PRODUCT LIABILITY ECONOMIC LOSS RULE AND “OTHER PROPERTY” DAMAGE

Posted on November 5, 2022November 6, 2022 by Edward Garber

One of the best defenses a manufacturer has, particularly in non-personal injury cases, is the economic loss rule. Lo and behold, a recent opinion out of the Middle District of Florida, Dero Roofing, LLC v. Triton, Inc., 2022 WL 14636884 (M.D.Fla. 2022), touches on this very subject with cogent analysis regarding “other property” damage for purposes of the economic loss rule.

In Dero Roofing, a roofing contractor repaired hurricane damage to roofs of condominium buildings. The roofing contractor became a certified applicator of the manufacturer Triton’s products. After the roofer applied certain products with a sprayer, the products “streaked down the roof tiles onto ‘the exterior and interior of the [Condos], including penetration of the residents’ screens, gutters, and other related areas.” Dero Roofing, supra, at *1. The roofing contractor obtained an assignment of the condominium’s claims and sued the manufacturer and distributor of the (Triton manufactured) products.

The defendants moved to dismiss under the economic loss doctrine.

The economic loss doctrine “prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any property other than itself.” Dero Roofing, supra, at *3 (quotation and citation omitted).

Well, what is other property? The Dero Roofing opinion explains.

When a defective product is ‘an integral or component part’ of a larger item, then damage to the larger item ‘caused by this component part was not damage to separate property.’ As the rationale flows, a component becomes part of the purchased product, so they are one. If nothing else was damaged, therefore, the economic loss rule applies because there was no damage to other property.

To qualify as other property, there must be damage to something ‘unrelated and unconnected to the product sold.’ In other words, ‘there is no privity between the owner of the property damaged and the distribution chain for the product causing the damage.’ And, crucially, ‘The character of the loss determines the appropriate remedies.’ That’s lawyer-speak for saying ‘one must look to the product purchased by the plaintiff, not the product sold by the defendant.’

Dero Roofing, supra, at *3 (internal quotations omitted).

Based on this definition of “other property” for purposes of the economic loss doctrine, the trial court held the economic loss doctrine applied to bar most of the plaintiff’s claims:

[The roofer] applied [the manufacturer’s products] to the roofs. They were component parts of each respective roof. And notably, the Condos presumably paid for completed roofs, not individual parts that could later make up a roof. In short, [the roofer] cannot bring a products liability action for damages to the roofs because those theories are barred by the economic loss doctrine.

Dero Roofing, supra, at *4.

However, since this was at the motion to dismiss stage, the court is allowing, in a limited capacity, certain arguments relating to one of the products to move forward, but with an important analysis (caveat) that is prudent analysis for anyone dealing with a products liability claim relating to damage to “other property”:

This case is still at the pleading stage (when the Court must accept well-pled allegations as true and view them most favorably to Dero [the roofer]). In part, Dero alleges the Condos suffered damage to their screens. As the Court understands it, TritoCryl [one of the producs] oozed below the roof onto either the window or lanai screens—damaging those screens and potentially whatever was beneath or inside them. There are no allegations to suggest the screens were anything but other property for the purposes of the economic loss rule. Specifically, nothing implies the screens were connected in any manner to the roofs or their repairs. So at this time, Dero plausibly alleged damage to other property of “the exterior and interior of the buildings, including penetration of the residents’ screens, gutters, and other related areas.”

To be sure, the damage as it relates to the gutters plus “exterior and interior of the buildings” (which the Court assumes could mean fascias, soffits, and walls) is a much closer call than the screens. While it leaves final resolution for another day, the Court notes an inclination to conclude this is not other property. Gutters, fascias, and soffits may be part of a complete roof (i.e., what the Condos bargained for). What’s more, the wall immediately adjoining the roof beneath a soffit would seem intimately connected with the roof. So the economic loss rule might eventually bar these types of damages too. But there is no need to step out on a limb over these matters today given the impossibility of concluding the screens weren’t other property on these allegations.

One final point. Even for the screens, ownership of that property might doom Dero’s claims. In Florida, it is settled that plaintiff must own the “other property.” Again, the Complaint does not clarify who owns the screens. If individual residents are the property owners, then Dero (through the Condos) cannot claim that as damage to other property. But that is a factual issue well outside the pleadings to resolve at a later stage.

Dero Roofing, supra, at *5.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

ALLEGING PROPERTY DAMAGE IN CONSTRUCTION DEFECT LAWSUIT

Posted on August 22, 2020August 22, 2020 by Edward Garber

When there is a construction defect lawsuit, there is an insurance coverage issue or consideration. As I have said repeatedly in other articles, it is all about maximizing insurance coverage regardless of whether you are the plaintiff prosecuting the construction defect claim or the contractor(s) alleged to have committed the construction defect and property damage. It is about triggering first, the insurer’s duty to defend, and second, the insurer’s duty to indemnify its insured for the property damage.

The construction defect claim and lawsuit begins with how the claim and, then, lawsuit is couched knowing that the duty to defend is triggered by allegations in the lawsuit (complaint). Thus, preparing the lawsuit (complaint) is vital to maximize the insurer’s duty to defend its insured.

In a recent opinion out of the Eleventh Circuit, Southern-Owners Ins. Co. v. MAC Contractors of Florida, LLC, 2020 WL 4345199 (11^th Cir. 2020), a general contractor was sued for construction defects in the construction of a custom home. A dispute arose pre-completion and the owner hired another contractor to complete the house and remediate construction defects. The contractor’s CGL insurer originally provided a defense to the general contractor but then withdrew the defense and filed an action for declaratory relief asking for the declaration that it had no duty to defend the contractor because the underlying lawsuit did NOT allege property damage. The trial court agreed with the contractor and granted summary judgment in its favor finding that the underlying complaint did not allege property damage beyond defective work. But, on appeal, the Eleventh Circuit reversed.

Among other allegations, the owner’s underlying complaint against the contractor asserted that the contractor committed defects through chipped pavers in the driveways and walkways, inconsistent paint finish, marks on ceilings, damage to exterior doors, damage to the top stair tread, damage to hardwood floors, metal roof dents, scratches in granite, holes in ceilings, etc. The owner sought its costs to repair and remediate the defects and damage from the contractor. In looking at whether the contractor’s CGL insurer had a duty to defend the contractor–the insured–the Eleventh Circuit (focusing on precedent out of the Eleventh Circuit) stated:

The operative amended complaint alleged that [the contractor] used subcontractors for work on the residence and that the residence was “replete with construction defects” and various damage. It did not further allege which subcontractors performed which work or how the damage occurred. Given these ambiguities, the complaint’s allegations are broad enough to allow [the contractor] to prove that one subcontractor negligently damaged nondefective work performed by another subcontractor. If [the contractxor] could establish that at least some of the damage arose in this way, there would be “damage apart from the defective work itself” and therefore “property damage.”

***

For these reasons, we conclude that the underlying operative complaint can fairly be construed to allege “property damage” within the meaning of the CGL policy and Florida law. Accordingly, the district court erred in granting summary judgment to [the CLG insurer] on this basis.

MAC Contractors of Florida, 2020 WL at *4 (internal citations omitted).

CGL POLICY COVERING ATTORNEY’S FEES IN PROPERTY DAMAGE CLAIMS

Posted on November 17, 2018April 24, 2020 by Edward Garber

Does a CGL policy cover attorney’s fees and costs in property damages claims, to the extent there is a contractual or statutory basis to recover attorney’s fees? Naturally, you need to review the policies and this is not a clear-cut issue, but there is law to argue under.

A case I have argued in support of CGL policies providing for coverage for attorney’s fees as a component of property damage claims when there is a contractual or statutory basis is Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F.Supp.2d 1201 (S.D.Fla. 2008). In this case, the following applied:

-The policy provided coverage for “those sums that the insured becomes legally obligated to pay as damages of… ‘property damage’….

– Property damage was defined as “physical injury to tangible property, including all resulting loss of use of that property.”

-The term damage, in of itself, was not defined in the policy.

The trial court looked at whether attorneys’ fees and costs are damages arising because of ‘property damage’ to which the insurance policy at issue applies.

If an insurer may defend against a claim that is covered by the policy without taking into account potential attorneys’ fees and costs that will be awarded if the opposing party prevails, the insurer creates an externality whereby, in the course of seeking to minimize its own liability, it imposes potential costs on the insured at no additional cost to itself. This externality undermines the very reason why an insurer can at once possess a duty and a right to defend, which is that the interests of the insured and the insurer are presumed to be aligned with respect to a claim for damages covered by the policy. Every dollar of liability for a covered claim for which the insured cannot be held liable is a dollar saved by the insurance company. If, however, when defending against a claim that is covered by the policy, an insurer can increase the liability of the insured while simultaneously decreasing its own liability, the interests of the insurer and insured are no longer aligned, giving rise to a conflict between the insurer and insured and making the coexistence of the right and duty to defend untenable.

***

Therefore, this Court finds that attorneys’ fees and costs that an insured becomes obligated to pay because of a contractual or statutory provision, which are attributable to an insurer’s duty to defend the insured against claims that would be covered by the policy if the claimant prevails, constitute damages because of ‘property damage” within the meaning of a CGL policy.

Assurance Co. of America, 581 F.Supp.2d at 1214-15.

In July of 2018, the Ninth Circuit Court of Appeals reached a similar conclusion in Association of Apartment Owners of Moorings, Inc. v. Dongbu Insurance Co., Ltd., 731 Fed.Appx. 713 (9^thCir. 2018). The issue on appeal was whether the liability insurer was required to indemnify its insured for attorneys’ fees its insured was ordered to pay against a third-party that prevailed on a water damage claim. Similar to above, the policy did not define the term “damage” and the Ninth Circuit explained:

The policy provides coverage for damages Moorings [insured] must pay “because of” covered property damage. This phrase, which is undefined, connotes a non-exacting causation requirement whereby any award of damages that flows from covered property damage is covered, unless otherwise excluded. The Bradens [third-party claimant] were awarded fees…because their home incurred water damage, and they incurred additional loss in order to recover for this damage. The fee award is thus properly considered an award of damages that Moorings must pay “because of” that covered property damage and is not otherwise excluded.

Association of Apartment Owners of Moorings, Inc., 731 Fed.Appx. at 714.

DOCTRINE OF AVOIDABLE CONSEQUENCES AS AFFIRMATIVE DEFENSE

Posted on January 27, 2018January 27, 2018 by Edward Garber

The doctrine of avoidable consequences is an affirmative defense that can be used in certain property damage lawsuits. This is a defense that does not go to liability, but it goes to damages. This doctrine of avoidable consequences defense holds that a plaintiff cannot recover damages caused by a defendant that the plaintiff could have reasonably avoided. See Media Holdings, LLC v. Orange County, Florida, 43 Fla.L.Weekly D237c (Fla. 5^th DCA 2018). Stated differently, if the plaintiff could have reasonably avoided the consequences of the damages caused by the defendant then the plaintiff cannot recover those damages. However, the defendant needs to prove this defense — the burden is on the defendant to establish this defense (ideally through expert testimony).

For example, in Media Holdings, a party that was putting on a trade show at a convention center caused the fire sprinkler system to be set off causing substantial water damage. The owner of the convention center sued the party. The party argued the doctrine of avoidable consequences, i.e., that the convention center’s damages were caused by or exacerbated by its failure to shut down the sprinkler system as soon as reasonably possible; had the convention center done so, its damages would be much different. This defense was a question of fact. Remember, it is not a defense as to liability because the party did cause the sprinkler system to be set off. Rather, it went directly to the amount of damages the plaintiff was seeking.

CONTRACTORS: REVISIT YOUR FORCE MAJEURE PROVISIONS TO ACCOUNT FOR HURRICANES

Posted on September 12, 2017September 12, 2017 by Edward Garber

We now know and can appreciate the threat of hurricanes. Not that we did not appreciate the reality of hurricanes–of course we did–but Hurricane Harvey and Hurricane Irma created the type of actual devastation we fear because they hit close to home. The fear came to life, creating panic, anxiety, and uncertainty. It is hard to plan for a force majeure event such as a hurricane because of the capriciousness of Mother Nature. But, we need to do so from this point forward. No exception! And, I mean no exception!!

A force majeure event is an uncontrollable event that cannot be anticipated with any degree of definitiveness. The force majeure event will excusably delay or hinder performance obligations under a contract. One type of force majeure event is a hurricane—an uncontrollable and unforeseen act of Mother Nature.

Standard construction contracts will contain some type of force majeure language. The language will entitle the contractor to an extension of time to perform since the force majeure event will have excusably delayed the contractor’s performance. I am not going to rehash that standard language because this language needs to be modified and tailored to address the major risk of a hurricane. Not only is time impacted, but money is impacted too. We need to consider the total impact of a hurricane versus considering the impact in isolation or in a vacuum.

Take a look at your present construction contracts. Revisit the force majeure language. Does this language adequately address the time and monetary impacts associated with a hurricane? If it does, great! If it does not, or can be written much better, now is the time to make this language a MUST-INCLUDED provision in your construction contracts because this risk is real. It is not illusory and it will be a real risk during hurricane season. If you do not know or are unsure as to the language, please engage a construction attorney to review your contracts or propose standard language for you catered to your business needs. Even if you feel comfortable with the language, I would still encourage you to have a construction attorney review the language and provide constructive feedback on the language. At this point, there is no excuse to neglect this risk or minimize the potential of a devastating time and cost impact. Regardless of the type of construction work you perform, this risk needs to be addressed. Any owner should appreciate this risk because it is a reasonable risk that needs to be accounted for with certainty in your construction contract. Is this a risk you completely want to assume from a cost standpoint?

I have drafted numerous force majeure provisions tailored to the risks of a project and business objectives of a client. I have drafted specific provisions or negotiated provisions dealing with the risk of a hurricane. Based on this experience, here are my suggestions when considering the risk of a hurricane and the potential time and monetary impacts associated with the risk:

1) Make sure there is builder’s risk insurance covering property damage during construction. Builder’s risk insurance policies are specialized property insurance policies for construction projects. Make sure the policy does not exclude hurricanes. In other words, you do not want hurricanes to be an excluded peril, particularly if there is the chance your work will take place during the hurricane season and/or you are performing work where storm surge or flooding caused by a hurricane can be an issue. If there is a sub-limit for hurricane-caused damage, know what that sub-limit is. You want to know a) what property and materials will be covered for hurricane-caused damage, b) whether costs to protect the property and materials from the hurricane are covered, c) whether the policy covers repair costs, and 3) whether the policy covers delay-type damage caused by the hurricane. Get a copy of the builder’s risk policy in advance. This way you know whether or not you need to supplement the policy accordingly or, alternatively, you want specific perils covered before that policy is bound. In fact, you will likely want to supplement this with a construction equipment / inland marine insurance policy. Work with an insurance broker that has experience with construction projects to ensure you have the right insurance in place for the project and your business.

2) Make sure your contract specifically identifies a named storm such as a hurricane as a force majeure event. Make sure your contract specifically identifies a hurricane as a force majeure event. Be specific. A hurricane should be an event that entitles you to additional time to perform since time will be spent protecting the work and tying down equipment and materials, time will be spent dealing with the actual hurricane, and time will be spent assessing the damage, remediating the damage, and ramping back up.

3) Make sure your contact entitles you to delay-related compensation associated with a hurricane such as a force majeure event. A time extension for a hurricane is a given. But, what about compensation for the impact? Your project schedule is not going to include the risk of a hurricane, as there is no reasonable way to include that time in a project schedule. Hence, the time extension. As we know though, time is money. You want to include a provision that entitles you to compensation for the time impact. The provision should entitle you to utilize contingency money for any delay or, perhaps more appropriately, entitle you to a change order for the time-related costs. (I have even drafted provisions that include a specific force majeure contingency to address associated costs for a force majeure event.) You can even stipulate to a daily rate for such time-impact costs (which I have also done) caused by a hurricane or force majeure event. A hurricane will not only prevent you from performing, but it will shift your performance to essential activities (that will not be included in your schedule). It is reasonable for impact-related costs to be recoverable for such a force majeure issue. It is unreasonable for the risk to be entirely shifted to the contractor because Mother Nature is certainly a risk that a contractor cannot control.

4) Make sure your contract entitles you to recover costs associated with preserving and protecting work in-place, materials, and equipment. As mentioned, a hurricane will divert your performance to progressing the work to preserving and protecting work in-place, materials, and equipment. All of this needs to be protected from prolonged, heavy wind activity, torrential rain, and potential surge and flooding. There are costs associated with this and you want to make sure this is performed to minimize the likelihood of any loss. You also want to make sure you have time to perform this work. Be safe, rather than sorry, and do not wait to the last minute to see what direction the hurricane ultimately pursues. Hurricanes, as we know, are unpredictable and take unpredictable paths. We need to make sure we have time to not only preserve and protect the work, materials, and equipment, but that our employees and subcontractors (and their families) safely make the right decisions to protect their homes and families. Similar to the above, make sure your contract specifies how you get paid for this type of work – whether through contingency funds or, perhaps more appropriately, a change order. Notifying the owner in writing in advance of the protective measures being performed is always a good idea. If the owner elects not to implement such measures because it does not want to bear the cost, then the owner is evidently bearing risk.

5) Know your contractual notification requirements. Your contract probably includes notification provisions to address time impacts and costs associated with protecting the work. Make sure these provisions are reasonable in light of a hurricane or force majeure event. Your priorities when dealing with a hurricane, in particular, will be shifted. For this reason, you want to make sure the notification provisions are not unreasonably onerous and are more than reasonable to account for the issues you will be dealing with. Think these issues through. Remember, not only will you be dealing with the issues associated with the construction project, but there will be internal issues dealing with the safety of your employees, their families, and any subcontractors you hire.

Do not panic if your contract currently does not, in your opinion, sufficiently address all of these items. You can address this moving forward. You should address this moving forward. Again, no excuses. And, again, do not be reluctant to hire a construction attorney that can best protect your rights moving forward to account for this risk that we know is REAL.

MAKE PRUDENT DECISIONS REGARDING YOUR HURRICANE IRMA PROPERTY DAMAGE CLAIMS

Posted on September 11, 2017September 11, 2017 by Edward Garber

Hurricane Irma barreled down on us with all of her forceful winds and torrential rains. She was scary and relentless. There was mass evacuation. Commercial flights were booked. Trains were booked. There was gridlock with the concern as to whether gas would even be available. There were many people that did not evacuate, uncertain as to the eventual path Irma would take. Originally projecting an easterly course, people on the east coast evacuated to the west coast, central Florida or out-of-state. She then shifted to a westerly course forcing people on the west coast to evacuate to the east coast, central Florida, or out-of-state. It was chaos stemming from the total unpredictability of Mother Nature. It was chaos stemming from the dreadful images of Hurricane Harvey. Mother Nature and all of her uncertainty is undoubtedly frightening, as proven by her devastation throughout the amazing state of Florida.

We are fortunate. We made it through her wrath. We have our life and our health. This is the most important. I repeat — the most important. Sure, there may be property damage at our house or in our community, but it could always be worse. I repeat again — it could always be worse. Assets are replaceable. Life and health is not replaceable.

When it comes to property damage, perspective is important. Do not forget perspective. Please do not engage in an emotional knee jerk reaction and hire the first person that comes your way to assist with the damage and fallout of Irma. Disaster unfortunately causes others and the unqualified to prey on vulnerabilities. Take a deep breath and do not neglect to digest your damage and do your due diligence on your course of action and hiring someone you will trust and know will assist in your needs. Here are some tips I encourage:

1) Survey the damage. After you have initially digested and assessed the damage, do another walk-through of your property and survey and notate the damage you are observing. Either get a pen and pad and write down your assessment or use your phone, ipad, or laptop to memorialize your observations.

2) Persuasively photograph the damage. Sure, everyone tells you to do this. But, I am telling you to look at the photos you take to ensure you are capturing the damage to the best of your ability. This means to focus on the elevation of your photo and the proximity of your camera or phone (in the case of a camera phone) to the damage or item you are capturing. The reason for this is to persuasively capture the damage – take photos from various elevations, angles, and distances to capture the water damage and hurricane-caused damage. Correlate the photo with your written survey. If you use a camera that is not a camera phone, date stamp the photograph.

3) Persuasively video the damage. Similar to above, if you have a systemic leak, do not just photograph that leak. Take a video of it that captures the water intrusion and movement of the leak. Correlate your video with your written survey. You can also take a video of the damage and narrate that damage as you are observing it.

4) Obtain a copy, if you can, of your property insurance policy or your declaration page so that you can submit a claim ASAP. If you have a property insurance policy, have this handy. Insurance is complex and it is always advisable that you work with a professional when submitting a claim under your policy for hurricane-related damage. You will want to submit an insurance claim soon to report the damage caused by Irma. Your property insurer is anticipating claims caused by Irma.

5) Hire a trustworthy and qualified professional. There will be a lot of lawyers and/or public adjusters soliciting your business. Lots of them. They will be offering to help. Some will have good intentions. Others will not. They will want you to pay them a contingency percentage of anything you receive from your property insurer (oftentimes, a minimum of 20% or more based on the issue). You want someone QUALIFIED and you can TRUST – that you know will not take advantage of the situation and will keep you informed and give you the best advice so that you can make the most informed decisions. This is very important and based on the severity of the damage you may want to explore different options to compensate a professional.

6) If you hire a contractor, make sure they are licensed. If you hire a contractor to implement immediate repairs and remediate water intrusion, make sure they are licensed and read what you sign. A reason to engage a professional is to ensure you are properly notifying your property insurer and you are not being taken advantage of by hiring a qualified professional. Also, make sure you save all contracts, invoices, and payments you make to preserve a basis for reimbursement from your property insurer.

7) Do not unilaterally discard any damaged contents or otherwise. Do not start throwing things away or discarding damage before you engage in items 1 – 5 above. A reason you want to hire a professional is so that you do not prejudice your rights by discarding potential evidence before notifying your insurer.

The key is not to act haphazardly based on your emotional reaction to the damage. I know it is emotional. I get it. But, because it is emotional, you want to make sure that you are implementing prudent decisions moving forward to maximize your property insurance. You want to make sure you are implementing a path that benefits YOU!