SDV Insights

Construction Insights

Top 10 Insurance Cases of 2018

2018 was a year of landmark decisions regarding insurance coverage for a variety of emerging claims, including cyber fraud, the "me too" movement, and wildfires. Read on to learn more as well as to find out what cases you should keep your eye on as 2019 unfolds.

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Insurer's Knowing Violation of Texas Insurance Code May Entitle Insured to Treble Damages

The Fifth Circuit's recent opinion in Lyda Swinerton Builders, Inc. v. Oklahoma Sur. Co. includes policyholder-friendly holdings on Texas law concerning the duty to defend and the potential to recover treble damages for an insurer's knowing violation of Texas Insurance Code. In this case, the Fifth Circuit did justice to the broad scope of the duty to defend, making inferences from the complaint and the policy to find a potential of coverage.

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Texas Court Requires Insurer to Defend GC Despite Breach of Contract Exclusion

In a suit filed by an owner against a general contractor for alleged construction defects at a new sports complex, the general contractor's commercial general liability insurer failed to defend its insured. The Western District of Texas ruled in the general contractor's favor and found that the insurer had a duty to defend, despite a breach of contract exclusion in the general contractor's GL policy.

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Fourth Circuit Rejects Application of Wrap-Up Exclusion to Additional Insured

Utilizing an owner-controlled or contractor-controlled insurance program (collectively known as "wrap-ups") can reduce claims, save costs, and give owners and general contractors comfort in knowing their project is adequately insured. However, problems often arise when a subcontractor doesn't enroll in the wrap-up and, instead, agrees to provide additional insured coverage to the owner and general contractor on the subcontractor's own general liability policy.

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Effects of Amendment to Florida's Statute of Repose on the Products Completed Operations Hazard

Recent amendments to Florida's Statute of Repose have resulted in concerns as to the scope of risk Florida homebuilders face as a result, and the availability of insurance coverage for such exposures. Previously, the statute provided for a strict, yet straightforward 10-year limitation for latent construction defect claims.

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OH Supreme Court Rules Against General Contractor in Construction Defect Coverage Dispute

On October 9, 2018, the Ohio Supreme Court issued a decision in Ohio Northern University v. Charles Construction Services, Inc., Slip Op. 2018-Ohio-4057, finding that a general contractor was not entitled to defense or indemnity from its CGL insurer in a construction defect suit brought by a project owner post-project completion.

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The Outer Limits: Indiana Federal Court Refuses to Apply Interrelated Wrongful Acts Exclusion in D&O Coverage Dispute

In a recent pro-policyholder decision, an Indiana federal court held that a common, broadly-worded exclusion in Directors & Officers ("D&O") insurance for "Interrelated Wrongful Act[s]" did not preclude coverage, since a literal interpretation would produce "absurd" results. In the past, the all-encompassing language of the exclusion has been abused by insurers who have sought to construe the concept of "interrelation" so broadly as to exclude coverage for otherwise covered claims.

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New York Court of Appeals Addresses Choice of Law Challenges

In June, the New York Court of Appeals examined the application of a New York Choice of Law provision in a contract - a determinative issue for the case. In Ontario, Inc. v. Samsung C&T Corp., the issue was whether the plaintiff's claims were subject to Ontario, Canada's 2-year statute of limitations or New York's 6-year statute of limitations for breach of contract where the contract contained a broad New York Choice of Law provision.

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Additional Insured Coverage Dispute: Vivify v. Nautilus

Additional insured coverage for bodily injury to a downstream party's employees is one of the foremost considerations in any traditional risk transfer scheme. Upstream and downstream parties alike generally intend for the downstream party's insurance to respond to these claims--before the upstream party's insurance and in lieu of a contractual indemnity claim.

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Whose Contract Is It Anyway: Gilbane Decision Requires Contractual Privity

As previously addressed in "Whose Contract Is It Anyway: Addressing the Contractual Privity Problem," additional insured coverage under Insurance Services Office, Inc. (ISO), standard blanket additional insured endorsements is often conditioned, in part, on the existence of a written contract requiring additional insured coverage.

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