SDV Insights

SDV attorneys spend a lot of time reviewing insurance policies for our construction industry clients. From analyzing policies that are meant to provide additional insured coverage to our general contractor clients, to parsing through OCIP and CCIP placements sent to us by our broker colleagues, we've seen it all. Sometimes coverage can be a scary thing, so in honor of Halloween, here is our "Top 10 List of Scariest Insurance Policy Terms" we've seen over the past year.

While I typically discuss cases concerning pollution, today I will change a few letters around and discuss pollination. The case, Unigard Insurance Co. et al. v. George Perry and Sons Inc. et al., asks whether there is coverage for a lawsuit brought against a commercial farm that is alleged to have killed off bee colonies used for pollination.

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.

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.

Lloyd's of London has authorized its syndicates to underwrite insurance for the cannabis industry in the newly-legalized Canadian market. As of October 17, 2018, the Canadian cannabis industry will become legal at the highest national level.

The European Union's General Data Protection Regulation (GDPR) went into effect on May 25, 2018, and despite the publicity and prognoses of doom, it did not have any immediate earth-shattering effects. At most, you may have noticed a flood of requests to re-subscribe to websites or to review a company's updated privacy policy. In fact, many non-EU-based businesses may not even notice that the GDPR is now effective because they have been dismissing it as a regulation that "does not apply to us."

Recently, National Casualty Company ("National") filed suit in the Southern District of California, claiming that it should not be required to cover court-imposed sanctions against its insured, the National Strength and Conditioning Association ("NSCA"). The sanctions were imposed after CrossFit Inc. ("CrossFit") acquired judgments against the NSCA in two false advertising suits based on a study published by the NSCA that depicted false information about injuries in CrossFit.

In a recent pro-policyholder decision, a federal court in Colorado ruled that, under Massachusetts law, an insurer must defend an au pair placement agency under its Travel Agents and Tour Operators General and Professional Liability Policy in a class action lawsuit alleging that the agency conspired to set au pair rates of compensation below market rate in violation of federal and state minimum wage laws and consumer protection laws.

The New York Court of Appeals recently upheld a prior appellate division decision finding that policyholders facing environmental claims, spanning multiple years, cannot force their insurers partially on the risk to provide coverage for years where the insurers did not issue policies, even though pollution insurance was unavailable in the marketplace.

The extreme cost and harm of the opioid crisis in the United States is well-documented, and the California Supreme Court is set to decide if insurance coverage is in play for many related lawsuits. Courts across the country have seen an influx of lawsuits filed against pharmaceutical companies for their role in the ongoing epidemic. The allegations have come from all over and in many forms, from wrongful death and personal injury claims to products liability and derivative suits.