Melito & Adolfsen P.C.
U.S. and International Litigation Firm New York City And The World

August 2014 Archives

Whether faulty workmanship constitutes an "occurence" continues to be revisited by courts across the country

Is there a shift in the longstanding majority view, including in New York, New Jersey and Connecticut, that construction defect claims do not constitute an occurrence when the damage is to the insured's own work because it lacks the requisite fortuity? The issue needs to be watched. The NJ State Assembly is considering a bill to redefine the term "occurrence" in a CGL policy to include damages resulting from a contractor's faulty workmanship. Other courts have even claimed that there is a new "majority rule" that inadvertent faulty workmanship is an "occurrence."

Are counsel's coverage opinions privileged in a subsequent coverage action with the insured? NY's First Department indicates not necessarily.

On 7/31/14, the First Department held that any documents that pre-date National Union's disclaimer are not protected from disclosure by the attorney-client privilege or the work-product doctrine or materials prepared in anticipation of litigation. National Union Fire Ins. Co. v. TransCanada Energy, USA, Inc., 114 A.D.3d 595 (1st Dep't 2014).