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Update on Past Articles

Here are a few updates on the past risk articles.

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First, in the article "Anti-indemnity Statutes", I mentioned being aware of and reviewing any "venue and choice of law" clauses. As for construction contracts are concerned, MCA 28-2-2116. Construction Contracts-void provisions", seems to take care of the "venue and choice of law" issue! Part of that Montana Code states: "(1) A provision, covenant, clause, or understanding that is in, collateral to, or affects a construction contract for a project in this state and that makes the contract subject to the laws of another state or that requires any litigation, arbitration, or other dispute resolution proceeding arising from a dispute pertaining to the contract to be conducted in another state is against the public policy of this state and is void and unenforceable."

Other than construction contract, MCA 28-3-102, seems to take care of the 'venue and choice of law' for miscellaneous contracts. The Montana Code simply states: "A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made."

"Does Faulty Workmanship Qualify as an Occurrence?" 

A recent Montana Supreme Court case has given new creditability to 'defective workmanship' being an 'occurrence'. The case, "Employers Mut. Cas. Co. v Fisher Builders, Inc. 383 Mont. 187, 371 P.3d 375(2016) has clarified that "objectively unintended or unexpected consequences resulting from an insured's intentional acts may constitute an "accident" and, therefore, an "occurrence" under a CGL policy".  This particular case arose during a contractor's construction work on a home where some alleged intentional acts caused a deck to collapse. The case was on appeal to the higher court and involved an earlier decision in "Blair v Mid-Continent Cas. Co. 167 P3d 888 (Mont. 2007)".  Apparently the lower court had relied on "Blair" in its decision in "Slack v Fisher Builders"(Employers v Fisher Builders)"which was decided solely on the basis that the insured's conduct was intentional and failed to consider whether the consequences of the insured's intentional acts were objectively intended or expected from the insured's standpoint. The higher court remanded the case so that the district court could apply the correct standard in determining whether the deck collapse was caused by an occurrence under the insured's policy.

"Uber Update"

According to the LA Times, 9/7/2016, it was reported that Uber drivers must go to arbitration-not the courts-to resolve disputes with the company. The ruling was from the U.S. 9th Circuit Court of Appeals in San Francisco.  Previously, U.S. District Judge Chen ruled that the arbitration agreements were unenforceable and unconscionable. The appeals court, however, said that Chen lacked the authority to make that call because the contracts require an arbiter to decide "all matters".  One key federal case that could now be derailed concerns whether Uber drivers should have been treated as employees as opposed to independent contractors. Uber had agreed to a $100-million settlement, which Chen rejected last month calling it "unfair and inadequate". Last year alone Uber had over 50 lawsuits filed against it with more filed since then. Certainly seems like the IPO Uber has had on its mind will wait a little longer.

Article By: Dennis Gambill - The author is an Insurance Litigation consultant. Adjunct professor at EMC for 8 years-Risk & Insurance. 40+ years-both MGA and agency experience.

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