Construction Defect Claims: Don t Let Your Money Fall Through the Cracks

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1 Cnstructin Defect Claims: Dn t Let Yur Mney Fall Thrugh the Cracks Presenters: Paul Batman Matthew Schlesinger Recrding f this sessin via any media type is strictly prhibited. Page 1

2 Paul Batman, Directr f Risk Management, Prmetheus Real Estate Grup, Inc. Paul has nearly twenty years experience as risk manager fr varius cmpanies, including serving as a risk management cnsultant in KPMG s Insurance and Risk Management practice. Matthew J. Schlesinger, Partner, Reed Smith LLP Matt has recvered hundreds f millins f dllars in insurance cverage disputes natinwide fr Frtune 500 and ther plicyhlder crpratins and cunsels clients n renewals and insurance related issues. Matt is listed as a Washingtn, DC Super Lawyer. Recrding f this sessin via any media type is strictly prhibited. Page 2

3 What Yu Will Learn Types f ptentially applicable cverage purchasing the best cverage. Tips n managing a cnstructin defect lss. Ht buttn legal issues and emerging legal trends. Recrding f this sessin via any media type is strictly prhibited. Page 3

4 Recrding f this sessin via any media type is strictly prhibited. Page 4

5 Case Study Develper builds large multi hme cmplex Several years after cmpletin, residents start t cmplain abut mld Several cnstructin defects resulted in: water infiltratin thrugh rfs, windws and drs; cndensatin in HVAC systems and washer/dryer clsets; gaps in subflring, etc. Rip and tear wrk required Sme f the defective wrk was perfrmed by subcntractrs Recrding f this sessin via any media type is strictly prhibited. Page 5

6 Purchasing the Right/Best Cverage Builders Risk Insurance First party/ cverage fr buildings & prperty/business interruptin during cnstructin Replacement Cst Value (RCV) subject t Actual Cst Valuatin (ACV) hldback Insureds: wner/develper, general cntractr, ften subcntractrs Key exclusins: faulty r defective wrkmanship, material, design; mld/pllutin; cverage terminatin fr partial use First Party/BI First Party Cverage after cnstructin is cmpleted Recrding f this sessin via any media type is strictly prhibited. Page 6

7 Purchasing the Right/Best Cverage CGL (Cmmercial General Liability) Third party cverage fr bdily injury/prperty damage arising ut f premises, prducts, cmpleted ps, persnal/advertising injury Triggered by an ccurrence (accident r cntinuus expsure t the same cnditins) Typical exclusin fr liability cvered under a prject specific plicy, like an OCIP Yur Wrk Exclusin (L): PD t yur wrk but des nt apply if the wrk was perfrmed by a sub cntractr Impaired Prperty Exclusin (M): PD t ther prperty that cannt be used because f yur wrk r yur prduct Pllutin Exclusin Recrding f this sessin via any media type is strictly prhibited. Page 7

8 Purchasing the Right/Best Cverage CIP (Cnslidated Insurance Prgram) Builders risk, CGL and wrkers cmpensatin Purchased by the wner (OCIP) r cntractr (CCIP) r a cmbinatin f participating parties Cvers mst r all parties wrking n a cmmn prject Pssible benefits: greater cntrl f the scpe f cverage, lwer insurance csts, and reduced litigatin amng participants; better cntrl ver safety and claims handling Recrding f this sessin via any media type is strictly prhibited. Page 8

9 Purchasing the Right/Best Cverage Envirnmental Liability (Pllutin Legal Liability r Cntractrs Pllutin Liability) PLL cvers previusly unknwn r newly discvered cnditins. Can include re pener cverage fr previusly remediated site CPL cvers disturbance f pre existing pllutin r creatin f new pllutin (mld, il spill, etc.) by cnstructin wrk Recrding f this sessin via any media type is strictly prhibited. Page 9

10 Purchasing the Right/Best Cverage Key cnsideratins: First party cverage/third party cverage Operatins and prducts cmpleted peratins cverage Cverage fr subcntractr s wrk and prducts Primary, nn cntributry ther insurance language Builder s Risk Issues: Clarify terminatin f cverage t accmmdate partial cmpletin/ccupancy Sft csts cverage ACV gap (if prject is a renvatin, rather than new cnstructin, cverage fr existing structure will likely be RCV) Recrding f this sessin via any media type is strictly prhibited. Page 10

11 Key Steps After Learning f Lss Secure the site; assess the damage; mitigate if necessary; phtgraph/vide and dcument Obtain insurance plicies Ntify insurers ASAP Review the cnstructin cntracts fr indemnity bligatins and risk transfer prvisins Recrding f this sessin via any media type is strictly prhibited. Page 11

12 Key Steps After Learning f Lss Assess ptential fr liability Faulty wrkmanship (subcntractrs & GC) Faulty site management (GC) Design Flaw (A&E) Manufacturer s Defect (Manufacturer/Supplier) Request that all insurers be put n ntice D nt settle any claims withut insurer cnsent Cntact insurer s subrgatin team ASAP Recrding f this sessin via any media type is strictly prhibited. Page 12

13 Key Steps After Learning f Lss Invite the insurers t inspect, but maintain cntrl D nt speculate as t cause Try t get all parties wrking tgether t: determine cause; frmulate remediatin plan; share infrmatin; reslve disputes Obtain insurer cnsent befre spending/paying mney ptentially cvered KEEP INSURERS INVOLVED THROUGHOUT THE ENTIRE PROCESS Recrding f this sessin via any media type is strictly prhibited. Page 13

14 Legal Issues Occurrence under CGL GenRe Research, Insurance Issues (Sept. 2013) Recrding f this sessin via any media type is strictly prhibited. Page 14

15 Legal Issues Occurrence under CGL N : Defective cnstructin wrk and resulting damage is nt an accident, but rather, a freseeable business risk. CGL plicies are nt perfrmance bnds (e.g., AZ, KY, NJ, NY, OH, PA) Yes : Faulty r defective wrkmanship, r at least the resulting damage, is frtuitus and unintended (e.g., AL, CT, FL, ND, TX, WI, WV) State legislatures have sught t clarify that cnstructin defects are ccurrences (e.g., AR, CO, HI, SC) But, sme curts have precluded in spite f statutes. See, e.g., Bennett & Bennett Cnstr. v. Aut Owners Ins. C. (S.C. 2013) Recrding f this sessin via any media type is strictly prhibited. Page 15

16 Legal Issues Occurrence under CGL Owners Ins. C. v. Jim Carr Hmebuilder (Ala. 2014) Defective installatins (flashing, brick/mrtar, windws, caulking, rf) caused $1.2M in water damage t hme Insurer argued any damage was t the cntractr s wn prduct the huse and nt cvered Curt agreed in prir ruling Ct.: While CGL plicies d nt cver the cst t repair/replace the faulty wrkmanship itself, the surrunding damage i.e., t the rest f the huse is cvered Recrding f this sessin via any media type is strictly prhibited. Page 16

17 Legal Issues Occurrence under CGL Taylr Mrrisn Services v. HDI Gerling (Ga. 2013) Defective fundatin led t water intrusin, cracked flrs and driveways, warped and buckling flring Fr there t be an ccurrence, n need fr prperty damage beynd the insured s wrk itself A claim fr breach f warranty may cnstitute an ccurrence Still, cst f replacing defective wrk i.e., a windw may nt be cvered Recrding f this sessin via any media type is strictly prhibited. Page 17

18 Legal Issues Occurrence under CGL Aviding ccurrence uncertainty May be able t negtiate language t avid this issue. Fr example, endrsement prviding that cverage fr cnstructin defects will be prvided under the law f the mst favrable state where plicyhlder cnducts business Prvides certainty and cnsistency f cverage; result des nt change depending n jurisdictin Beware a chice f law prvisin Recrding f this sessin via any media type is strictly prhibited. Page 18

19 Legal Issues Rip and Tear? Are rip and tear (a.k.a., get t ) damages cvered? Frequent pint f cntentin whether damages caused by the need t remve r replace nn defective wrk t get t and repair defective wrk r prducts is cvered Yes (e.g., AK, CO, KS, MO, OH, TX, WA) N (e.g, AZ, GA, SC) Recrding f this sessin via any media type is strictly prhibited. Page 19

20 Legal Issues Rip and Tear? Clrad Pl v. Scttsdale (C. Ct. App. 2012) Subcntractr frced by General t re d a pl and the deck, sidewalk, retaining wall and electrical cnduits were damaged in the prcess Ct: demlishing and replacing the pl uncvered, but rip and tear damage t the nn defective ther wrk was cvered Recrding f this sessin via any media type is strictly prhibited. Page 20

21 Legal Issues Rip and Tear? Builders Mut. Ins. C. v. Lacey Cnstr. C., Inc. (D.S.C. 2012) Negligently cnstructed retaining walls failed t retain sil; caused cracks in fundatin Ct: insurer was nt bligated t indemnify fr csts t repair and replace walls, nr was insurer bligated t indemnify any incidental demlitin r recnstructin necessitated by the repair Recrding f this sessin via any media type is strictly prhibited. Page 21

22 Legal Issues Cntractual Liability Ewing Cnstructin v. Amerisure (Tex. Jan. 17, 2014) Tennis curts started cracking Insurer refused t defend cntended cntractual liability exclusin precluded cverage b/c (i) cntractrs assume duty t perfrm wrk in gd and wrkmanlike manner; and (ii) liability assumed in a cntract is excluded Ct: exclusin des nt apply unless cntractual liability beynd nrmal cmmn law perfrmance duty NOTE: CGL cverage wuld be gutted fr cntractrs wh wrk under cntract (virtually all d) Recrding f this sessin via any media type is strictly prhibited. Page 22

23 Legal Issues Cntractual Liability Clny Nat l Ins. C. v. Manitex (5th Cir. 2012) Plicyhlder purchased cranes, and assumed assciated liabilities frm seller Insurer denied cverage cntended that plicyhlder assumed nly cntract liabilities, s insured cntract exceptin t cntractual liability exclusin (fr assumptin f trt liability) did nt apply Ct: cverage was excluded; plicyhlder s liability arse strictly frm cntract, i.e., the purchase agreement. Liability wuld nt have been impsed by law in the absence f any cntract r agreement Recrding f this sessin via any media type is strictly prhibited. Page 23

24 Legal Issues Additinal Insured Carl E. Wdward v. Acceptance, (5 th Cir. Feb. 14, 2014) Claim that cncrete subcntractr did nt prperly build fundatin piers Plicy prvided additinal insured cverage t Wdward (a large cnstructin firm) arising ut f the subcntractr s nging peratins, but nt cmpleted peratins Ct: Liability fr [the cnstructin] damages arises ut f cmpleted peratins, fr which Wdward was nt an additinal insured.... Thugh the damage, as ppsed t the liability, likely ccurred during the sub s nging peratins Recrding f this sessin via any media type is strictly prhibited. Page 24

25 Legal Issues Additinal Insured Insurance industry has made effrts t narrw scpe f additinal insured cverage. See Carl E. Wdward LLC v. Acceptance Indem. Ins. C. (5th Cir. 2014) Effective April 1, 2013, ISO intrduced revised suite f AIEs. Fur principle changes: 1) T the extent permitted by law 2) Nt brader than... required by the Cntract 3) Lesser f that required by cntract r the Plicy 4) N direct cntractual relatinship needed Recrding f this sessin via any media type is strictly prhibited. Page 25

26 Legal Issues Additinal Insured Avid pssible gaps in cverage T the extent permitted by law Cmpare AIE with relevant state laws: will yu have the requisite upstream and/r dwnstream cverage fr yur prject? Nt brader than....required by cntract Review indemnificatin bligatins under cnstructin cntracts, and cntractual insurance requirements in particular. May affect scpe f cverage Lesser f that required by cntract r the Plicy Cmpare plicies limits f liability t cnstructin cntract indemnificatin requirements Recrding f this sessin via any media type is strictly prhibited. Page 26

27 Legal Issues Yur Wrk Exclusin Cherringtn v. Erie Ins. Prp. & Cas. (W. Va. 2013) Uneven cncrete flring, water infiltratin thrugh rf and chimney jints, sagging supprt beam, cracks in drywall Plicy excepted subcntractrs wrk frm yur wrk exclusin, but anther exclusin excluded yur wrk and wrk perfrmed by thers n yur behalf Ct. tw exclusins cnflict; cannt allw plicy t give cverage in ne exclusin and take it away in the next. Subcntractr s defective wrk is cvered Ct. als held that defective cnstructin can be an ccurrence and faulty wrk itself my cnstitute prperty damage Recrding f this sessin via any media type is strictly prhibited. Page 27

28 Case Study A Cautinary Tale Key cverage issues: Additinal named insureds: cverage fr claims made against subcntractr, management cmpany, and ther nn insured defendants? Insurer demanded allcatin cvered and nn cvered entities. N first party mld cverage: enhanced mld cverage, but nly fr third party claims. Client practively addressed cmplaints, and insurer denied because n written demand r written ntice. Als ran aful f n vluntary payment prvisin. Excluded maintenance csts: Residents requested mld inspectin and remediatins by clicking n website maintenance request link. Insurer denied excluded as maintenance, upgrades, imprvements, r installatins. Recrding f this sessin via any media type is strictly prhibited. Page 28

29 Questins, Cmments and Cntact Infrmatin Paul Batman Prmetheus Real Estate Grup, Inc. Phne: (650) Matthew J. Schlesinger Reed Smith LLP Phne: (202) Recrding f this sessin via any media type is strictly prhibited. Page 29

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