"Occurance" v. "Manifestation" when a GC pursues insurance under JSUB
As Chris Weiss told us last week, a common fact pattern in Florida is
slow, progressive water damage which is latent until there is an outward
manifestation. I mentioned that for CGL insurance purposes under JSUB
where a general contractor claims that a sub's poor work led to the
damage, there is a hotly contested issue as to when insurance coverage
is triggered. This issue may be resolved by the 1st DCA when it reviews
the attached Circuit Court Order. Amerisure has expressed a desire to
make this a test case to resolve this issue under Florida law.
Several Committee members asked me to forward the briefs in this recent
case. While the briefs are long the issue can be summed up as is there
insurance coverage as the damage is occurring (even if not known until
later) or must there be an outward manifestation to trigger coverage?
If this version stands, this will benefit general contractors who had
older policy forms that did not expressly exclude this coverage, as most
of the newer ones do. I hope this is helpful to the Committee members.
Robert H. Buesing
Attorney
Trenam Kemker
101 E. Kennedy Boulevard, Suite 2700
Tampa, FL 33602
Direct: 813.227.7462 Phone: 813.223.7474 Fax: 813.227.0462
rbuesing@trenam.com
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Nice Bob! I will take a look at these pleadings for sure. It had been
my impression based on recent law that coverage is triggered at the time
of manifestation, even if such manifestation is not readily observable.
Accordingly, we've alleged that manifestation occurred during policy
periods (or warranty periods, for that matter) even though such
manifestation is latent and not discovered until after policy periods.
Without having read your briefs, I'm mindful of the case in which the
court admitted expert testimony that the leaks and/or damages would have
manifested themselves long before being readily visible or discoverable,
which gave rise to coverage.
Thanks for sharing.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Robert H. Buesing
Sent: Monday, August 15, 2011 4:58 PM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] "Occurance" v. "Manifestation" when a
GCpursues insurance under JSUB
As Chris Weiss told us last week, a common fact pattern in Florida is
slow, progressive water damage which is latent until there is an outward
manifestation. I mentioned that for CGL insurance purposes under JSUB
where a general contractor claims that a sub's poor work led to the
damage, there is a hotly contested issue as to when insurance coverage
is triggered. This issue may be resolved by the 1st DCA when it reviews
the attached Circuit Court Order. Amerisure has expressed a desire to
make this a test case to resolve this issue under Florida law.
Several Committee members asked me to forward the briefs in this recent
case. While the briefs are long the issue can be summed up as is there
insurance coverage as the damage is occurring (even if not known until
later) or must there be an outward manifestation to trigger coverage?
If this version stands, this will benefit general contractors who had
older policy forms that did not expressly exclude this coverage, as most
of the newer ones do. I hope this is helpful to the Committee members.
Robert H. Buesing
Attorney
Trenam Kemker
101 E. Kennedy Boulevard, Suite 2700
Tampa, FL 33602
Direct: 813.227.7462 Phone: 813.223.7474 Fax: 813.227.0462
rbuesing@trenam.com
www.trenam.com<http://www.trenam.com/SignatureImages/TK-RobertBuesing.gi
f>
Confidentiality Notice: This e-mail transmission, and any documents,
files or previous e-mail messages attached to it may contain
confidential information that is legally privileged. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any disclosure,
copying, distribution or use of any of the information contained in or
attached to this transmission is STRICTLY PROHIBITED. If you have
received this transmission in error, please immediately notify us by
reply e-mail, or by telephone at the direct dial number above and
destroy the original transmission and its attachments without reading or
saving in any manner. Thank you.