Thursday, October 19, 2017

Outside the Coverage Period but Still Covered: New Jersey's Warning to Insurers in Construction Defect Matters

By:      Jacqueline A. Muttick, Esq. & Marc Shortino, Esq.
            Associate, New Jersey                Partner, New Jersey

Date:   October 19, 2017


            On October 10, 2017, the New Jersey Appellate Division addressed the “continuous-trigger” theory of insurance coverage in Air Master & Cooling, Inc. v. Selective Insurance Company of America, __ N.J. Super. __, Docket No. A-5415-15T3 (App. Div. Oct. 10, 2017). The Court found that the continuous trigger theory of insurance coverage applies “to third-party liability claims involving progressive damage to property caused by an insured’s allegedly defective construction work” and that the “last pull” of the trigger for ascertaining the end of a covered occurrence “happens when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it.” Id. (slip op. at 3).

            The insured, Air Master & Cooling, Inc. (“Air Master”), was hired as a subcontractor to perform heating, ventilation, and air conditioning (“HVAC”) work at a condominium building project. Between November 2005 and April 2008, Air Master installed condenser units on the roof and HVAC devices within each unit. Air Master also had a number of Commercial General Liability (“CGL”) insurance policies during and after this work, including a policy through Penn National Insurance Company in effect from about June 22, 2014 through June 22, 2009, a policy through Selective Insurance Company of America (“Selective”) effective June 22, 2009 through June 22, 2012, and a policy from Harleysville Insurance Company (“Harleysville”) covering June 22, 2012 through June 22, 2015.

            In the beginning of 2008, unit owners began to notice water infiltration in their individual units. Specifically, by February 2008, as reported in a news article, at least one unit owner noticed leaks in the walls and windows of his unit. A May 3, 2010 expert consultant report found roof damage caused by moisture from water infiltration, and recommended removal and replacement of those damaged areas of the roof. That expert was unable to determine when the moisture infiltration occurred. Individual unit owners and the condominium association filed suit against the project’s developer and other defendants for property damage, and those defendants brought third-party complaints against subcontractors, including Air Master.

            Air Master sought defense and indemnity from its insurers under its CGL policies, and filed a declaratory judgment action against both Selective and Harleysville when those insurers disclaimed coverage. Selective’s CGL policy stated, in part, that the policy provided coverage for property damage occurring “during the policy period.” The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also defined “property damage” as “physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it.” “Property damage” included the “loss of use of tangible property that is not physically injured” and that loss “shall be deemed to occur at the time of the ‘occurrence’ that caused it.” Id. (slip op. at 7).

            Selective moved for summary judgment, arguing its policy did not cover water damage that materialized or manifested before the policy coverage began in June 2009. Air Master opposed that motion, arguing that the continuous-trigger theory of coverage applied and that coverage continued until the “last pull” of the trigger of injury occurs. Air Master also argued that manifestation occurs when it is known, or reasonably knowable, that damage is attributable to the work of the insured, which occurred in May 2010 with the issuing of the expert report. The trial judge granted summary judgment, ultimately finding that while the continuous-trigger theory of coverage applied, the damage manifested prior to the start of Selective’s policy period. Air Master appealed that determination.[1]

            On appeal, the Appellate Division also found that the continuous-trigger doctrine applies to claims for third-party, progressive property damage in construction defect litigation. “[T]he continuous-trigger theory recognizes that, because certain harms … will progressively develop over time, ‘the date of the occurrence should be the continuous period from exposure to manifestation.’” Id. (slip op. at 12) (quoting Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 454-56 (1994)) (applying the continuous-trigger theory in the context of property damage claims arising from the installation of asbestos-related products). “Under such a continuous-trigger approach, ‘all the insurers over that period [are] liable for the continuous development’” of the damage. Id. (quoting Owens-Illinois, Inc., 138 N.J. at 450-51). “[T]he continuous-trigger approach requires multiple successive insurers up to the point of manifestation to cover a loss,” which the Court noted provides more coverage for claims and encourages insurers to monitor developing risks. Id. (slip op. at 13) (citing Owens-Illinois, Inc., 138 N.J. at 458-59). The Appellate Division stated that the doctrine was not unfair to insurers, but instead required them to bear a portion of the coverage burden that accumulated while the property harm had not yet manifested, as occurs in construction defect litigation where defects are not immediately obvious. Id. (slip op. at 17) (citing The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, __ N.J. __, Docket No. A-101/102/103/104-15 (2017) (slip op. at 34)).

            The Appellate Division also held that the “last pull” or “end” point of coverage under the continuous-trigger theory occurs when there is an “essential” manifestation of the injury, which is the “revelation of the inherent nature and scope of that injury.” Id. (slip op. at 25). That manifestation does not require that the damage be shown to be attributable to the conduct of a specific insured, as such an analysis would be highly fact-dependent and require lengthy discovery to determine. Id. (slip op. at 19). Instead, the “last pull” should be “a date of initial manifestation that is common to all parties – regardless of which contractor or subcontractor may be ‘at fault’ for the occurrence.” Id. (slip op. at 21).

            Using the above analysis, the Court determined that while the continuous-trigger doctrine applied to the third-party, progressive property damage claims asserted in the construction defect litigation, the “last pull” or “essential” manifestation could not be determined by the record presented on appeal. Specifically, it was unclear what defects were or reasonably could have been revealed between the time of the first unit owner’s complaint in February 2008 and the start of Selective’s CGL policy in June 2009.

            The application of the continuous-trigger doctrine to third-party, progressive property damage claims in New Jersey construction defect litigation impacts insurers who may be held liable for occurrences that would otherwise be outside the insured’s policy period. It also, as noted by the Appellate Division, distributes risk to several insurers which may have the impact of resolving claims earlier in litigation through settlement. Insurers will need to be aware that occurrences outside of the policy period may still result in risk on the policy under this ruling.




[1] Harleysville also obtained summary judgment and Air Master did not appeal that determination.  

Wednesday, October 4, 2017

Appellate Court in Divorce Proceeding Gives Weight to Motive Behind Life Insurance Policy: What Doors Does This Open Moving Forward?

By:      Michael E. Kar
            Associate, New York

Date:   October 4, 2017

            In a recent decision, the Second Department has opened the door for matrimonial attorneys and parties to question the motive behind the failure to pay premiums for life insurance policies, for the purpose of automatic orders in divorce actions.

            Upon the commencement of all matrimonial actions in New York, a series of automatic orders are initiated, pursuant to Domestic Relations Law § 236(B)(2)(b). The purpose behind these automatic orders, also called ‘notice provisions’, is to maintain the status quo and preserve assets in the time between the filing for divorce and the final determination, either by an agreement between the parties or the decision of the court. Among other restrictions, neither party can: dispose of particular assets (except in the “ordinary course of business”); incur unreasonable debts; or remove from medical insurance either, (i) the other spouse, or (ii) the children. Additionally, the last subsection of § 236(B)(2)(b) provides that upon the commencement of the action each party must “maintain existing life insurance… in full force and effect.” DRL § 236(B)(2)(b)(5).

            This last automatic order, in particular, prevents a spouse from changing policies or withholding premiums/payments that may result in jeopardizing the future financial security of the children or the other spouse. If either spouse violates this rule, such as by refusing to pay the premium on a policy, that spouse can be held in contempt of court. A motion to be held in contempt may result in an order forcing the other party to pay arrears, and can even lead to a finding of criminal contempt and incarceration. If a party is held in contempt ­– by further refusing to comply with a court order -- “willful” disobedience could result in jail time.

            In a recent Second Department decision, however, when faced with this exact scenario the court did none of the above. In fact, faced with a wife who refused to maintain her husband’s life insurance policy, the court approved her conduct.

            In Savel v. Savel, the wife/mother stopped paying the premiums on her husband’s life insurance policy, after the automatic orders had been put into effect. 153 A.D.3d 872 (2d Dept 2017). The husband’s attorney moved to hold the wife in contempt for violation of the automatic orders, after which she continued to withhold payment. In a relatively-novel defense, the wife claimed that she did not violate the orders because the life insurance policy was intended to be a “savings vehicle.” The wife argued she should not be forced by the court to contribute her post-commencement income to a savings vehicle for the husband. Post-commencement income is of course separate property, not marital, as the filing for divorce stops the clock on the economic partnership.

            The wife further argued that the husband’s rights were not “prejudiced” by this violation. Indeed, the parties in this case maintained three whole-life life insurance policies in the amounts of $12 million for the benefit of the children, $7.6 million for the wife, and the subject policy which was the supposed “savings vehicle” owned in the husband’s name.

            During the proceedings below, the husband admitted to his policy serving as a “savings plan” as opposed to the traditional motive behind such a mechanism (to wit, as a safeguard for the family in the event of a death). This admission was enough for the Nassau County Supreme Court to rule in the wife’s favor. The Second Department affirmed the decision below denying the husband’s contempt motion and not requiring the wife to pay the premiums on the husband’s life insurance policy.

            But for the husband’s admission of the purpose of the life insurance policy as a savings plan, would this whole-life policy be deemed an investment rather than a safeguard? Are policies such as this not usually the result of a hybrid of motives, including death benefit for the family and asset diversification? These questions in regard to the pre-judgment automatic orders are important, but have the potential to be overshadowed by the larger implications of the Savel court’s holding: how does the holding affect the equitable distribution of whole-life insurance policies collectively?

            Currently, pre-marital life insurance accounts are deemed separate property, with an argument that premiums paid during the marriage from the marital funds are marital. In this scenario, the non-owning spouse may be entitled to a credit for half the monies paid toward the premiums, but not the balance of the cash value of the policy. On the other hand, investment accounts that are separate property stay separate, unless they are actively managed. Accounts where the appreciation of value is “passive” are deemed not furthered by the economic partnership, and therefore remain separate property. Alternatively, if an investment account fluctuates in value due to “active” involvement of the spouses, the other spouse can receive a credit for all increases in the balance during the marriage.

            How many doors does Savel open? For example, are courts now required on pendente lite  support motions (for temporary support during pendency of the action) to make a factual finding as to whether an insurance policy is, (i) an investment, or (ii) security/death benefit for a family?  Also, now that the door is open to deeming life insurance policies “savings vehicles” in some circumstances, can the cash value of separate whole-life policies be actively managed, and the appreciation thereof subject to equitable distribution?

            The Second Department’s evaluation of the motive behind a life insurance policy kicks down a door in relation to automatic orders, and in doing so, possibly opens the door in relation to insurance policy equitable distribution, or credit.