July 16, 2013

South Carolina court rejects theory of seamless coverage

Source: http://www.lexology.com, July 12, 2013
Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP

In its recent decision in GS2 Engineering & Environmental Consultants, Inc. v. Zurich American Ins. Co., 2013 U.S. Dist. LEXIS 95137 (D.S.C. July 9, 2013), the United State District Court for South Carolina had occasion to consider the limitations of coverage inherent in a claims made and reported policy.

Steadfast Insurance Company insured GS2 under a series of claims made and reported contractors’ pollution liability policies. At issue were the policies in effect for the periods August 7, 2009 to August 7, 2010 and August 7, 2010 to August 7, 2011. The policies were similar in all material respects. The policies’ insuring agreements stated plainly that coverage was available only for claims first made during the policy period and reported to the insurer during the policy period or an extended reporting period, if applicable. The policies provided for an automatic thirty day extended reporting period, and the option to provide a lengthier extended reporting period, upon termination of the policy, defined as “all theories of liability (direct or vicarious) asserted against any insured.” In August 2010, while the 09-10 policy was in effect, GS2 was served with a complaint. It failed to report the complaint to Steadfast prior to the August 7, 2010 expiration of its policy. It was not until September 23, 2010 – nearly six weeks into the 10-11 policy period – that the underlying claimant gave notice of the matter to Steadfast. GS2 only later gave formal notice of the suit to Steadfast in November 2010.…

June 12, 2013

New Florida statute allows limitation of design professional liability

Source: http://www.lexology.com, June 6, 2013
By: Jennifer W. Fletcher, Michael G. Kerman, Kent W. Collier , Jennifer S. Lowndes and Laura J. Stipanowich, Sutherland Asbill & Brennan LLP

Over the past fourteen years, third parties have been able to maintain a direct negligence cause of action against an individual design professional, such as an architect or engineer, arising out a construction project, despite the contractual arrangements being with the design professional’s employer.1 A new Florida statute will soon change this law.

In other words, if a general contractor contracted with an architectural firm to perform design work, and an architect employed by the architectural firm was negligent in the design, then the owner (the contractor’s client) could maintain its defect claims against the contractor, the architect (assuming no economic loss issues), and the individual architect personally. Or, in the case of a design/build firm, the action could be maintained individually against the architect employed by the design/build firm.…

May 1, 2013

FL Water Pollution Bill Up for Vote

Read here about a water pollution bill that is up for vote in Florida.…

April 12, 2013

Bacteria exclusion did not relieve insurer from duty to indemnify and defend wrongful death claim arising from hotel guest contracting legionnaires’ disease

Source: http://www.lexology.com, March 29, 2013
By: Kevin R. Fincel and John O’Connor, Steptoe & Johnson LLP

In Westport Insurance Corporation v. VN Hotel Group, LLC, et al., 2013 WL 1196957 (11th Cir. March 22, 2013), the Eleventh Circuit, applying Florida law, held that the fungi/bacteria exclusion in the policy at issue did not exclude from coverage injury resulting from the legionella bacteria; accordingly, the insurer had a duty to defend a wrongful death claim brought against the insureds.

The case arose out of an wrongful death suit filed by the wife of a hotel guest who died after contracting Legionnaires’ Disease at the insured’s hotel. Id. at *1. The insureds sought to have Westport indemnify them and defend against the suit. Id. Under Florida law, “[a]n insurer is under no duty to defend if the allegations in the complaint implicate a policy exclusion.” Id. at 3 (duty to defend it broader than duty to indemnify–insurer has no duty to indemnify if it has no duty to defend). Westport filed a declaratory judgment action seeking confirmation that it was not responsible for indemnifying and defending the insureds because the policy excluded coverage for injuries resulting from pollutants or bacteria. Id. at 1. Under the terms of the policy, there was no coverage for injury “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’” Id. The policy also excluded from coverage injury “which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any ‘fungi’ or bacteria on or within a building or structure, including its contents . . . .” Id. (emphasis added).…

March 21, 2013

Tampa metals recycler hopes for grant to help fund site cleanup

Source: Tampa Tribune, March 17, 2013
Posted on: http://envfpn.advisen.com

An East Tampa scrap yard is in line to become the city’s latest industrial site targeted for environmental cleanup.

Trademark Metals Recycling LLC has asked the city and state to designate property it owns in an industrial zone east of Ybor City as a brownfield. The designation opens up federal and state coffers for cleanup and redevelopment of contaminated land.

Trademark attorney Michael R. Goldstein said his clients plan to clean up the former Gulf Coast Metals site using the help of state brownfield tax credits. The property will continue to operate as an aluminum furnace, melting cast-off cans and other materials for resale.

The brownfield program will help clean up the property and expand operations, adding both jobs and taxes to the local economy, Goldstein said.

“We’re going to spend not an insignificant amount of money improving the site,” Goldstein said.

The Tampa City Council has set two public hearings on the brownfield request, at 6 p.m. April 11 and 10:30 a.m. May 2. Both hearings will be in Old City Hall’s council chambers downtown.

Tampa has 25 brownfield sites already. The list includes many, such as the Ikea site off State Road 60, that have been redeveloped. Outside the city, Hillsborough County has 14 more brownfields, according to the state Department of Environmental Protection.…

February 22, 2013

Pennsylvania court holds drywall claims arose out of single occurrence

Source: http://www.lexology.com, February 19, 2013
By: Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP

In its recent decision in Cincinnati Ins. Co. v. Devon International, 2013 U.S. Dist. LEXIS 20659 (E.D. Pa. Feb. 15, 2013), the United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law, had occasion to consider whether a series of Chinese drywall-related claims, arising out of the insured’s importation of a single batch of defective drywall, were properly considered a single occurrence, or multiple occurrences.

The insured, Devon, was a U.S.-based sourcing agent for Chinese manufactured products. In 2006, it was retained to procure drywall manufactured in China. Devon subsequently made a single purchase of drywall from Shandong – a Chinese manufacturer – and then shipped the drywall to Florida for use in construction. The majority of the drywall was shipped to Devon’s initial customer; however, Devon also sold a portion of the drywall to other individuals and entities in Florida for use in construction. In 2009, Devon received a letter from its initial customer seeking a defense and indemnification in connection with a “multitude” of Chinese drywall claims filed in several jurisdictions. These underlying plaintiffs alleged damage in late 2008 and throughout 2009.

Cincinnati Insurance Company insured Devon under consecutive general liability policies, the first of which was issued for the period November 20, 2008 to November 20, 2009, and the second for the period November 20, 2009 to November 20, 2010. The policies provided coverage for property damage arising out of an occurrence, but only to the extent the property damage occurred during the policy period. Cincinnati and Devon disputed whether the underlying claims should be considered multiple occurrences, thus potentially triggering coverage under both of Cincinnati’s policies, or a single occurrence triggering coverage only under one of the policies.…

December 17, 2012

Health Centers Find Opportunity in Brownfields

Source: New York Times Online, December 11, 2012
Posted on: http://envfpn.advisen.com

The community health center rising on a derelict corner here in West Philadelphia never would have broken ground if not for the asbestos inside the building that was demolished to make way for it. Because of the contamination, Spectrum Health Services received a $2 million federal cleanup grant, the first piece of a $14 million construction financing puzzle.

When complete, the 36,000-square-foot building will provide a new home for a health center that has been squeezed into a deteriorating strip mall nearby for decades. It will also be the latest in a nationwide trend to replace contaminated tracts in distressed neighborhoods with health centers, in essence taking a potential source of health problems for a community and turning it into a place for health care. In recent years, health care facilities have been built on cleaned-up sites in Florida, Colorado, New Hampshire, Minnesota, Oregon and California.

“These health care providers are getting good at it,” said Elizabeth Schilling, policy manager for Smart Growth America, an advocacy group. “They have internalized the idea that this is an opportunity for them.”

Because these sites are contaminated, many qualify for government tax credits and grants, providing health centers with vital seed money to build. Community health centers, by design, exist to serve populations in poor neighborhoods, where there also tend to be available but contaminated properties like old gas stations, repair shops and industrial sites.…

December 12, 2012

Colson Hicks takes on Miami garage collapse lawsuit

Source: South Florida Business Journal, December 4, 2012
By: Paul Brinkmann

One of South Florida’s best-known plaintiffs firms, Coral Gables-based Colson Hicks Eidson, is among the first to handle a lawsuit connected to the Oct. 10 Miami Dade College parking garage collapse in Doral.

Colson Hicks attorney Ervin Gonzalez, is representing Migdalia Lopez, widow of Samuel Perez, who died after he was trapped in a truck for 17 hours and had his legs amputated. Another Coral Gables law firm – Bello, Martinez and Ramirez – is co-counsel on the case.

The suit names Tallahassee-based Ajax Building Corp.; MAR Contracting of Doral; MEP Structural Engineering and Inspections of Coconut Creek; engineering firm Bliss & Nyitray, Coral Gables; and architecture firm Harvard Jolly of St. Petersburg.

Perez, 53, was one of four construction workers killed after a parking garage that was under construction. He was driving a cement truck at the project site during the time of the collapse.

The lawsuit demands judgment against the defendants for all damages recoverable under the Florida Wrongful Death Act. The complaint alleges gross negligence, breach of duty and a failure to comply with minimal standards required to ensure site safety, construction means and methods, inspection, and follow up, including rushing the operation to meet a deadline.

The lawsuit alleges the defendants were well aware of the dangers associated with the construction method and concealed or misrepresented the dangers.

Gonzalez is a well-known plaintiffs lawyer who has recently been in the news as a member of the steering committee for national litigation over defective Chinese drywall.

In a news release, he said defendants in the college parking garage lawsuit “built a house of cards with a conscious disregard for the dangers associated with the project, and it eventually came tumbling down, killing innocent people and devastating families.”

Perez worked in the construction industry for 20 years after migrating to Miami from Cuba.…

December 5, 2012

NH cleanup plan being reviewed

Read here about a New Hampshire plan to cleanup an old firearms manufacturing site that is being reviewed.


December 5, 2012

Virginia Supreme Court Rules TravCo Homeowners’ Policy Does Not Cover Chinese Drywall Claim

Source: BestWire Services, November 15, 2012
Posted on: http://envfpn.advisen.com

The Virginia Supreme Court has ruled TravCo Insurance Co.’s “all-risk” homeowners’ insurance policy did not cover claims regarding defective Chinese drywall.

The case was filed by Larry Ward, who bought a home in Virginia Beach and a homeowners insurance policy from TravCo in 2007 that was later renewed through 2010. In 2009, Ward experienced problems with the home that an expert related to Chinese drywall and filed a claim with TravCo saying the drywall caused health issues and damaged his air conditioning system, garage door and flat screen televisions. TravCo denied the claim, saying the damage was excluded from coverage by the terms of Ward’s policy, which excluded losses caused by latent defects; faulty, inadequate, or defective materials, rust or corrosion; and pollutants, defined to include any gaseous irritant or contaminant.

TravCo then went to the U.S. District Court for the Eastern District of Virginia, asking the court to throw out the claim based on the exclusions in the policy and it did so. Ward appealed to the U.S. Fourth Circuit, which put the questions concerning whether drywall damage is excluded from the “all-risk” policy to the Virginia Supreme Court. Attempts to get comment from TravCo were unsuccessful.

In the Nov. 1 ruling, the court said Virginia insurance contract interpretation governed the case and said the plain language of the insurance policy showed that “each of the four exclusions is unambiguous and excludes damage resulting from the Chinese drywall from coverage.” The ruling said the homeowners policy latent defect exclusion provides that TravCo did not insure for loss caused by “latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself.”…