Vermont and New Hampshire have requested more than $7 million in federal disaster relief from the Biden Administration for major infrastructure damage that resulted from a severe storm and flood event in late July and early August.

With all the questions a builder may have for a developer, architect, designer and property owner, there are some inquiries that should be addressed first to help identify and understand any climate, accidental and unforeseen risks to a project. Understanding the type of protections builders should consider before starting a job can make all the difference in the success of a project and make sure the right insurance protection is in place.

Builders should consider all the exposures before purchasing coverage though. It is important to do an inventory of all the specific project’s exposures at different phases of the project, including those at the construction site, in transit or at a temporary storage site. A builder may choose to get broad protection for property of all kinds at all locations or narrow coverage to a specific property and risks. Regardless of the level chosen, a builder will need to review the policy to mitigate any coverage gaps.

Reprinted courtesy of Erin Rotz, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

The $1.2-trillion infrastructure bill recently approved by the U.S. Senate includes $500 million for a revolving loan fund created earlier this year that would allow cities and other municipalities nationwide to pay for projects that improve resiliency against floods, hurricanes and other natural disasters.

A California federal district court recently denied an insurer’s motion to dismiss a manufacturer’s insurance coverage suit on the grounds that an “unfair competition” exclusion barred coverage for a suit that alleged violations of the Colorado Consumer Protection Act. The court allowed the suit to proceed because the exclusion did not clearly, explicitly, and unambiguously apply to the product liability suit alleged against the manufacturer. The decision in Arovast Corporation v. Great American E&S Insurance Co., No. SACV 21-596-CJC (C.D. Cal. Aug. 2, 2021) highlights the broad range of activities that can be found in “unfair competition,” “antitrust,” and similar exclusions and how they can be cited as grounds to deny coverage in a variety of contexts beyond the anti-competitive claims those labels may suggest to most policyholders.

There’s an ancient proverb that people learn only from their own mistakes. Otto von Bismarck said it better: “Only a fool learns from his own mistakes. The wise man learns from the mistakes of others.” As the construction industry collectively moves past the age of the novel coronavirus into what will hopefully be a new normal, in the aftermath there are lessons to be learned about how insurance programs operate, about unexpected gaps in coverage and about how huge risks that come out of left field can leave companies vulnerable.

Reprinted courtesy of Alan Packer, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

On Tuesday, a New Hampshire trial court awarded summary judgment to the owner of scores of hotels after finding that the hotels sustained covered “physical loss of or damage to” insured property caused by the pandemic presence of COVID-19 and its viral agent, SARS-CoV-2. The merits ruling is yet another recent victory for policyholders who continue to make headway against an early wave of insurance company dismissals, most of which, unlike the ruling on Tuesday, never considered evidence in support of their decisions.

Reprinted courtesy of Jonathan O. Aihie, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth
Mr. Aihie may be contacted at jaihie@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com

The court found that the insured hair salon and barbershop plausibly alleged an entitlement to coverage for lost business income when the government orders restricted use of the property as intended. Seifert v. IMT Ins. Co., 2021 U.S. Dist. LEXIS 103420 (D. Minn. June 2, 2021).

Plaintiff's business was ordered to close by two executive orders issued in response to the growing number of COVID-19 cases in Minnesota. The policy covered the loss of business income due to a "suspension of your 'operations' . . . caused by direct physical loss of or damage to property . . ." Plaintiff sought coverage for his business losses. IMT Insurance Company denied the claim. Plaintiff sued and IMT moved to dismiss. The motion was initially granted without prejudice and plaintiff filed an amended complaint.

Having recently marked the one-year anniversary of the COVID-19 pandemic, it seems like an opportune time to consider how the pandemic has impacted the insurance industry. While business interruption (BI) lawsuits (totaling more than 1,500 as of March 31, 2021) have dominated the headlines, the pandemic’s effects stretch far beyond BI claims. Indeed, the pandemic has impacted virtually all aspects of the industry and those impacts will likely alter the insurance landscape for years to come.

Reprinted courtesy of Gregory S. Capps, White and Williams LLP and Daryn E. Rush, White and Williams LLP

Mr. Capps may be contacted at cappsg@whiteandwilliams.com
Mr. Rush may be contacted at rushd@whiteandwilliams.com

Workplace injuries on construction sites are common occurrences. For large projects that span multiple years with deca-million dollar budgets, even contractors with the best safety practices can expect dozens of injuries and related incidents to be reported in a given year. Many more incidents will go unreported, either because the incident is not deemed significant enough, or for other reasons, including the immigration status of the injured.

Reprinted courtesy of Steven Gonzalez & Aaron Cohn, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Gonzalez may be contacted at sgonzalez@wwhgd.com
Mr. Cohn may be contacted at acohn@wwhgd.com

In another victory for policy holders on business interruption claims arising from COVID-19, the federal district court denied the insurer's motion to dismiss on one of two claims. Kingray Inc. v. Farmers Group Inc., et al., 2021 U.S. Dist. LEXIS 41300 (C. D. Cal. March 4, 2021).

Plaintiff Kingray Inc., who operated a sports bar and grill, and Plaintiff Nora's Style Salon, Inc. filed suit against Farmers when business interruption coverage was denied under plaintiffs' all risk policies. Government shut-down orders at the beginning of the COVID-19 pandemic caused plaintiffs to suffer loss of business income.

After years of going full-throttle, the U.S. construction industry has been contending with various pandemic-induced bumps in the road that will continue to slow business down and challenge how much resiliency can be mustered for the recovery ahead.

It’s a tough environment to deal with. While there was room for caution after eight booming years in construction spending, the pandemic’s massive disruption has altered the economics of working safely, on time and on budget. The aftereffects are carrying into 2021 as the recovery begins.

Reprinted courtesy of Kirk Chamberlain & Craig Tappel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.