Construction Owners & Builders Law Blog

Professor Herbert Kritzer's article on "The Commodification of Insurance Defense Practice" in construction defect and other cases is a must read for attorneys representing both claimants and insured.

Updated: A Mississippi federal district court has held State Farm's insurance policy form ambiguous and that State Farm must pay for wind and water damage even if tidal surge caused later caused further destruction, reports the SunHerald.

The Court will decide whether its earlier decision in State Farm v Campbell (i) mandates a reasonable ratio between compensatory and punitive damages when the defendants conduct was outrageous and (ii) prohibits the jury from considering the harm done to persons other than the plaintiff in making its award.

Marc Mayerson over at the Insurance Scrawl does his usual masterful job discussing recent case law on when late notice results in forfeiture of insurance coverage.

Punitive damages sometimes are awarded in construction claim cases and often awarded in insurance bad faith cases so I note with interest that yesterday the Oregon Court of Appeals overturned a $100 million punitive damages award in a tobacco case.

Mississippi Gulf Coast homeowners have accused State Farm Insurance in a new lawsuit of pressuring adjusters and engineers to rely on an engineering report alleging Katrina's storm surge arrived before its windd did any damage reports MSNBC.

On the eve of hurricane season home insurers are cancelling policies or refusing to write new ones in many coastal communities reports the Clarion Ledger.

Evidence relevant only to the question of bad faith may only be heard by the jury in the second phase of a bifurcated trial, a panel of the Mississippi Supreme Court held last week. Link

The SunHerald reports on an engineer's charge that his findings were altered, his name forged and whole exhibits removed from reports he prepared for use by an insurer in deciding whether hurricane damage was caused by wind or storm surge.

In four paragraphs a federal trial judge disposed of 19 motions in an insurance bad faith case.

Marc Mayerson at the Insurance Scrawl discusses the "renewal rule."

David Nelson at the Louisiana Law Blog suggests everyone prepare for the next storm by reviewing their property insurance coverage.

MSNBC outlines the emerging litigation, which includes (i) Attorney General Hood Jim Hood's ominibus case, (ii) Richard "Dickie' Scrugg's suits for Senator Lott, Representative Taylor and a host of others, (iii) Richard Phillips' class action and (iv) others attorneys suits on behalf of individual owners.

MSNBC reports today Zurich Financial Services and St. Paul Travelers Cos. are in merger talks.

I took a break from blogging to prepare for trial in a bad faith insurance case. The case settled last week on terms that made my client happy, so I'm back and will try to make up in coming weeks for not posting so long.

An insurer refuses to defend or otherwise denies coverage to a defendant. The defendant believes it has no liability, but the plaintiff seeks bet-the-house or bet-the-company damages. If the insured settles may the defendant or its assignees recover indemnity from the insurer even though it denied liability?

Marc Mayerson does an excellent job covering the issues and recent court decisions governing defense costs under excess insurance policy forms over at the Insurance Scrawl .

On Christmas day, The Times Picayune in New Orleans reported on lawsuits being filed against the U.S. Army Corps of Engineers and others for damages caused by Hurricane Katrina.

May It Please the Court tells an eye opening story about a case in which "an insurance company issued a policy to a company in India, doing business in India, to cover work done in India for an American company" but "the policy excluded coverage for work done in India."

Not if the defective product is EIFS cladding sold in South Carolina.

Over at the RiskProf Blog they discuss how builders are selling homes built like fortresses to withstand high winds.

Damages may arise many years after the act or omission that caused them. The ContractsProf Blog describes the emergence of "insurance archaeologists" who specialize in finding lost policies.

This headline from USA Today triggered a slow burn within me: "FEMA halts flood insurance payments."

Marc Mayer over at Insurance Scrawl discusses focus group research suggesting the lowering of expectations of jurors as to appropriate insurance company conduct.

The InhouseBlog points to this article practical advice on procuring construction liability insurance.

The Insurance Scrawl in an updated post reports that FEMA has promulgated rules relaxing the 60 day deadline for filing sworn proofs of claim and new underwriting guideline allowing payment of flood insurance claims based on the adjuster's findings alone and giving insureds 12 months from date of loss to file a sworn proof of loss if they disagree with the adjuster's findings.

Katrina flood victims face loss of their coverage if they do not submit a sworn proof of claim on their flood insurance policy within 60 days from the date of damage reports the Insurance Scrawl, even if an adjuster has not inspected the property.

Here's a how to article describing the potential consequences to all parties' of failing to require proof of coverage and waiver of subrogation rights on a construction project.

James River Insurance Company which opened its doors only two years ago received a vote of confidence from Wall Street as its share price climbed 11% on its first day as a public company reports The News & Observer.

The Tennessee Business Litigation Law blog points to an article by a defense attorney about how the lower courts are applying the Supreme Court's decision in State Farm v. Campbell on the constitutional limits of punitive damages awards.

An insurer may recover the cost it incurs defending a case if the insurer reserves its right to do so and it's later adjudicated the isnurer had no duty to defend, the California the Supreme Court held Monday in Scottsdale Insurance v. MV Transportation. Download file

A Texas Supreme Court decision permitting an insurer that defended under a reservation of rights to recover sums the insurer paid to settle an uncovered multi million dollar claim is summarized by the Insurance Crawl.

The Insurance Scrawl discusses New York courts' contrarian approach to the enforcement of insurance policy claim notice provisions.

The courts are split over whether a insurer defending under a reservation of rights may recoup defense costs from its insured if it turns out none of the claims being defended are covered by the policy reports the Insurance Scrawl.

So holds the United States Court of Appeals from the Eighth Circuit in a decision summarized at the Tennessee Business Litigation Law Blog.

A Georgia appellate court's recent decision creates uncertainty--at least in Georgia--over the scope of "insured contract" coverage provided by commercial general liability policies ("CGL'). Ordinarily insurance policies do not protect against breach of contract claims. But when provided by the policy "insured contract" coverage protects the insured when the insured contractually assumes tort liability for bodily injury or property damage to a third party.

A Texas appellate court held an unintentional construction defect is an accident and, therefore, an occurrence under a contractor's commercial general liability policy. Courts across the nation are badly split over this issue.

Colorado's Governor has vetoed a bill that would have prohibited one person from requiring another person or another persons insurer or surety from indemnifying that person from its own negligence for personal injury or property damage.