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29 Apr 2014 NEWS ALERT: Alabama Supreme Court Withdraws and Re-Issues Decision to Find “Occurrence” for Construction Defect Claim

Last September, the Alabama Supreme Court issued a decision that denied insurance coverage to a homebuilder on the ground that there can be no “occurrence” where construction defect claims do not allege property damage to something other than the home the policyholder built. Owners Insurance Co. v. Jim Carr Homebuilder LLC, 2013 Ala. LEXIS 122, 2013 WL 5298575 (Ala. Sept. 20, 2013). In that decision, the court did not analyze the policy language to distinguish between damage to the insured’s project (which it held did not constitute an “occurrence”) and damage to other property or other parts of the structure (which it held could constitute an “occurrence”).   On March 28, 2014, the Alabama Supreme Court withdrew its earlier decision and issued a new decision…

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29 Apr 2014 General Contractor Held Not to Have Coverage as Additional Insured for Damage Arising Out of its Subcontractor’s “Completed Operations”

  The language contained in policy endorsements dramatically impacts the scope of coverage for additional insureds. In a recent decision, Carl E. Woodward, LLC v. Acceptance Indemnity Insurance, _____ F.3d ____ (5th Cir. 2014), the U.S. Court of Appeals for the Fifth Circuit overruled the district court’s determination that a general contractor was insured as an additional insured on its subcontractor’s commercial general liability (CGL) policy for claims arising out of the allegedly defective work performed by the subcontractor.   The case arose out of a project to build condominiums on the Mississippi Gulf Coast. The general contractor entered into a subcontract for concrete work and was named as an additional insured on the concrete subcontractor’s CGL policy. The subcontractor worked on the project from…

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29 Apr 2014 Indiana Courts Wrestle with “Work” v. “No-Work” Distinction in Waiver of Subrogation Cases

When confronted with the argument that a party has waived its claims under an AIA standard waiver of subrogation provision, Indiana has traditionally applied a “Work” vs. ”No-Work” distinction when evaluating whether a project owner has waived its claims. Despite prior case law applying this distinction, on Feb. 14, 2014, the Indiana Court of Appeals, in Bd. of Comm’rs of the Cnty. of Jefferson v. Teton Corp., 3 N.E.3d 556 (Ind. Ct. App. 2014), held that a work vs. no-work distinction should not apply. Because the project owner failed to secure the insurance required under the contract, failed to give notice to the general contractor of the decision not to secure the insurance, and waived its subrogation claims, the court held the owner breached the…

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29 Apr 2014 5 Tips For Reviewing And Buying Cyberinsurance

Law360 published an article, “5 Tips for Reviwing and Buying Cyberinsurance,” that Scott Godes wrote with tips for buying and reviewing cyberinsurance, with special tips for retailers who are considering buying or reviewing cyberinsurance policies.   With the recent rash of cyberattacks, data breaches and other incidents affecting retailers around the country, it is a good time to turn a careful eye to insurance for cyber and privacy risks. After a privacy, cybersecurity, or data breach incident, retailers may face a host of issues as a result of those incidents. The issues may include individual consumer claims, putative class actions, federal and state investigations and regulatory inquiries, and demands from banks, credit card brands, and/or credit card processors.   The introduction to the article reads:  …

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28 Apr 2014 Indiana Supreme Court Opinion Highlights Importance of Knowing Your Coverage Before You Need It

  In Groce v. American Family Mutual Insurance Co., No. 48S02-1307-CT-472 (Apr. 3, 2014), the Indiana Supreme Court has again held that the rule of caveat emptor, or let the buyer beware, applies to the purchase of insurance coverage.  The Court held that where an agent’s failure to obtain the coverage sought by the policyholder is “ascertainable from the policy itself,” the two-year statute of limitations on the policyholder’s claim against the agent for failure to obtain coverage begins to run when the policyholder receives a copy of the policy.   This rule presents three challenges for policyholders:  (1) many policyholders renew the same coverage year after year, such that the initial failure to obtain coverage could have happened years before the loss for which…

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22 Apr 2014 Chris Yetka presents “Back to Basics: Fundamentals of Insurance Law Practice”

  On April 22, 2014, Christopher Yetka from Barnes & Thornburg’s Policyholder Insurance Recovery Group, along with a number of other national practitioners, presented a live American Bar Association webinar entitled “Back to Basics: Fundamentals of Insurance Law Practice.”   The seminar included discussion of who the primary actors are in an insurance dispute and the claims process, including issues relating to claims, notice, reservation of rights letters and the duties of defense counsel. The presenters covered tips and strategies relating to conflicts of interest in the context of the tripartite relationship. Also discussed were the various types of insurance coverage, along with the difference between the duty to defend and the duty to reimburse. Experienced practitioners walked through how to interpret insurance policies in the context of…

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