Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals
December 11, 2023 —
Jason Taylor & Danielle K. Kegley - Traub LiebermanIn this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor of the Carrier in a coverage lawsuit. The coverage lawsuit involved a priority dispute between the Carrier and another insurer over which company’s policy had responsibility to cover the defense of their mutual insured, a heating and cooling contractor (the “Insured”) in an underlying lawsuit alleging carbon monoxide poisoning. The Carrier issued a contractor’s pollution liability policy and the other insurer issued a commercial general liability policy to the Insurer. Both the Carrier and the other insurer filed cross-motions for summary disposition in the trial court on the priority of coverage issue. The trial court granted the Client’s motion, holding that the CGL carrier was the primary insurer based on the language in the policies’ “other insurance” clauses. The trial court rejected the CGL carrier’s argument to apply the “total policy insuring intent” or “closest to the risk” tests—tests which Michigan courts have not adopted. Specifically, the court rejected the CGL carrier’s argument that the Client’s contractor’s pollution liability policy was more specifically tailored to the loss in the underlying lawsuit. The trial court also rejected CGL carrier’s alternative argument that the “other insurance” clauses in the policies were irreconcilable, requiring a pro rata allocation based on the respective limits of the policies.
Reprinted courtesy of
Jason Taylor, Traub Lieberman and
Danielle K. Kegley, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com
Ms. Kegley may be contacted at dkegley@tlsslaw.com
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Congratulations to Haight Attorneys Selected to the 2024 Southern California Super Lawyers List
January 29, 2024 —
Haight Brown & Bonesteel LLPHaight attorneys have been selected to the 2024 Southern California Super Lawyers list.
Congratulations to:
- Bruce Cleeland
- Peter A. Dubrawski
- Angela S. Haskins
- Gary L. LaHendro
- Denis J. Moriarty
- Jennifer K. Saunders
Read the full story...Reprinted courtesy of
Haight Brown & Bonesteel LLP
Eleventh Circuit Finds Professional Services Exclusion Applies to Construction Management Activities
April 29, 2024 —
Ashley Kellgren - Traub Lieberman Insurance Law BlogIn Colony Ins. Co. v. Coastal Constr. Mgmt., LLC, 2024 U.S. App. LEXIS 4809 (11th Cir. Feb. 29, 2024), the Eleventh Circuit found the insurer had no duty to defend or indemnify its insured based on a professional services exclusion. In that case, the underlying claims arose out of the construction of a four-story apartment complex. The owner and project developer contracted with the insured to provide construction management services as a construction manager and construction consultant. Several years after the project was completed, the owner filed suit against the architect, general contractor, and the insured alleging numerous defects and deficiencies with respect to the project. The owner asserted claims against the insured for breach of contract and negligence, alleging various failures by the insured in connection with its supervision of construction and failures to properly and timely complete the project, and correct inadequate, defective, and noncomplying work.
Colony issued two commercial general liability policies to the insured, both of which contained a professional services exclusion. Although the policy did not expressly define “professional services,” the professional services exclusion provided a non-exhaustive list of examples, including:
(2) preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications;
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Ashley Kellgren, Traub LiebermanMs. Kellgren may be contacted at
akellgren@tlsslaw.com
Judgment Proof: Reducing Litigation Exposure with Litigation Risk Insurance
March 04, 2024 —
Latosha M. Ellis & Charlotte Leszinske - Hunton Insurance Recovery BlogIt is not just your imagination: verdicts are getting bigger. So-called “nuclear verdicts” have increased in size and frequency over the past decade, particularly after the COVID-19 pandemic. Litigation risk insurance is a little known, but highly effective, option meant to compliment traditional insurance products and provide additional protection for policyholders nervous about litigation exposure.
Unfortunately, it is difficult to predict the exposure presented by any particular case. Between 2020 and 2022, the median
verdict increased 95%—from $21.5 million to $41.1 million. In
2022, a jury handed down a verdict worth $7.3 billion for injury to a single plaintiff. Even if an injury or loss is minor, juries have shown that they are willing to penalize corporate defendants with punitive damages that significantly exceed the award of compensatory damages. With such uncertainty and millions (if not billions) at stake, companies can reduce risk with litigation risk insurance.
Three key types of litigation risk insurance include: (1) punitive wrap insurance, (2) adverse judgment insurance, and (3) judgment preservation insurance.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Charlotte Leszinske, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
Ms. Leszinske may be contacted at cleszinske@HuntonAK.com
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Contract Void Ab Initio: Key Insights into the KBR vs. Corps of Engineers Affirmative Defense
February 12, 2024 —
Matthew DeVries - Best Practices Construction LawIn a recent Board decision dated December 13, 2023, the United States Army Corps of Engineers sought to amend its answer in the case of APPEALS OF – KELLOGG BROWN & ROOT SERVICES, INC., under Contract No. W912GB-13-C-0011. The proposed amendment introduces an affirmative defense, contending that Kellogg Brown & Root Services, Inc. (KBR) made material misrepresentations in its proposal, rendering the fully-performed contract void ab initio.
Background: The contract in question, executed on July 9, 2013, was for the construction of an Aegis Ashore Missile Defense System site in Deveselu, Romania, with a firm, fixed-price amount of $134,211,592. The Corps moved to amend its answer to allege that KBR’s material misrepresentations induced the Corps to enter the contract, justifying the voiding of the contract. The alleged misrepresentations include issues related to subcontractor quotes, firm fixed prices, subcontracting plans, and more.
Motion to Amend and Legal Defense: The Corps, despite delays in formally amending its answer, argued that KBR was aware of the potential affirmative defense before the conclusion of fact discovery. The proposed affirmative defense asserts that KBR made eight material misrepresentations in its proposal, upon which the Corps relied in awarding the contract and defending against a GAO protest.
Read the full story...Reprinted courtesy of
Matthew DeVries, Burr & Forman LLPMr. DeVries may be contacted at
mdevries@burr.com
Courthouse Reporter Series: Two Recent Cases Address Copyright Protection for Architectural Works
January 16, 2024 —
Stu Richeson - The Dispute ResolverRecent decisions by the Seventh Circuit and the Eight Circuit have addressed the scope of protection afforded to architectural works under copyright law. The Seventh Circuit case of Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879 (7th Cir. 2021), took a somewhat narrow view of the copyright protection afforded to the design of an “affordable, multipurpose, suburban, single-family home.” In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021), cert. denied, 142 S. Ct. 2888, 213 L. Ed. 2d 1103 (2022) the Eight Circuit held that the publication of floor plans of a house in a real estate listing was not protected from claims of copyright infringement.
Design Basics, LLC v. Signature Constr., Inc., involved a plaintiff that the court described as holding registered copyrights in thousands of floor plans for suburban, single-family homes that are basic schematic designs, largely conceptual in nature, and depict layouts for one- and two-story single-family homes that include the typical rooms: a kitchen, a dining area, a great room, a few bedrooms, bathrooms, a laundry area, a garage, stairs, assorted closets, etc. The court described the plaintiff as a “copyright troll” and noted that litigation proceeds had become the principal revenue stream for the plaintiff. The plaintiff sued a contractor and related businesses contending hat the defendants had infringed plaintiff’s copyrighted floor plans.
Read the full story...Reprinted courtesy of
Stu Richeson, PhelpsMr. Richeson may be contacted at
stuart.richeson@phelps.com
First Circuit Limits Insurers’ Right to Recoup Defense Costs or Settlement Payments
April 02, 2024 —
Eric Hermanson, Austin Moody & Victoria Ranieri - White and Williams LLPWeighing in on an issue that has divided courts nationwide, the U.S. Court of Appeals for the First Circuit has ruled that an insurer under Massachusetts law has no right to recoup defense costs, or amounts the insurer pays in settlement – even if the insurer reserves rights prior to payment and obtains a ruling, after the fact, that no defense or indemnity was owed. Berkley Natl. Ins. Co. v. Atlantic-Newport Realty LLC, No. 22-1959, 2024 U.S. App. LEXIS 4115 (1st Cir. Feb 22, 2024) (“Granite Telecomm"). However, the First Circuit rested its ruling on narrow procedural grounds, which may prolong the controversy rather than resolve it.
The insureds in Granite Telecomm owned a company cafeteria. They were sued by a food service worker who suffered a foot infection after being exposed to bacteria during a sewage backup. They sought coverage from their insurer, Berkley. Berkley argued that coverage was barred by a fungus and bacteria exclusion in the policy. The insureds disagreed. They threatened suit under M.G.L. ch. 93A, and demanded that Berkley defend the case.
Reprinted courtesy of
Eric Hermanson, White and Williams LLP,
Austin Moody, White and Williams LLP and
Victoria Ranieri, White and Williams LLP
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
Ms. Ranieri may be contacted atranieriv@whiteandwilliams.com
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Revolutionizing Buildings with Hybrid Energy Systems and Demand Response
January 08, 2024 —
Aarni Heiskanen - AEC BusinessA recent study conducted by the Finnish Building Services 2030 group explores the potential technologies and business prospects for adaptable energy systems within buildings.
Building Services 2030 is a Finnish consortium of Aalto University, Tampere University, and 14 industry partners. The consortium has defined a shared vision for the Finnish building service sector and researches topics that help reach the vision. My company is responsible for the group’s communication, so I eagerly read the research reports as they come out.
One of the new reports I found very timely is about the energy flexibility of buildings. The authors are Senior Researcher Juha Jokisalo and Professor Matti Lehtonen from Aalto University. They highlight how the contemporary energy landscape is undergoing a significant transformation.
Read the full story...Reprinted courtesy of
Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
