Is My Drywall Chinese? - HB Litigation Conferences

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“legally obligated to pay as damages” requirement is not met unless a judgment in a lawsuit has been entered against the insured. See Certain Underwriters at Lloyd’s of London v. Superior Court, 24 Cal. 4th 945, 961 (2001). The second risk run by a contractor who settles with a homeowner involves the standard requirement in a CGL insurance policy that the contractor obtain the insurer’s consent before voluntarily making any payment to the homeowner or assuming any obligation or incurring any expense. In light of this obligation, contractors who agree with homeowners to remediate problems caused by Chinese drywall should do at least two things. First, they should consult with counsel so that the remediation constitutes a settlement of the homeowner’s claim against the contractor and not just a voluntary undertaking by the contractor. As part of the settlement, the homeowners may be required to release all or part of their claims against the contractor, and to assign to the contractor their rights to pursue recovery against third parties, including the homeowners’ insurer. Second, the contractor should notify its CGL insurer prior to making any repairs and seek the insurer’s consent to the contractor’s action, Although the “consent to settle” requirement has been softened by many states, which require the insurer to demonstrate that the insurer was materially prejudiced by a violation of this requirement before it may deny coverage based on such a violation, ideally the contractor should obtain the insurer’s consent before proceeding with the repairs. If the insurer drags its feet and does not either grant or deny consent, the contractor will have a strong argument that the insurer may not deny coverage on the basis of the failure to obtain consent. The courts have not looked kindly on insurers who have equivocated in response to an insured’s request for such consent. - 20 -
Conclusion The availability of coverage for contractors relating to Chinese drywall will depend on the particular terms of their insurance policies, in particular the wording of the pollution exclusion in those policies, and also on which state’s law is selected to apply to the interpretation of those policies. The coverage issues relating to Chinese drywall are likely to be decided on a case by case basis by the courts over the next few years. Stephen R. Mysliwiec DLA Piper LLP (US) 500 8th Street NW Washington, DC 20004 Phone: (202) 799-4000 Fax: (202) 799-5000 Email: stephen.mysliwiec@dlapiper.com - 21 -
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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
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The Expected Primary Defense: “Po
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Revisions to the “APE APE” Demo
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Cases Interpreting the Pollution Ex
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Other Issues Additional coverage pa
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contradicts the plain language and
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partial off-site exclusion for some
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With respect to the new, absolute p
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Even when courts find that an APE s
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Setting aside expectations of cover
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The LDI’s Advisory Letter warned
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Page 238 and 239: The court in Koloms criticized the
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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 262 and 263: 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
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Page 270 and 271: V. The “Absolute Pollution Exclus
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Page 278 and 279: VI. Choice of Law As discussed abov
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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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