CGL Contractual Liability Exclusion in Flux: Insurer and Policyholder Perspectives

Grappling with the Expanding Exclusion for Construction and Commercial Contracts

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, October 23, 2013

Recorded event now available

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Program Materials

This CLE webinar will provide counsel with a review of a potentially alarming—or gratifying—recent trend in expanding the contractual liability exclusion in CGL policies. The panel will discuss the historical analysis of the exclusion and the impact on the construction industry, as well as non-construction commercial liability.

Description

The Fifth Circuit’s Ewing Construction ruling could expand the contractual liability exclusion to preclude coverage for a contractor’s construction defect, shocking many policyholders in the construction industry. The opinion is withdrawn while certified questions are pending before the Texas Supreme Court.

Many jurisdictions have addressed whether the contractual liability exclusion includes a breach of contract claim. The majority view holds that breach of contract claims based on the insured’s negligence are not “assumed” liabilities and do not fall within the contractual liability exclusion.

While the Fifth Circuit’s approach in Ewing Construction deviates from the majority view, opposing court interpretations are not uncommon in Texas, as well as other jurisdictions. Some jurisdictions still haven't weighed in on the issue, and the full impact of Ewing remains to be seen.

Listen as our authoritative panel of attorneys analyzes the potential trend in expansion of the CGL contractual liability exclusion and impact of the expansion of the exclusion on the construction industry as well as non-construction commercial liability.

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Outline

  1. Overview of the contractual liability exclusion
    1. Historical CGL and ISO form changes
  2. Analysis of recent case law
    1. Gilbert Tex. Construction L.P. v. Underwriters at Lloyd's London
    2. Ewing Construction Co. Inc. v. Amerisure Insurance Co.
    3. Majority vs. minority views
  3. Impact of the expansion of the exclusion on construction defect litigation
  4. Impact of the expansion of the exclusion on the use of indemnity agreements in non-construction settings

Benefits

The panel will review these and other key questions:

  • What is the majority view of the scope of the contractual liability exclusion and its applicability to liability arising from contractual agreement?
  • How does the analysis applied by the court in Ewing Construction impact construction defect litigation?
  • How does the analysis applied by the court in Ewing Construction impact the general use of indemnity agreements in non-construction settings?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Rodrigo (Diego) Garcia, Jr.
Rodrigo (Diego) Garcia, Jr.

Partner
Thompson Coe

Mr. Garcia has advised and represented insurers in numerous types of coverage disputes, including litigation...  |  Read More

Taubenfeld, David
David Taubenfeld

Partner
Haynes & Boone

Mr. Taubenfeld represents policyholders in every kind of dispute they may have with their insurers. He represents...  |  Read More

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