Affirmed: Insureds Bear the Burden of Allocating Covered Versus Uncovered Losses

September 28, 2017
C. Lily Schurra & K. Alexandra Byrd – Saxe Doernberger & Vita, P.C.

The Second Circuit recently affirmed a district court decision that an insured bears the burden of establishing what portion of a jury verdict constitutes covered damages1.

The case arose out of claims for property damage resulting from construction defects in a homebuilding project. The homeowners fired the construction manager, J. Barrows, Inc. (“JBI”), who then sued the homeowners in state court for unpaid fees (the “Underlying Action”). The homeowners counterclaimed, alleging breach of contract and negligence. JBI’s commercial general liability insurer, Harleysville Worcester Insurance Company (“Harleysville”), agreed to defend JBI under a reservation of rights.

Reprinted courtesy of C. Lily Schurra, Saxe Doernberger & Vita, P.C. and K. Alexandra Byrd, Saxe Doernberger & Vita, P.C.
Ms. Schurra may be contacted at
Ms. Byrd may be contacted at


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