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Is Defective Workmanship an 'Occurrence'? The Jurisdictional Split Examined
Part One of a Two-Part Series
Under the terms of a standard Commercial General Liability ('CGL') policy, an insurance company must defend and indemnify its insured for claims of property damage (or bodily injury) resulting from an 'occurrence' subject to certain enumerated policy exclusions. An 'occurrence' is typically defined as 'an accident, including continuous or repeated exposure to substantially the same general harmful conditions.' CGL policies do not define the term 'accident' and, consequently, the term has prompted substantial litigation. See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1075 (Fla. 1998) (stating that 'few insurance policy terms have provoked more controversy in litigation than the word 'accident”). At the heart of the litigation is the parties' disagreement over what constitutes accidental damage.
Claims for property damage arising out of defective workmanship have provoked substantial litigation for decades and are increasing in a seemingly geometric progression. This has sparked a split in authority, with some courts holding that property damage resulting from defective workmanship is not an occurrence and others holding that it is. See generally William D. Lyman, Practising Law Institute, Is Defective Construction Covered Under Contractors' and Subcontractors' Commercial General Liability Insurance Policies? Selected Issues, 525 Real Estate Law and Practice Course Handbook Series 151 (Apr. 2006). Irrespective of the theory used, almost all courts ultimately find that a CGL policy provides coverage where the defective workmanship causes damage to third-party property. A CGL policy insures the risk that 'the goods, products or work of the insured, once relinquished or completed will cause damage to property other than the product or completed work itself, and for which the insured may be found liable.' Roger C. Henderson, Insurance Protection for Products Liability and Completed Operations ' What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 441 (1971). Construction defect coverage litigation focuses on whether damage to an insured's own work is caused by an 'occurrence' as that term is used in a CGL policy.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.