Is My Drywall Chinese? - HB Litigation Conferences

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Which Contractors Will Be Covered by Their CGL Insurance Policies for Liability Arising Out of Chinese Drywall? Table of Contents Page Introduction......................................................................................................................................1 I. “Property Damage” Caused by an “Occurrence” ..............................................................1 II. “Bodily Injury” Caused by an “Occurrence”.....................................................................4 III. Number of Occurrences .....................................................................................................5 IV. The “Impaired Property” Exclusion...................................................................................6 V. The “Absolute Pollution Exclusion”..................................................................................8 A. Traditional or Literal Interpretation.......................................................................10 B. The Other Requirements for Application of the December 2004 Absolute Pollution Exclusion Might Not Be Met by Particular Insured Contractors................................................................................................13 C. Effect of the Products-Completed Operations Hazard...........................................15 VI. Choice of Law..................................................................................................................16 VII. Practical Advice for Contractors......................................................................................18 Conclusion .....................................................................................................................................21 - i -
Introduction Contractors, including general contractors, subcontractors, and remodelers, who are sued by homeowners for damages caused by defective Chinese drywall will seek a defense and indemnity for such suits under their commercial general liability (“CGL”) insurance policies. 1 Insurers are expected to deny coverage under such policies on a number of grounds, including the so-called absolute pollution exclusion. It will likely take years for the courts to sort through the coverage issues that will be generated by claims for coverage arising out of defective Chinese drywall. As discussed below, it is likely that some contractors, under the law of some states, will obtain coverage -- while other contractors will not. The main determinants of coverage will be: (i) the state in which the suit for insurance coverage is filed, (ii) which state’s law is held to be applicable to the insurance coverage dispute, and (iii) which iteration of the absolute pollution exclusion is included in the insurance policy at issue. The following is an overview of the factors that will determine whether contractors are covered by their CGL policies for liability arising out of Chinese drywall. I. “Property Damage” Caused by an “Occurrence” To obtain coverage for any construction defect claim, a contractor must demonstrate that the allegedly defective construction has caused “property damage” caused by an “occurrence,” as those terms are used in the CGL policy’s insuring agreement. “Property damage” is defined to mean physical injury to tangible property or loss of use of property 1 This paper uses the term "Chinese drywall" since that is the term that is most commonly used in the media and by relevant parties. We note, however, that this issue may turn out not to be a Chinese drywall problem but rather one that is shared by drywall manufactured in the United States. This aspect of the problem will only be clarified once the scientific cause of the problem is determined. - 1 -
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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
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*Overused and Overwrought Metaphor?
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Reduced Sulfur Compounds are Diffic
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Analysis Methods— Electrochemical
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Conc. (ppmv) 1.0 0.9 0.8 0.7 0.6 0.
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Key Reactions* • H2S + H2O + M =
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Chemistry of Emissions from Drywall
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What is Damaged? Problems we’re s
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Copper Wires Blacken Paul G. Philli
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Pitted Bath Tub Stoppers Paul G. Ph
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What MAY BE Damaged Problems we’r
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What’s Reportedly Damaged Other p
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Black Copper Sulfide TYPICAL BLACKE
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Reaction Progresses Paul G. Phillip
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COATED COIL IS ALL BLACK Open Quest
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PUSH-IN WIRING CONNECTION Open Ques
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Open Questions • How and where ar
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Outline Chinese Drywall A Practical
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Is My Drywall Chinese? b) Visual Ap
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Is My Drywall Chinese? Is My Drywal
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Is My Drywall Chinese? • To Test
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Costs Risk Management 101 • Lesso
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Can This Get Any Worse? • Emergin
Page 212 and 213: The Expected Primary Defense: “Po
Page 214 and 215: Revisions to the “APE APE” Demo
Page 216 and 217: Cases Interpreting the Pollution Ex
Page 218 and 219: Other Issues Additional coverage pa
Page 220 and 221: contradicts the plain language and
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Page 224 and 225: With respect to the new, absolute p
Page 226 and 227: Even when courts find that an APE s
Page 228 and 229: Setting aside expectations of cover
Page 230 and 231: The LDI’s Advisory Letter warned
Page 232 and 233: Decisions by the High Courts in Cal
Page 234 and 235: interpretation comports with the AP
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Page 238 and 239: The court in Koloms criticized the
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Page 242 and 243: that reject coverage for non-enviro
Page 244 and 245: Survey of Appellate Court Decisions
Page 246 and 247: State Limiting Exclusion to “Indu
Page 248 and 249: State Limiting Exclusion to “Indu
Page 250 and 251: L:\MASTERLS\Seminar\HB Chinese Dryw
Page 252 and 253: OCCURRENCE “Property Damage”
Page 254 and 255: OCCURRENCE Majority View: Liabili
Page 256 and 257: CHOICE OF LAW Starting point for c
Page 258 and 259: CHOICE OF LAW “Significant Conta
Page 260 and 261: Which Contractors Will Be Covered b
Page 264 and 265: that has not been physically injure
Page 266 and 267: In sum, in most states the damage c
Page 268 and 269: the several Chinese drywall claims
Page 270 and 271: V. The “Absolute Pollution Exclus
Page 272 and 273: to test for, monitor, clean up, rem
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Page 278 and 279: VI. Choice of Law As discussed abov
Page 280 and 281: homes containing Chinese drywall ar
Page 282 and 283: “legally obligated to pay as dama
Page 284 and 285: By: Veronica M. Bates TRIGGER OF CO
Page 286 and 287: TRIGGER OF COVERAGE cont. 4. “Inj
Page 288 and 289: ALLOCATION 1. Pro Rata • Time on
Page 290 and 291: Chinese Drywall Litigation NELSON
Page 292 and 293: NELSON • LEVINE • de LUCA & HOR
Page 294 and 295: Additional Insured Issues • The m
Page 296 and 297: Additional Insured Issues • 2004
Page 298 and 299: Subrogation Opportunities Targets a
Page 300 and 301: Subrogation Opportunities • Contr
Page 302 and 303: Subrogation Opportunities • Hurdl
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Liability Issues Hugh J. Turner Jr.
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Manufacturers • Knauf Gips, KG (e
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Suppliers 84 Lumber Co. All Flori
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Drywall Lawsuit Models • Type 1:
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Express Warranty • Elements - Exp
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Medical Monitoring • Elements: -
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Vicarious Liability A corporation
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What Are The Defenses? Economic Lo
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DEFENSES Florida - Strict Liabilit
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DEFENSES Lack of Privity of Contra
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What Are The Current Issues In The
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Current Issues • Case Assignments
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Current Issues Insurance Coverage
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Issues In Florida • Chapter 558 R
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Chinese Drywall Conference Sander L
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Are Chinese Drywall Issues Similar
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Search for New Defendants • Contr
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How does Chinese drywall impact hom
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How does Chinese drywall impact hom
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Home H Value Over 10 Yeaars How doe
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Home H Value Over 10 Yeaars Home H
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Use of Mass Appraisal Models Event
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Use of Mass Appraisal Models Cross-
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SUITE 650, FOURTH AVENUE SEATTLE, W
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concern at the moment remain 2004
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able, in which case rather than a
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subject properties and the data use
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CHINESE DRYWALL LITIGATION UPDATE A
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5 6
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WHERE WAS THE CHINESE DRYWALL USED
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WHAT KIND OF EXPERTS YOU’LL NEED
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Hydrogen Sulfide Exposure • Belie
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BACKGROUND PROCEDURE MULTIDISTRICT
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that there is a much smaller chance
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applicable standard of liability. D
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RULES OF PROCEDURE OF THE JUDICIAL
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- 3 - transferred under Section 140
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- 5 - (c) Copies of motions for tra
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- 7 - (c) Once a corporate disclosu
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- 9 - designating such a pleading a
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RULE 7.6: TERMINATION AND REMAND In
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- 13 - (b) Each party filing a moti
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- 15 - (C) the circuit court of app
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UNITED STATES JUDICIAL PANEL ON MUL
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Drywall Common building material ty
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Chinese Drywall Analysis ( incomple
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Coal combustion residues Derived f
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Coal Mine Waste Coal may be sold a
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Coal Fly Ash Resident complaints E
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Skin Acne Skin rashes Hives Per
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Sensitive populations Infants Chi
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Carbon Disulfide Gas—evaporates
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Sulfur Dioxide Sulfur Dioxide An E
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SO 2 Symptoms of Chronic Exposure t
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Exposure to lower concentrations of
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GI Symptoms of H 2S Nausea Vomiti
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Particulate Matter Particulate Matt
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Airways of Lungs Lungs
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Clearance from the lungs is not cle
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Particles containing Heavy metals a
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Natural Decay Series: Uranium-238 U
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PAHs Benzo[a]pyrene Group 1 Human c
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Is My Drywall Chinese? - HB Litigation Conferences

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