Justia Construction Law Opinion Summaries

Articles Posted in Insurance Law
by
Plaintiff-appellant Chris LaBarbera hired Richard Knight dba Knight Construction (Knight) to remodel a house pursuant to a contract that provided Knight would defend and indemnify LaBarbera for all claims arising out of the work. Knight obtained a general liability insurance policy from defendant-respondent Security National Insurance Company (Security National) that covered damages Knight was obligated to pay due to bodily injury to a third party. As relevant here, the policy also covered Knight’s “liability for damages . . . [a]ssumed in a contract or agreement that is an ‘insured contract.’ ” Security National acknowledged the indemnity provision in Knight’s contract with LaBarbera was an “insured contract” within the meaning of the policy. The policy also provided, “If we defend an insured [i.e., Knight] against a suit and an indemnitee of the insured [i.e., LaBarbera] is also named as a party to the suit, we will defend that indemnitee” if certain conditions were met. During the remodeling work, a subcontractor suffered catastrophic injuries, and sued both LaBarbera and Knight. LaBarbera’s liability insurer (plaintiff-appellant Lloyd's of London Underwriters) defended him in that lawsuit, and Security National defended Knight. LaBarbera also tendered his defense to Knight and to Security National, but they either ignored or rejected the tender. After settling the underlying lawsuit for $465,000, LaBarbera and Underwriters sued Knight and Security National, seeking to recover the full $465,000 settlement amount and over $100,000 in expenses and attorney fees incurred defending LaBarbera in that lawsuit. Security National moved for summary judgment on the ground that all claims against it were barred because the undisputed facts established it did not have an obligation to defend or indemnify LaBarbera. The trial court granted the motion and entered judgment in favor of Security National. LaBarbera and Underwriters appealed, but the Court of Appeal affirmed, adopting different reasoning than the trial court. The Court agreed with Security National that the indemnitee defense clause in Knight’s general liability insurance policy did not bestow third party beneficiary rights on the indemnitee, LaBarbera, who benefitted only incidentally from the clause. Because LaBarbera was not a third party beneficiary under Knight’s policy, he was precluded from bringing a direct action against Security National. View "LaBarbera, et al. v. Security Nat. Ins. Co." on Justia Law

by
Cope, injured on a Kentucky job site, filed a workers’ compensation claim. The subcontractor who hired him for the project, CMC, is based in Southern Indiana, and had an insurance policy with AFICA. Schultheis Insurance Agency procured the policy for CMC, but failed to inform AFICA that CMC did business in Kentucky. AFICA sought a declaration that its policy does not cover Cope’s claim.The district court granted AFICA summary judgment. The Seventh Circuit affirmed. The plain text of the policy is unambiguous: because CMC failed to notify AFICA until after Cope’s accident that it was working in Kentucky, AFICA is not liable for Cope’s workers’ compensation claim. The policy states : “If you have work on the effective date of this policy in any state [other than Indiana], coverage will not be afforded for that state unless we are notified within thirty days.” View "Accident Fund Insurance Co. v. Schultheis Insurance Agency, Inc." on Justia Law

by
The United States Federal District Court for the Western District of Washington certified a question of law to the Washington Supreme Court. Cox Construction was the general contractor of a remodeling project. Cox hired Baker & Son Construction, Inc. as a subcontractor. A Baker employee allegedly caused a two-by-four to fall from a railing and strike Ronnie Cox, owner of Cox Construction, who later died from his injury. Baker allegedly called an insurance agent to alert them of the incident. The agent told Baker that no action needed to be taken because at that time, no claim existed. A few months later, Baker received a wrongful death claim from an attorney representing Cox’s widow. Baker notified its insurer, Preferred Contractors Insurance Company (PCIC) of the claim. PCIC denied coverage, but agreed to defend Baker under a reservation of rights. The certified question to the Washington Supreme Court related to the “claims-made” nature of the policy and the timing of Baker’s tender of Ms. Cox’s claim. The Supreme Court replied to the certified question that in light of RCW 18.27, a contractor’s commercial general liability insurance policy that requires the loss to occur and be reported within the same policy year, and provides neither neither prospective nor retroactive coverage violates Washington’s public policy. View "Preferred Contractors Ins. Co. v. Baker & Son Constr., Inc." on Justia Law

by
The Supreme Court held that the Texas Workers' Compensation Act (TWCA) does not affect the enforceability of an additional-insured provision under the Texas Anti-Indemnity Act (TAIA).A general contractor's employee injured in an accident obtained a negligence judgment in Texas state court against the subcontractor that operated the crane (Berkel) and the company that leased the crane (Maxim). Berkel was an indemnity and Maxim was an indemnity for TAIA purposes because Berkel had provided Maxim with coverage as an additional insured. After the injured worker settled with Maxim, Maxim unsuccessfully sought reimbursement from Berkel's insurer (Zurich). The court of appeals reversed the judgment against Berkel, concluding that Berkel and the injured worker were "statutory co-employees" of the general contractor under the TWCA, and therefore, the TWCA provided the worker's exclusive remedy. In a separate suit in federal court, Maxim and Zurich disputed over whether the additional-insured coverage was enforceable. The Supreme Court answered a certified question by holding that the word "employee" in Tex. Ins. Code 151.103 bears its common meaning, which is not affected by whether the indemnity and injured employee are considered co-employees for purposes of the TWCA. View "Maxim Crane Works, LP v. Zurich American Insurance Co." on Justia Law

by
Grinnell Mutual Reinsurance Company appealed a district court judgment ordering it to pay Larry Pavlicek $214,045.55 under a commercial general liability insurance (CGL) policy Grinnell had with JRC Construction. Grinnell argued the district court misinterpreted the insurance policy, and that it was not required to indemnify JRC Construction because its work product was defective. In 2013, Pavlicek hired a contractor to construct a steel building on his property. JRC Construction installed the concrete floor and floor drain for the project. Another subcontractor installed the in-floor heating system for the concrete floor. After JRC completed the floor drain, it failed to properly install the concrete floor, and its attempts to repair the concrete damaged the drain. Pavlicek sued JRC for breach of contract relating to the defective work. In February 2020, Pavlicek filed a supplemental complaint against Grinnell, alleging it was required to satisfy the judgment as JRC’s insurer. Grinnell claimed it had no obligation to indemnify JRC under the CGL policy. The district court concluded JRC’s defective work on the concrete floor was not covered under the CGL policy, but damage to the floor drain was covered. Because removal and replacement of the floor and in-floor heat were necessary to repair the drain the court concluded the CGL policy covered all of those costs. The North Dakota Supreme Court found that although the CGL policy provided coverage to repair the floor drain, it did not cover the cost of replacing the concrete floor because that damage was the result of JRC’s defective work. The district court erred in finding the CGL policy covered the entire concrete floor replacement because replacement of the floor was the only way to repair the floor drain. Further, the Supreme Court found the district court erred in concluding the CGL policy provided coverage for replacement or repair of the in-floor heating system beyond that which may be necessary to repair the drain. View "Pavlicek v. American Steel Systems, Inc., et al." on Justia Law

by
Munoz sued general contractor, Bulley & Andrews, for injuries he sustained while an employee of its subcontractor, Bulley Concrete. Bulley & Andrews had paid workers’ compensation insurance premiums and benefits for the subcontractor and its employees. Each company has its own distinct federal tax identification number and files separate federal and state income tax returns. The companies have different presidents and employ different workers.The circuit court dismissed, finding that the genderal contractor was immune from the lawsuit under the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS 305/5(a). The appellate court affirmed.The Illinois Supreme Court reversed. The exclusive remedy provisions do not extend to a general contractor who is not the employee’s immediate employer. Immunity does not hinge on the payment of benefits. Bulley & Andrews had no legal obligation to provide workers’ compensation insurance for Bulley Concrete employees. The fact that Bulley Concrete was a subsidiary of Bulley & Andrews is of no import. If a parent company and its subsidiary are operated as separate entities, only the entity that was the immediate employer of the injured worker is entitled to immunity. The Act bars an employee from bringing a civil suit directly against his employer but does not limit the employee’s recovery from a third-party general contractor. View "Munoz v. Bulley & Andrews, LLC" on Justia Law

by
William Greenwood was in the business of salvaging valuable materials from old buildings. Greenwood was insured by Mesa Underwriters Specialty Insurance Company through a policy sold by Dixie Specialty Insurance. Greenwood was later sued by adjoining building owners who complained he had damaged their property, and Mesa denied coverage based, in part, on a policy exclusion for demolition work. Greenwood later brought suit against his insurers alleging breach of contract and bad-faith denial of coverage. Greenwood averred that his business was actually “deconstruction” rather than demolition, but the trial court granted summary judgment to the insurers. Finding no reversible error in that judgment, the Mississippi Supreme Court affirmed the trial court. View "Estate of Greenwood v. Montpelier US Insurance Company, et al." on Justia Law

by
In 2012, the Archdiocese purchased a roof membrane system from Siplast, for installation at a Bronx high school. Siplast guaranteed that the system would “remain in a watertight condition for a period of 20 years.” In 2016, school officials observed water damage in the ceiling tiles after a rainstorm and notified the installing contractor and Siplast. A designated Siplast contractor unsuccessfully attempted to repair the damage and prevent leaks. The Archdiocese ultimately obtained an estimate for remediation and replacement of approximately $5,000,000.The ensuing lawsuit alleged “Breach of the Guarantee” Siplast submitted a claim to its insurer, EMCC, asserting coverage under commercial general liability policies that covered “property damage” caused by an “occurrence,” defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policies were subject to exclusions for “Your Product/Your Work” and “Contractual Liability.” The district court granted EMCC summary judgment, finding that while the complaint did allege property damage that was caused by an “occurrence,” the alleged damage fit within the Your Product/Your Work Exclusion. The Fifth Circuit reversed, finding that EMCC had a duty to defend. The underlying complaint contains allegations of damage to property other than Siplast’s roof membrane as part of the claim against Siplast; the exclusion does not apply. View "Siplast, Inc. v. Employers Mutual Casualty Insurance Co." on Justia Law

by
All Seasons inspected SparrowHawk's warehouse roofs and discovered hail damage. Because All Seasons did not hold an Illinois roofing license, it arranged for Prate to serve as general contractor with All Seasons as subcontractor. All Seasons was to provide materials and labor, maintain safety, and supervise the project. All Seasons purchased a commercial general liability policy and general liability extension endorsement from United, listing Prate as an “additional insured” in a “vicarious liability endorsement.” All Seasons then subcontracted with Century. Ayala, a Century employee was working on a SparrowHawk warehouse when he fell to his death.The Illinois workers’ compensation system provided limited death benefits but precluded tort remedies against his direct employer, Century. Ayala’s estate sued Prate, All Seasons, and SparrowHawk. Prate tendered the defense to United, which declined to defend and sought a declaratory judgment. All Seasons and United reached a settlement with the estate, paying the policy limits.The district court granted Prate summary judgment. The Seventh Circuit affirmed, rejecting United’s argument that because its named insured was an independent contractor, Illinois law would not impose any liability on the additional insured and there was no risk of covered liability. The duty to defend depends on the claims the plaintiff asserts, not on their prospects for success. The settlement of the underlying claims against the named insured, however, removed any possibility that the additional insured might be held vicariously liable for actions of the named insured; the duty to defend ended when that settlement was consummated. View "United Fire & Casualty Co. v. Prate Roofing & Installations LLC" on Justia Law

by
Deerfield. the general contractor, subcontracted with P.S. Demolition, which agreed to indemnify and hold Deerfield harmless from all claims caused in whole or in part by P.S. P.S. employees were working at the site when an unsecured capstone fell, killing one and injuring another. The Illinois Workers’ Compensation Act limited P.S.’s liability to $5,993.91 and $25,229.15. The state court held that P.S. had waived the Kotecki cap that would ordinarily apply those limits to a third party (Deerfield) suing for contribution for its pro-rata share of common liability for a workplace injury. A bankruptcy court determined that P.S. had no assets; the state court determined that P.S.’s liability was limited to its available insurance coverage. Deerfield settled with the plaintiffs for substantially more than $75,000 plus an assignment of Deerfield’s contribution claim against P.S.StarNet, P.S.’s employer liability insurer, entered into a settlement with the plaintiffs, reserving its defenses to insurance coverage. The plaintiffs dismissed their negligence claims against P.S. The workers’ compensation and employers' liability policy issued to P.S. provides that StarNet will pay damages for which P.S. is liable to indemnify third parties, excluding “liability assumed under a contract, including any agreement to waive your right to limit your liability for contribution to the amount of benefits payable under the Workers Compensation Act ... This exclusion does not apply to a warranty that your work will be done in a workmanlike manner.The Seventh Circuit affirmed a declaratory judgment that StarNet owes P.S. no coverage for the employees’ injuries beyond the amounts specified by the Illinois Workers’ Compensation Act and the Kotecki cap. The court rejected arguments that P.S.’s liability in the personal injury action arose in part from P.S.’s failure to conduct the demolition in a workmanlike manner so that the exception applies. View "StarNet Insurance Co. v. Ruprecht" on Justia Law