policy's defective building material, latent defect, pollutant and corrosion damage exclusions apply (Cullen J. Dupuy and Mary E. Dupuy v. USAA Casualty Insurance Co., No. 11-336, M.D. La.; 2012 U.S. Dist. LEXIS 31890). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals on March 1 certified a question of law to the Virginia Supreme Court regarding whether four exclusions in an all-risk insurance policy bar coverage for damages caused by defective Chinese drywall (Travco Insurance Co. v. Larry Ward, et al., No. 10-1710, 4th Cir.; 2012 U.S. App. LEXIS 4397). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BOULDER, Col. - Massachusetts law, not Florida law, applies to a defective Chinese drywall coverage dispute because the insurance policy at issue was contracted and finalized in Massachusetts, a Colorado magistrate judge said Jan. 17 (Probuild Holdings Inc., et al. v. Granite State Mutual Insurance Co., et al., No. 10-378, Col. Dist., Boulder Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MISSOULA, Mont. - A commercial general liability insurer has a duty to defend against allegations that insureds misrepresented their work on a construction project because the claims are potentially a covered "occurrence" as the insureds did not expect or intend the damages, a Montana federal judge ruled Feb. 27 (Penn-Star Insurance Co. v. Coyote Ridge Construction Inc. and Timothy W. Flotre, No. 11-55, D. Mont.; 2012 U.S. Dist. LEXIS 24882). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TAMPA, Fla. - A commercial general liability insurer has no duty to defend under an umbrella policy regarding underlying construction defect actions because another insurer's primary policy owes a defense, a Florida federal judge found Feb. 29 (Amerisure Mutual Insurance Co. v. Summit Contractors Inc., et al., No. 11-77, M.D. Fla.; 2012 U.S. Dist. LEXIS 27253). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - An insurance company has no duty to defend or indemnify eight underlying construction defect actions, a Pennsylvania federal judge concluded Feb. 24, because contractual claims for faulty workmanship do not constitute an "occurrence" (Westfield Insurance Co. v. Bellevue Holding Co., et al., No. 10-3696, E.D. Pa.; 2012 U.S. Dist. LEXIS 24722). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MILWAUKEE - Although a Wisconsin federal magistrate judge on March 5 found that an insurer did not breach its duty to defend in a dispute over construction design and mold damage in a new building, she held that material questions preclude a ruling on whether the insurer acted in bad faith in denying coverage (American Design & Build Inc. v. Houston Casualty Co., No. 11-293, E.D. Wis.; 2012 U.S. Dist. LEXIS 28268). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FRESNO, Calif. - Two insurance companies had no duty to defend an insured for an underlying construction defect action based on their respective "your product" and business risk exclusions, a California federal judge ruled March 6, granting summary judgment to the insurers on an equitable contribution claim asserted against them (St. Paul Fire & Marine Insurance Co. v. Vadnais Corp., et al., No. 10-1669, E.D. Calif.; 2012 U.S. Dist. LEXIS 29696). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - An Illinois federal judge on Feb. 28 refused to dismiss an insurance coverage action against contractors and their insurers regarding allegations of defective work because two underlying state court actions will not resolve the contribution and allocation issues in dispute in the federal action (Hartford Casualty Insurance Co. v. Construction Builders in Motion Inc., et al., No. 11-7498, N.D. Ill.; 2012 U.S. Dist. LEXIS 25240). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FLORENCE, S.C. - A federal judge in South Carolina on Feb. 23 refused to dismiss a general contractor's complaint against a commercial general liability insurer regarding additional insured coverage for allegations of construction defects (Baiden and Associates Inc. v. Crum & Forster Specialty Insurance Co., et al., No. 11-00267, D. S.C.; 2012 U.S. Dist. LEXIS 23053). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank JACKSON, Miss. - A federal judge in Mississippi on March 5 refused to reconsider a ruling that a commercial general liability insurance company had a duty to defend an additional insured against cross-claims alleging the installation of a roof in a "cheap and shoddy manner" (Carl E. Woodward LLC and Gray Insurance Co. v. Acceptance Indemnity Co., et al., No. 09-781, S.D. Miss.; 2012 U.S. Dist. LEXIS 29919). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - Additional insureds have sufficiently pleaded facts alleging that commercial general liability insurers engaged in deceptive trade practices regarding the insurers' defense of an underlying construction defects action, a Colorado federal judge ruled Feb. 16 (D.R. Horton Inc. - Denver d/b/a Trimark Communities and D.R. Horton Inc. v. The Travelers Indemnity Company of America, et al., No. 10-02826, D. Colo.; 2012 U.S. Dist. LEXIS 19293). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MINNEAPOLIS - A Minnesota federal judge on March 1 awarded $32,334.41 in attorney fees and costs to homeowners after they successfully obtained summary judgment regarding an insurer's duty to defend an additional insured sued by the homeowners for alleged damages (Curtis and Ethel Nelson v. American Home Assurance Co., No. 11-1161, D. Minn.; 2012 U.S. Dist. LEXIS 26982). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BISMARCK, N.D. - A federal judge in North Dakota on Feb. 16 dismissed a Montana city from an insurer's coverage action regarding claims arising out of an insured's allegedly defective work because the court did not have personal jurisdiction over the city (Harleysville Insurance Co. v. Martin Construction Inc., et al., No. 11-011, D. N.D.; 2012 U.S. Dist. LEXIS 19335). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=9-2%20Mealey%27s%20Constr.%20Defects%20Ins.%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CANTON, Ohio - An Ohio appeals court on Jan. 26 vacated a ruling that awarded damages to homeowners for property and mold-related issues, finding that the damage to their home was the result of faulty construction and were not covered occurrences under an insurance policy issued to the builder of the property (Charles Myers, et al. v. United Ohio Insurance Co., No. 11CA000009, Ohio App., 5th Dist.; 2012 Ohio App. LEXIS 287).