Articles Posted in States

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thought-catalog-580700-unsplash-300x200A little over a month ago, a judge in Franklin County, Ohio, held that Bitcoin—a popular form of cryptocurrency—constitutes covered “property” under the terms of a traditional homeowner’s policy.

In Kimmelman v. Wayne Insurance Group, an insured, James Kimmelman, sought coverage from his personal insurer for a loss of $16,000 in Bitcoin that was purportedly stolen from Kimmelman’s online account. Kimmelman argued that the Bitcoin constituted covered property under his homeowner’s policy. The insurer argued that Kimmelman was only entitled to recover $200 under a policy sublimit for monetary losses.

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Coat_of_Arms_of_New_Jersey_svg-281x300Insurance coverage litigation can be lengthy and is usually complex, and these characteristics are only exacerbated by the need to comply with often arcane state law rules of procedure. New Jersey, long a hotbed of insurance litigation, has too often exemplified this reality. Until now.

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iStock-535399524-construction-300x200Last week, the Ohio Supreme Court unfortunately narrowed the scope of coverage for a subcontractor’s faulty workmanship. The court held in Ohio Northern University v. Charles Construction Services, Inc. that faulty workmanship in a construction defect case is not an “occurrence” under standard-form CGL policies in Ohio. The circumstances will sound familiar to anyone involved in the construction industry: Ohio Northern University retained Charles Construction to build a hotel and conference center on campus. The contract required Charles to maintain a CGL policy with Products-Completed Operations-Hazard coverage. Charles obtained a policy from Cincinnati Insurance Company with the required coverage.

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iStock-878953378-excess-bad-faith-300x205A federal court in Michigan just breathed new life into a long-running legal saga—while at the same time issuing a warning shot across the bows of insurers—by declining to dismiss an insured’s bad faith cause of action alleging its insurer wrongly decided to pay one claim before another, to the insured’s detriment.

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iStock-612401378-environmental-long-tail-300x211The conflict between policyholders and insurers over “long-tail” insurance coverage took an unfortunate turn with a recent decision by the New York Court of Appeals on the issue of allocation for long-tail claims. On March 27, 2018, the court issued a decision in Keyspan that significantly impacts policyholders by decreasing the insurers’ proportionate share of financial responsibility and increasing the share imposed on the insured. This case involved long-term and continuous environmental contamination that began before comprehensive general liability insurance became available in the marketplace and continued, unobserved, across multiple policy periods. At issue was whether, under the “pro rata time-on-the-risk” method of allocation, Century Indemnity Company was liable to its insured, KeySpan Gas East Corporation, for years outside of its policy periods when there was no applicable insurance coverage offered on the market.

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iStock-899623742-kerosene-lamp-300x169A little over two months ago, we analyzed the recent decision in Black & Veatch Corp. v. Aspen Insurance (UK) Ltd., which placed the U.S. Court of Appeals for the Tenth Circuit in line with a consistently expanding number of jurisdictions finding that a subcontractor’s faulty work constitutes an “occurrence” (defined as an accident) under standard form CGL language. The Tenth Circuit’s decision emphasized the “near unanimity” of state supreme court decisions since 2012 finding that construction defects constituted an occurrence (for example, New Jersey). Days after publishing our post on the Tenth Circuit’s decision, the Kentucky Supreme Court faced the same question. But rather than join the growing trend, the Kentucky court doubled down on its previous decision addressing the issue, finding for a second time since 2010 that a contractor’s faulty workmanship was not an “occurrence” under a CGL policy.

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California-supreme-court-300x300By statute, California law holds that willful misconduct—where an insured intends to cause someone harm—is not insurable as a matter of public policy. For years, insurance companies have sought to expand this prohibition to exclude coverage where anyone acts deliberately, regardless of the intent of the insured, or the insured’s intent to cause harm.

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Developers need to keep an open mind to protect themselves against construction defect claims. Insurance is a vital tool, but it should not be the only one in a developer’s risk management toolbox.iStock-645199404-apartments-300x203

Another useful tool—the ability to disclaim all liability for future construction defect claims when the property is sold to a third party and converted to condominiums—was recently upheld in South Carolina. In Long Grove at Seaside Farms, LLC et al. v Long Grove Property Owners’ Association Inc. et al., the South Carolina Supreme Court dismissed a previously accepted writ of certiorari as improvidently granted, thereby upholding the decisions of the trial and appellate courts dismissing defective construction claims brought by a condominium association against the original developer of an apartment complex.

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Insurance agreement language that precludes coverage in CGL policies for “expected or intended” injuries has been analyzed in nearly every jurisdiction, and courts have consistently held that bodilyiStock-696254566-train-300x200 injury or property damage is excluded only if the insurer can demonstrate resulting damage was expected or intended by the insured. In Certain Underwriters at Lloyd’s, London v. Connex Railroad LLC, an insurer-friendly variation of these provisions was called into question in possibly the worst texting and driving scenario imaginable. Still, a California Court of Appeal applying New York law refused to bar coverage.

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It is axiomatic that in order to obtain insurance coverage a policyholder must first establish that a claim falls within a policy’s insuring agreement before coverage under the policy is triggered. iStock-687501466-engineering-300x200For construction claims brought under CGL policies, that frequently means showing that the damages at issue constitute “property damage” caused by an “occurrence” (where “occurrence” is generally defined as “an accident”). While this requirement may often seem like a simple factual question, in the context of a subcontractor’s faulty workmanship, the analysis has proven more difficult. Where alleged faulty work causes damage only to the insured’s own work product, is the property damage accidental?

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