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SAN DIEGO PAYS OUT SETTLEMENTS TOTALING NEARLY $1.7 MILLION

HOSPITAL ARGUES THAT THE CORONAVIRUS CAUSES PROPERTY DAMAGE

MR. KHATAWUT / Shutterstock

A Connecticut children’s medical center had their lawsuit dismissed by a federal judge. The institution sought coverage for property damage associated with COVID-19 against their insurer. The suit was filed on March 5th, 2021, by The Connecticut Children’s Medical Center and a subsidiary. Continental Casualty Co., and its parent company, CNA Financial Corp., were the property insurers and the defendants in the case.

The defendant's motion to dismiss was granted by U.S. District Judge Jeffrey A. Meyer stating the plaintiffs “do not explain how it is plausible to conclude that this amounts to ‘damage’ to the property.” The plaintiff's policy does not exclude or limit coverage for losses caused by viruses, pandemics, or communicable diseases. Also, the policy stated that “reasonable and necessary extra expenses … in order to continue as nearly practicable the normal operation of the insured business” will be covered. Seeking declaratory judgment, the plaintiffs felt that the defendants should provide coverage for business interruption loss, extra expenses, disease contamination expenses, compensatory damages, interest, attorney fees, and punitive damages.

The defendants requested dismissal, claiming the policy does not cover the losses claimed. Connecticut law interprets the terms of an insurance policy “in accordance with its natural and ordinary meaning” If the terms of the policy are clear and unambiguous. If the terms are ambiguous, the policy must be construed in favor of the insured.”

TRIAL SEEKING DAMAGES FROM DURANGO RAILROAD FOR 416 FIRE PUSHED BACK

TOBIAS HANDKE / www.BossHunting.com

A 6th Judicial District court judge has rescheduled the trial where a local lawsuit is seeking damages against Durango & Silverton Narrow Gauge Railroad for their contribution to the 416 fire. The Judge delayed the trial until August 29th for homeowners, businesses, and D&SNG. The government is seeking $25 million in damages for firefighting and rehabilitation costs cause by the fire that mainly burned in the San Juan National Forest.

In July 2019, the Forest Service concluded that a cinder from the smokestack of one of D&SNG’s coal-burning locomotives ignited the roughly 54,000-acre fire north of Durango. The Civil lawsuit that was filed in 2018 accused the railroad of negligence that lead to the damage of the properties. When the trial begins in August, a jury will have to decide if D&SNG, American Heritage Railways Inc., and Harper should pay for those affected by the 416 Fire.

EMINENT DOMAIN ISSUES AFFECTING NEW JERSEY CONDOMINIUMS – CAN THE GOVERNMENT TAKE PART OF OUR COMMON ELEMENTS?

TheRealDeal.com

Eminent domain occurs when the government exercises its right to take private property for public use. When this action is performed, the government must pay the property owner just compensation for the property acquired. This responsibility is stated in the fifth amendment of the United States Constitution. The government may take all of an individual's property or a portion of the individual's property.

For condominiums, when there is a potential eminent domain action, the Board of the Condominium Association may review the governing Master Deed, By-Laws, and New Jersey Condominium Act to determine who must get notice of the potential eminent domain action and what rights the various parties may have. Generally, only the Condominium Association will be named as a defendant in a condemnation lawsuit representing the tenants of the property and is the party who is charged with handling the litigation. 

After confirming who gets notice and who oversees negotiations and litigation, the Board may address the merits of the case, which generally focuses on the issue of just compensation to be paid by the government to the Association.

Once the case is settled or reduced to a trial verdict, the responsibility to allocate the award of just compensation is vested in the Board. N.J.S.A. § 46:8B-25. Condemnation actions are expected to increase. Large infrastructure spending bills have been working their way through the federal and state governments for years and will increase condemnation cases since the government and utility companies often need to accumulate private property for their projects.

8TH CIRCUIT: INSURER OWES FOR TOTAL LOSS DESPITE PAYMENT FOR PREVIOUS DAMAGE CLAIM

www.claimsjournal.com

In March of 2019, a fire damaged a home outside of Adams in rural southern Minnesota. Before the owner’s started repairs on their home, a second fire burned the home to the ground just two months after the first fire had occurred.

Farm Bureau Property & Casualty Insurance Co. paid $159,808.52 for the damages caused by the first fire. The owner’s filed a second claim for a total loss but, the carrier refused to issue another check for the $268,800 policy limit. The insurer has argued that the owner’s were only entitled to the difference between their first claim and the total loss amount, equaling $108,991.42.

On January 21st, a panel of the 8th Circuit Court of Appeals ruled that the owner’s were entitled to $268,800 even though they had not yet spent the money their insurer paid them after the first incident. The judge said in the ruling that no court construing Minnesota law had been asked to decide whether an insurer can limit payments for successive losses occurring during the same policy period. It was also noted that the Farm Bureau policy states that coverage applies to each “accident, loss, and occurrence” and does not limit coverage for successive occurrences.

SMALL EXPLOSION CLOSES COURT BUILDING

www.ktbs.com

On January 26th, Louisiana’s Caddo Parish Courthouse' was scheduled to reopen after being closed for repairs to the building's main power distribution system. The power grid was damaged during maintenance on January 23rd. A small explosion occurred in the building parking garage. The assistant to the fire chief, stated that a crew of contractors was working inside of the building on a drop ceiling, drilling into electrical wires within the walls.

One of the contractors was injured by a flash burn during the incident. The contractor was taken to a nearby hospital in critical condition with serious injuries. Other contractors were able to describe what happened to law enforcement upon arrival. Court events, not including Jury trials, resumed on January 27th.

WHY DID THE COURT AWARD “DAMAGES” TO THE PARTIES OF 14 RIVERSIDE DRIVE, NAIROBI, KENYA

Juma / Sokodirectory.com

The Dusit Complex located at 14 Riverside Drive in Nairobi, Kenya, has been put up for auction. However, there has been controversy regarding possible miscalculations and injustice that would affect the owners of the property and any future investors. Questions about how the 570 million shillings liability grew to 5.5 billion shillings within ten years raised concerns about the calculations being used to arrive at these numbers.  

The Dusit Complex started construction in 2010. A company called Synergy contacted the Dusit Complex and offered to purchase a block of the property. Formal sale agreements were drawn, signed, and paid. Once this process had been complete, Synergy withdrew from the agreement and demanded a full refund of the money they had invested along with interest. Synergy would also contact the Directorate of Criminal Investigation (DCI) to accuse the Dusit Complex of “obtaining money under false pretense."

The Dusit Complex was willing to pay synergy a refund but Synergy was asking for an amount that was contrary to the agreements that had been signed. In 2015, an Arbitrator, awarded the sum of 1.67 billion shillings to Synergy under conditions that do not apply to the Arbitration Act. The sum is now 5.5 billion shillings compounded at 18 percent. The Arbitrator later awarded the damages in interest, opportunity cost, and foreign exchange.

The Arbitrator seemed to not include rules of interest computation that legally, have to be limited to 6 years and capped at the principal amount. These rulings were set aside by the High Court and thereafter dismissed by the Court of Appeal. Then Synergy went to the Supreme Court who directed the matter back to the Court of Appeal who reinstated the arbitration award with a different bench.

VANCOUVER ISLAND COMMUNITY WITHOUT WATER AFTER BARGE DAMAGES UNDERWATER LINE

DOUGLAS LUDWIG /COURTESY TOURISM UCLUELET

FLORIDA SUPREME COURT RULING COULD CHILL PUNITIVE DAMAGES CLAIMS

Felix Mizioznikov / Tobaccoreporter.com

Punitive damages may be less common in Florida after a recent opinion handed down by the States Supreme Court. The decision was made on January 6th, 2022, approving an appellate procedure rule change that will allow for interlocutory appeals whether lawsuits can include punitive damage demands. This process will take months to go completely into effect and may delay litigation. Ultimately this ruling may discourage plaintiffs from seeking punitive charges.

This ruling was labeled as a “game-changer” because it can help prevent rifts that often arise between insureds and insurers when hefty punitive damage awards are at stake. In some cases, insurance companies can be held liable for punitive damages if a court finds they behaved in a particularly egregious manner

FIFTH CIRCUIT -- DAMAGE TO PROPERTY BEYOND INSURED’S PRODUCT/WORK NOT PRECLUDED BY ‘YOUR PRODUCT/YOUR WORK EXCLUSION’

Jim Sams / www.claimsjournal.com

January 11th, 2022, a decision was issued by the United States Court of Appeals for the Fifth Circuit on behalf of Siplast, Incorporated v. Employers Mutual Casualty Company, 2022 U.S. App. LEXIS 795 (5th Cir. Jan. 11, 2022) found the insurer had the responsibility to defend what they had ensured in a construction defect case. The underlying complaint was that there was alleged damage to the property beyond what the insurance covered.

Siplast Incorporated signed a contract with the Archdiocese of New York (the Archdiocese) for the installation of a roof membrane system at a high school in the Bronx. Siplast guaranteed the roof membrane system would remain in a watertight condition for 20 years or the membrane system would be replaced at the expense of the company. Several years after the membrane system installation, water damage was noticed. Archdiocese contacted Siplast about the damage, Siplast made repairs to the damage; however, more damage and leaks continued to occur. Siplast refuses to make any more repairs on the membrane system. 

Siplast filed a declaratory judgment action seeking coverage under the policies. Id. at 6. The District Court ruled against Siplast claiming the damage fell within the policies’ “Your Product/Your Work Exclusion.” Id. at *6-7. The Fifth Circuit specifically disagreed with the District Court’s finding that – while the underlying complaint mentioned damage to property other than Siplast’s roofing products – coverage was not owed as the Archdiocese did not actually make a claim to recover for any such damage. The reason is that complaints made by the Archdiocese often pointed to damages beyond the roof membrane such as roof leaks and water damage to ceiling tiles. 

MINERAL RESERVATIONS AND REAL PROPERTY IN FLORIDA

landishome.com

Mineral reservations in the chain of title to real properties are not uncommon to find in Florida. When the State of Florida first conveyed title to state-owned lands, mineral reservations were customary. These rights did not raise an issue for individuals using the land for farming. But for individuals undergoing construction on their land, these rights raised issues.

For marketability purposes, an application is submitted to release the right of entry. As the state became more populated, the release of the right to entry delayed some economic developments. The state then adopted a statute identified in F.S. 270.11(3), stating that “The right of entry to any interest in phosphate, minerals, and metals or any interest in petroleum reserved in favor of the Board of Trustees of the Internal Improvement Trust Fund, the State Board of Education, a local government, a water management district, or other agency of the state is released for any parcel of property that is, or ever has been, a contiguous tract of fewer than 20 acres in the aggregate under the same ownership.”

Properties are also subject to mineral reservations held by private parties. These claims will include a right of entry unless the right has been expressly disclaimed. This law remains in the local Florida Districts; however, this law has not yet been approved by the Florida Supreme Court level. If the right of entry has been removed, title insurers could state that in insurance policies, showing no reservations of existing minerals. 

NATURAL DISASTERS CAUSED $145 BILLION IN DAMAGES ACROSS US IN 2021

www.hillcountrynews.com / NewsBreak.com

In 2021, natural disasters killed 688 people across the United States and caused more than $145 billion of property damage. 2021 was the third highest year America has seen for natural disaster damage since 1980. There were 20 disasters that totaled over $1 billion each. They included last month’s tornado outbreak in Central U.S, wildfires and heatwaves in the West, and four hurricane and tropical storm strikes on the Gulf of Mexico. Last year was the country's fourth warmest year with 21 named storms in the Atlantic, its third most active season. Disaster costs over the past five years have exceeded $742 billion reflecting the increasing exposure of weather and climate conditions.

PROVINCE ORDERED TO PAY DAMAGES TO SECHELT RETIREES FOR NOT FIXING SINKHOLE

Randy Shore / Vancouver Sun

The British Colombia government was ordered to pay several Sechelt, British Columbia, Canada retirees a total of more than $200,000 in damages after they had been forced to evacuate their homes when a sinkhole appeared beside the road in 2018. Although the area was prone to geological instabilities associated with underground stream activity, an engineering firm had determined that this area would be suitable for construction. In 2012, residents were surprised by the sudden sinkholes appearing in the middle of roads.

On the recommendation of another engineering firm, the residents of Seawatch Lane, British Colombia, were placed on evacuation alert on Christmas Day, 2018, and then ordered to leave their homes after another large sinkhole was spotted next to the highway. A temporary fence was put up around the neighborhood to keep people out. Families have been placed in modest accommodation rentals while no progress had been made at the site to address the geological issues. 

The evacuation order was accompanied by a declaration of a state of local emergency issued by the district and has been renewed by the provincial minister of public safety every seven days since. The state of emergency lasted for 3 months before being declared unlawful. The families that had to evacuate and live in rental accommodations are entitled to their expenses along with damages for pain and suffering.

BUILDER POSSIBLY LIABLE TO PAY DAMAGES FOR OCCUPATION CERTIFICATE DELAY

The Times of India

Residents in New Deli, India, were forced to take possession of their apartment flats even though the building did not get proper clearance from authorities. The Supreme Court has ruled that it would amount to deficiency in services on the part of the real estate company if it failed to get an occupation certificate.

 

A bench of Justices D Y Chandrachud and A S Bopanna said that the builders would be liable to refund the money if the homebuyer is forced to pay higher water or tax charges for lack of occupancy certificate.

BOULDER COUNTY OFFICIALS ESTIMATE MARSHALL FIRE CAUSED OVER $500 MILLION IN RESIDENTIAL PROPERTY DAMAGE

VERMONT FLOOD COSTS COULD EXCEED $5.2 BILLION

NBC5 News

The University of Vermont has concluded that property damage from flooding will exceed $5.2 billion in the next 100 years. Flood damage projections are expected in the Winooski River floodplains. Many of the state’s most populous towns are in the floodplains, including Burlington, Essex, Colchester, Williston, and Montpelier.

The University of Vermont is also developing a comprehensive map of flood risks across Vermont’s Lake Champlain Basin. The comprehensive map intends to reveal greater flood damage in more detail than any other existing model. Researchers were able to evaluate eight different levels of flood probability ranging from smaller floods that occur every 1-2 years to larger 50-, 100- and 500-year floods.

SURVIVORS OF BRONX FIRE SUE CITY AND LANDLORD FOR $1 BILLION IN DAMAGES

SCOTT HEINS / GETTY

On January 9th, 2022, a fire at 333 East 181 Street, Bronx, New York, was ignited by an electrical space heater. The fire was contained to a single room on the second floor of the high-rise apartment, but smoke filled the 19-story building causing 17 people to lose their lives and injured another 40 people. A pair of class-action lawsuits were filed on January 11th by two of the survivors, Rosa Reyes and Felix Martinez. The couple filed claims of permanent personal injuries and property damage.

CALIFORNIA EXPANDS NON-ECONOMIC DAMAGES IN SURVIVAL ACTIONS

Jonah Hall & Ryan White / Husch Blackwell

As of January 1st, 2022, plaintiffs in survival actions in California will be eligible to obtain damages for predeath pain, suffering, or disfigurement. This dramatic change in law will impact the value of litigation cases as well as the cost of defending these matters. Prior to this, if an injured party died before their legal cases were resolved, the recovery in that lawsuit could not include predeath pain, suffering, or disfigurement. The only recovery permitted was economic monetary losses and possibly punitive damages under other statutes.

On October 1st, 2021, California Governor Gavin Newsom modified the existing law so plaintiffs in survival actions can be awarded damages for predeath pain, suffering, or disfigurement. This law is not retroactive, only plaintiffs that filed on or after January 1st, 2022 will be eligible for the recovery damages for pain, suffering, or disfigurement in survival actions. This law is set to expire on January 1st, 2026. At that time, California Legislature can release the bill.

Negligence actions and medical malpractice actions will likely be impacted, though the Medical Insurance Compensation Reform Act cap still applies to non-economic damages for pain and suffering. This law does not impact the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), as EADACPA already permits predeath pain and suffering damages up to $250,000.

BENNINGTON CLASS ACTION SETTLEMENT

Lucas Willard / WAMC

Individuals that have lived or owned real estate property near Bennington / North Bennington, Vermont, may benefit from a class action settlement. Sullivan v. Saint-Gobain Performance Plastics Corp., a class-action lawsuit filed by residents in the Bennington area alleging contamination of their property and drinking water with a chemical called Perfluorooctanoic Acid (“PFOA”) has settled. 

The settlement will provide money for property damages to individuals (Property Class) that owned residential real estate property in the Zone of Concern and funding for a Court-Supervised Medical Monitoring Program for Exposure Class members. Individuals may be a member of both classes. A more detailed Class Settlement Notice, the Settlement Agreement, a Claim Form, and an Opt-Out form can be found at www.BenningtonVTClassAction.com or requested by emailing info@benningtonvtclassaction.com, or by calling 866-726-3778.

If you are a property owner within the zone of concern, you must file a claim form to receive money for property damages. Unless you have been asked to be excluded from the property class no later than February 2, 2022, you will be bound by the settlement and release of claims. Exposure class members must file a Claim Form to participate in the Medical Monitoring Program, there will be no opportunity to be excluded.  

Exposure Class members will have an opportunity to object to the settlement no later than February 2, 2022. Doing nothing will result in getting a payment or other benefits from this settlement along with giving up certain legal rights. 

ONTARIO COURT AWARDS OVER $107M TO FAMILIES FROM FLIGHT 752 SHOOTDOWN

Jim Sciutto, Pamela Brown, Barbara Starr, Zachary Cohen and Paul P. Murphy / CNN

A court in Ontario, Canada, awarded more than $107 million to the families of six victims in the Iranian military’s downing of flight 752 on January 8th, 2020. The decision was made public on December 27th, 2021, following a May ruling that the missile strike was an international act of terrorism. This alowed for relatives of those who were killed to seek compensation from Iran. Ontario Superior Court Justice Edward Belobaba found the missiles that shot down Ukraine International Airlines Flight 752 to be deliberately fired at a time of no armed conflict in the area, resulting in Iran’s invalidation of immunity against civil litigation.  

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