Author Archives: Gus Sara

Construction Defect

Massachusetts District Court Holds Contractors Are Not Additional Insureds on Developer’s Builder’s Risk Policy

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In Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020 U.S. Dist. LEXIS 95403 (Skanska), the United States District Court for the District of Massachusetts considered whether contractors on a construction job were additional insureds on the developer’s builder’s risk insurance policy. After a water loss occurred during construction, the builder’s risk insurance carrier paid its named insured for the resultant damage, and subsequently filed a subrogation action against two contractors. The defendants filed a motion for summary judgment, claiming that the anti-subrogation rule barred the carrier from subrogating against them because they were additional insureds on the policy. The court found that based on the particular language of the additional insured provision in the policy, the defendants were not additional insureds for purposes of the subrogation action. Continue reading

This entry was posted in Anti-Subrogation Rule, Insurance Coverage, Massachusetts, Subrogation and tagged , , , , .
Community Buildings

Virginia Allows Condominium Association’s Insurer to Subrogate Against a Condominium Tenant

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In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding that the insurance policy only named unit owners as additional insureds, not tenants, and thus the subrogation waiver in the insurance policy did not apply to tenants. The court also found that the condominium association’s governing documents provided no protections to the unit owner’s tenant because the tenant was not a party to those documents. This case establishes that, in Virginia, a condominium association’s insurance carrier can subrogate against a unit owner’s tenant where the tenant is not identified as an additional insured on the policy.

The Alba case involved a fire at a condominium building originating in a unit occupied by Naomi Alba (Alba), who leased the condominium under a rental agreement with the unit owner, John Sailsman (Sailsman). The agreement explicitly held Alba responsible for her conduct and the conduct of her guests. An addendum to the lease stated that Sailsman’s property insurance only applied to the “dwelling itself” and that Alba was required to purchase renters insurance to protect her personal property. Along with the rental agreement, Alba received the condominium association’s Rules & Regulations, Declarations and Bylaws. Continue reading

This entry was posted in Implied-Co-Insured, Subrogation – Equitable, Virginia, Waiver of Subrogation and tagged , , , .

New Jersey Supreme Court Requires Proof of Diminution of Market Value to Establish Damages

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In Kornbleuth v. Westover, 2020 N.J. LEXIS 298, the Supreme Court of New Jersey considered whether the trail court properly dismissed the plaintiffs’ trespass claim against their neighbors for failing to offer evidence of diminution of the market value of their property. The Supreme Court upheld the dismissal, finding that the plaintiffs’ damages could not be determined, as a matter of law, because they did not offer evidence of the diminution of market value of their property as a result of the trespass. Although the plaintiffs presented evidence of the cost to restore the property, the court held that determining the applicable measure of damages for a trespass claim is dependent on the diminution of market value and whether or not the restoration costs are proportionate to that value. Continue reading

This entry was posted in Damages - Real Property, Litigation, New Jersey and tagged , , .

Mississippi Supreme Court Applies AIA Subrogation Waiver to Non-Work Property Damage

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In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing., L.L.C., No. 2019-FC-10285-SCT, 2020 Miss. LEXIS 44, the Supreme Court of Mississippi considered whether the subrogation waiver in the General Conditions of the Construction Contract, American Institute of Architects (AIA) form A201-2007, applied to claims for damages to property unrelated to the construction work. Siding with the majority of jurisdictions that have addressed this issue, the court interpreted the AIA subrogation waiver to apply to any property damage, whether or not related to the construction work (i.e. the Work), if the property insurance covering the non-Work property also insured the construction work. Continue reading

This entry was posted in AIA Contracts, Construction Defects, Contracts, Mississippi, Subrogation, Waiver of Subrogation and tagged , , , , , .
Water Loss

Commercial Tenant’s Subrogating Insurer Barred by Lease Terms from Pursuing Landlord

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In Travelers Indem. Co. of Am. v. Schwarz Props., L.L.C., 2020 U.S. Dist. LEXIS 18176, the United States District Court for the Western District of North Carolina considered whether the lease between a commercial tenant and its landlord barred the tenant’s insurance carrier from subrogating against the landlord for damages to the tenant’s goods. The court found that the tenant’s carrier could not subrogate against the landlord because the lease clearly and explicitly stated that the landlord was not responsible for the tenant’s property. In addition, the lease required the tenant to insure its own property and to hold the landlord harmless for any damage to the tenant’s goods. This case establishes that, in North Carolina, negligence claims between a landlord and tenant may be barred if the lease includes clear and explicit exculpatory and indemnification provisions. Continue reading

This entry was posted in Landlord-Tenant, North Carolina, Subrogation, Sutton Doctrine and tagged , , , , .

Wisconsin Supreme Court Induced to Narrowly Interpret Exceptions to the Economic Loss Doctrine

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In Hinrichs v. Dow Chem. Co., 2020 WI 2, 2020 Wisc. LEXIS 2 (2020), the Supreme Court of Wisconsin considered whether two recognized exceptions to the economic loss doctrine—the “fraud in the inducement” and “other property” exceptions—applied to allow the plaintiffs’ tort claims to go forward. The court held that the fraud in the inducement exception only applies to alleged fraud that is unrelated to either the quality or characteristics of the product for which the parties contracted or performance of the contract. In addition, the court held that the fraud in the inducement exception did not apply to the plaintiffs’ tort claims because the alleged fraud was related to the quality and characteristics of the product, and thus was not extraneous to the contract. The court also held that the “other property” exception to the economic loss doctrine did not apply because the product at issue was integrated into a more complete product, and when that happened, the completed product ceased to be “other property” for purposes of the economic loss doctrine. This case narrows the application of two exceptions to the economic loss doctrine, which is a common defense in product defect cases. Continue reading

This entry was posted in Economic Loss Rule, Fraud - Misrepresentation, Products Liability, Wisconsin and tagged , , .
Large Property Loss

Massachusetts Court Holds Statute of Repose Does Not Apply to Claims for Failure to Maintain Property

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In Penn-America Insurance Company v. Bay State Gas Company, 96 Mass. App. Ct. 757 (2019), the Appeals Court of Massachusetts considered whether the plaintiff’s claims against the defendant, arising from an alleged defect in the defendant’s natural gas line, were time-barred by the six-year statute of repose for improvements to real property. The Appeals Court held that the statute of repose did not apply to the plaintiff’s claims, which were related to the defendant’s alleged failure to maintain its property. Thus, in Massachusetts, the statute of repose does not apply if the plaintiff’s claim is rooted in the failure to maintain an improvement, rather than negligent design or construction of the improvement. Continue reading

This entry was posted in Construction Defects, Massachusetts, Statute of Limitations-Repose, Subrogation and tagged , , , .

Establishing Proximate Cause Where Both Roads Lead to the Defendant

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In Westfield Ins. Group v. Pure Renovations, LLC, 2019-Ohio-4773, 2019 Ohio App. LEXIS 4829, the Court of Appeals of Ohio considered whether the lower court properly granted the defendant’s summary judgment motion. In its motion, the defendant argued that the plaintiff could not prove that the defendant’s conduct was the proximate cause of the fire at issue because the plaintiff’s liability expert identified two possible causes of the fire. The Court of Appeals, finding issues of fact remain as to whether the defendant was solely responsible for both possible causes, reversed the summary judgment ruling. This case establishes that, in Ohio, if all likely causes implicate solely the defendant’s alleged negligent conduct, a plaintiff’s inability to identify, definitively, one cause of a loss does not necessarily preclude the plaintiff from establishing proximate cause.

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This entry was posted in Causation, Negligence, Ohio and tagged , , .

Pennsylvania Superior Court Fires up a Case-By-Case Analysis for Landlord-Tenant, Implied Co-Insured Questions

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In Joella v. Cole, 2019 PA Super. 313, the Superior Court of Pennsylvania recently considered whether a tenant, alleged by the landlord’s property insurance carrier to have carelessly caused a fire, was an implied co-insured on the landlord’s policy. The court found that the tenant was an implied co-insured because the lease stated that the landlord would procure insurance for the building, which created a reasonable expectation that the tenant would be a co-insured under the policy. Since the tenant was an implied co-insured on the policy, the insurance carrier could not maintain a subrogation action against the tenant. This case confirms that Pennsylvania follows a case-by-case approach when determining whether a tenant was an implied co-insured on a landlord’s insurance policy. Continue reading

This entry was posted in Anti-Subrogation Rule, Landlord-Tenant, Pennsylvania, Subrogation, Sutton Doctrine and tagged , , .

California Clarifies Its Inverse Condemnation Standard

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In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims. Continue reading

This entry was posted in California, Government – Claims Against, Property and tagged , .