Is My Drywall Chinese? - HB Litigation Conferences

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HB Litigation Conferences Chinese Drywall Litigation Chinese Drywall-Insurance Coverage Nightmare June 18, 2009 New Orleans Lorelie S. Masters Jenner & Block LLP 202-639-6076 Lmasters@jenner.com Potentially Applicable Coverages First-party First party property insurance: – Homeowners’ Homeowners and Condominium Owners’ Owners insurance claims. – Property damage to drywall, HVAC coils, copper wiring, appliances, and personal property. Third-party Third party liability insurance: – Claims for bodily injury and property damage by homeowners. – Disputes between builders and subcontractors. – Defense against class actions and individual lawsuits. 2
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HB Litigation Conferences Presents
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FACULTY Jeremy Alters is the foundi
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works include FasTrain: Florida Civ
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a Superfund case that resulted in a
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clerk in the United States District
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The “Writing On The Wall”: Impo
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STATES WHERE IMPORTED DRYWALL HAS B
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Florida Reports of Drywall “Cases
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STATE RESPOND ● Florida ● Louis
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Glenn Cambre, Esq. Director Directo
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PHONE SURVEY INFORMATION: Identifie
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LOUISIANA DRYWALL IMPACT MAPS 6/17/
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FLORIDA VS LOUISIANA DRYWALL • Fl
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Remediation Standard? ● Presently
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Chairman Pryor, Ranking Member Wick
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the German manufacturer, Knauf, onl
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companies, the homeowners, and the
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Chinese drywall spins off 'silent h
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The EPA said these results are not
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Get out of house with Chinese drywa
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The Consumer Product Safety Commiss
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“We’re trying to get the federa
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claims, but it's still a significan
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Imported Drywall and Health - A Gui
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Who is at risk? • insomnia • he
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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The Walls Are Closing In: Chinese D
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An Introduction to Our Firm Duane M
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• Utilizing the Construction Grou
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Occupational Safety and Health Act
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The Walls Are Closing In: Chinese D
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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Sheila Raftery Wiggins, Partner Dua
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Real Estate Litigation • Represen
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Selected Publications • "The Wall
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TRIGGER OF COVERAGE cont. 2. “Rel
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TRIGGER OF COVERAGE cont. 6. Triple
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OTHER CONSIDERATIONS • Deductible
Page 166 and 167: *Overused and Overwrought Metaphor?
Page 168 and 169: Reduced Sulfur Compounds are Diffic
Page 170 and 171: Analysis Methods— Electrochemical
Page 172 and 173: Conc. (ppmv) 1.0 0.9 0.8 0.7 0.6 0.
Page 174 and 175: Key Reactions* • H2S + H2O + M =
Page 176 and 177: Chemistry of Emissions from Drywall
Page 178 and 179: What is Damaged? Problems we’re s
Page 180 and 181: Copper Wires Blacken Paul G. Philli
Page 182 and 183: Pitted Bath Tub Stoppers Paul G. Ph
Page 184 and 185: What MAY BE Damaged Problems we’r
Page 186 and 187: What’s Reportedly Damaged Other p
Page 188 and 189: Black Copper Sulfide TYPICAL BLACKE
Page 190 and 191: Reaction Progresses Paul G. Phillip
Page 192 and 193: COATED COIL IS ALL BLACK Open Quest
Page 194 and 195: PUSH-IN WIRING CONNECTION Open Ques
Page 196 and 197: Open Questions • How and where ar
Page 198 and 199: Outline Chinese Drywall A Practical
Page 200 and 201: Is My Drywall Chinese? b) Visual Ap
Page 202 and 203: Is My Drywall Chinese? Is My Drywal
Page 204 and 205: Is My Drywall Chinese? • To Test
Page 206 and 207: Costs Risk Management 101 • Lesso
Page 208: Can This Get Any Worse? • Emergin
Page 213 and 214: Absolute Pollution Exclusion (1984
Page 215 and 216: Total Pollution Exclusion (cont’d
Page 217 and 218: Other Exclusions “Business Busine
Page 219 and 220: Absolutely Not Total: Rejecting Ins
Page 221 and 222: Other courts have found that policy
Page 223 and 224: exclusion ambiguous, no industry re
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Page 227 and 228: sought to ensure that its chosen la
Page 229 and 230: insured would intend for a pollutio
Page 231 and 232: approval of the APE on assurances t
Page 233 and 234: In reaching its decision, the Calif
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Page 237 and 238: Similarly, the court in Koloms 54 h
Page 239 and 240: unwanted. The flooring material (st
Page 241 and 242: coverage,” the front and inside o
Page 243 and 244: easons, policyholders should not ac
Page 245 and 246: State Limiting Exclusion to “Indu
Page 251 and 252: CHINESE DRYWALL LITIGATION CONFEREN
Page 253 and 254: OCCURRENCE Minority view: Liabili
Page 255 and 256: OCCURRENCE Cost of replacing Chine
Page 257 and 258: CHOICE OF LAW “Place of Contract
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CHOICE OF LAW Under either the “
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__________________ Stephen Mysliwie
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Introduction Contractors, including
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So.2d 400, 405-406 (La. App. 2005).
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III. Number of Occurrences Many CGL
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if such property can be restored to
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(b) At or from any premises, site o
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fumes, lead paint, sealants and coa
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inadequate ventilation, the court w
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C. Effect of the Products-Completed
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Other states follow the “signific
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that claims based on Chinese drywal
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Conclusion The availability of cove
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TRIGGER OF COVERAGE cont. 2. “Rel
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TRIGGER OF COVERAGE cont. 6. Triple
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OTHER CONSIDERATIONS • Deductible
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NELSON • LEVINE • de LUCA & HOR
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Additional Insured Issues • Two T
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Additional Insured Issues • 2004
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NELSON • LEVINE • de LUCA & HOR
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Subrogation Opportunities • Worke
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Subrogation Opportunities • Prope
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Subrogation Opportunities NELSON
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Who Is Involved In The Lawsuits? M
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Shippers Rothchilt International,
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• Beazer Homes Corp. • Boynton
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Negligence • Elements - Duty - Br
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Private Nuisance • Elements - Wro
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Personal Injury Damages • Pain an
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Equitable Subrogation Designed to
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DEFENSES Florida - Economic Waste D
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Louisiana DEFENSES Louisiana - New
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Who Are The Experts? • Science Ex
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Current Issues Service of Process
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Current Issues • Bankruptcies - W
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Indemnity Claims (cont.) Enforceab
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Issues in California Since 2002, C
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Potential Liability • Homebuilder
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Notice Programs • Probably Insuff
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Chinese Drywall - Financial and Val
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How does Chinese drywall impact hom
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Home H Value Over 10 Yeaars Home H
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Home H Value Over 10 Yeaars How doe
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Use of Mass Appraisal Models Consis
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Use of Mass Appraisal Models Event
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Dr. John Kilpatrick is an economist
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Builder Reactions Some builders who
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probably not generate stigma. Howev
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allocating between remediation and
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others are flooding the media. Some
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BACKGROUND • At least 60,000 home
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7 8
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REMEDIATION COSTS AND HEALTH RELATE
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STATUS OF THE MDL AND OTHER CLASS A
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MDL Issues • General Causation -
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Unlike a class action, MDL is a pro
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strategy Merck obtained several fav
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sulfide indefinitely. Some of the r
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RULE 1.1: DEFINITIONS - 2 - RULES O
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Rule. - 4 - (e) The Clerk of the Pa
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- 6 - instances, the “Panel Servi
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- 8 - (f) Except with the approval
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- 10 - (c) Any party opposing the t
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- 12 - filing of said order unless
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- 14 - II. RULES FOR MULTICIRCUIT P
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- 16 - RULE 25.5: SERVICE OF PANEL
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UNITED STATES JUDICIAL PANEL ON MUL
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Patricia M. Williams PhD, DABT Dipl
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MSDS National Gypsum: SoundBreak S
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Gaseous emissions Samples of corro
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Radionuclides concentrated in coal
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Coal Fly Ash Byproduct of the comb
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Frequent Self-reported Self reporte
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Neurological Symptoms Frequent or
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Contaminants in gaseous emissions C
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Long Term CS 2 Exposure Diffuse en
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Sulfur Dioxide Short term exposure
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Hydrogen Sulfide Hydrogen Sulfide
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High concentrations of H 2S Respir
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Other symptoms Skin irritation La
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Gases and Particles Capable of pro
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pulmonary alveoli Pulmonary alveoli
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Symptoms from exposure to elevated
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Deposit in bone Lead Radium Stro
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Alpha particles—concentrated part
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