DCCA Hearings Officer rules against Nan Inc. on airport rental facility project bid protest.
This DOT project was first bid in 2014. The first three low bidders were all eliminated in favor of Hawaiian Dredging, which was slated to be awarded the bid based upon it being "low" after a reduction in job scope. Nan protested, and the DOT actually made an award of contract to Nan..
Then, the DOT apparently changed its mind again after it says new information came to light about Nan's bid being unbalanced and front loaded. Nan protested again, this time taking the protest to administrative hearing. The hearings officer issued a decision in Dredging's favor, but Nan is still considering further legal action (any legal action from now will not stop the job from moving forward). More information and analysis later.
In American Electric Co. LLC v. Parsons RCI, Inc., 2015 U.S. Dist. LEXIS 26087, the Hawaii U.S. Dist. Court was asked to rule on a summary judgment motion to eliminate a claim for liquidated damages in a construction project based upon the allegation that, in fact, the complaining party had suffered no damages and therefore, could not claim liquidated damages.
In analyzing this argument, the court attempted to predict what Hawaii's appellate courts would say on this issue. While it is not in dispute that under Hawaii law, liquidated damages must bear some relationship to a party's damages, the open question is which damages are to be measured -- actual damages, or anticipated damages? In other words, if parties anticipate at the time of contracting that they will suffer great damages in the event of delayed completion, but end up suffering minimal or no damages, can they still make a liquidated damages claim?
In the Parsons case, the contractor argued that in fact the complainant suffered no damages, because it was never itself assessed with any liquidated damages, and in fact received a bonus for completion of the job. The complainant argued that at the time of contracting, both sides agreed and understood its damages would be great if performance was delayed, and that in fact it did receive a lesser bonus than it would have if the job was completed on time, plus it had to pay certain monies to remedy defective work in order to secure additional time for the contract and avoid its own liquidated damages liability.
The court found under Hawaii law, it is clear that courts look to actual damages to measure against liquidated damages to determine if they are enforceable. However, the court also found that Hawaii's courts have never stated that anticipated damages are not to be likewise used as a measure against liquidated damages and that certain cases cites by Hawaii's courts take just such an approach. Thus, the court looked to both, ultimately finding issues of fact on both such approaches prevented a finding of summary judgment.
For drafting practitioners seeking enforcement of their liquidated damages clauses, this case emphasizes the importance of being able to demonstrate that the liquidated damages number used in the contract was actually discussed, negotiated, and agreed-upon, and not simply plucked from thin air and dropped into the agreement. Conversely, from the Contractor's side, if you are anxious not to have to pay liquidated damages in the event no delay damages are incurred, you should definitely include such a provision in the contract's liquidated damages clause, i.e., "Notwithstanding the above, in no event shall any liquidated damages be sought or obtained in the event no actual damages are suffered."
I recently litigated a bid protest seeking to overturn acceptance of a bid for a $7 million dollar paving job. The time set for bid opening was 2:00. On the date of bid opening, the low bidder ran into the room, self-stamped his bid, and handed it over to the public agency rep. behind the counter. The bid was stamped on time, but was not received in the hands of the public agency until 1 minute after the bid deadline.
We protested the low bid, taking the bid to the DCCA administrative hearing level. The hearings officer ruled in our favor, finding that in order for a bid to be deemed "received" it had to be in the agency's possession and control, and if that happened after the bid deadline set forth in the invitation for bids, the bid was late.
The low bidder and agency appealed their loss to the Second Circuit Court, where the original decision was upheld.
It didn't end there, however. The public agency still refused to award to the remaining low bidder, saying it was going to rebid the entire job rather than award to the low bidder. We asked the Second Circuit to hold the public agency in contempt for refusing to comply with a pending court order, and on Tuesday, February 17 a notice of award letter was issued.
Bids on public jobs often do come down to the last few minutes, due to subcontractor price changes or other variables, but it is pretty rare to see one that comes down to seconds. Still, especially for the bidder who got his bid in on time, late is late, and the law is pretty unequivocal on the issue -- when a bid is turned in after the time identified in the invitation for bids, it will not be opened but returned to the bidder. The big question in this protest is what "delivered" means -- does it mean self-stamping, especially a tacit practice that is not advertised as being allowed and is not used by the majority of bidders? Or does it mean both stamping and delivery of the bid into the hands of the agency? In this case, the hearings officer found it meant both -- which does make sense since if self-stamping alone could constitute "delivery," a bid could be deemed delivered even if it never reached the hands of the agency. In any event, the case teaches bidders that they must have a failsafe plan for ensuring their bids get in on time.
AIA contract language on indemnification typically requires contractors to hold harmless and indemnify against claims arising out of their performance of work. Simply translated, this means if an owner is sued and ultimately it is determined that the contractor or its representatives or subcontractors were the source of the suit, the contractor must indemnify the owner for the damages it incurred as a result of being sued.
Painful litigation experiences have driven industry participants to routinely attempt to alter this clause to include a simple addition, that contractors must "defend," hold harmless and indemnify... and this simple addition has created a host of issues for unwitting contractees who sign off on this provision without accounting for the potential risk associated with it.
Newest case in point: Arthur v. State of Hawaii, et al., Nos. CAAP-13-0000531, 552, and 615 (Haw. Ct. App. February 27, 2015). In this case, Hawaii's ICA was asked to revisit its Pancakes v. Pomare decision regarding private indemnity agreements, in which the ICA basically held that when a private contractee contracts to "defend" as part of an indemnity agreement, it takes on the role of an insurer who likewise contracts to defend insurers who are sued in civil actions.
The Arthur case arose out of a wrongful death case in which a homeowner fell down a steep hillside and suffered a mortal head injury. The homeowner's husband sued, claiming negligence against the State which originally owned the land, the developer who developed it, the designer who designed its improvements, the contractor who graded it, and finally the chain link fence subcontractor who, for $18,000, constructed a two foot high chain link fence at the base of the hill. In their contracts, all of the parties had signed off on "defend and indemnify" provisions promising to defend against claims arising out of their contracts.
At issue on appeal were various rulings at the Circuit Court level regarding the effect of these multiple indemnification and duty to defend clauses but for purposes of this post, the case boils down to three important findings.
Pancakes Is Still The Law: First, though specifically requested, the ICA refused to reconsider its decision in Pancakes vs. Pomare, which essentially held that when a private party contracts to defend and indemnify, it will be held to the same standards of "defense" as an insurer, meaning the duty will be determined by and enforceable upon, the allegations of the complaint, and not after trial and a determination of fault. This means that, like insurers, if there is even the possibility of a finding against the indemnitor based upon the allegations of the complaint, the indemnitor must defend against the entire complaint. Industry consternation that private contracting parties are not the same as insurers, i.e. they do not have the capitalization, they are not likewise governed by statute, and most importantly that is not their business, apparently does not and will not sway the court from its original finding.
Hawaii's Insurance Statute Prohibiting Indemnification for One's Own Negligence, Is Not Very Protective: the designer in Arthur attempted to point out to the ICA that by putting indemnitors into the shoes of insurers, the court was violating HRS 431:10:222 , which provides that for construction projects, courts will not enforce indemnity agreements where one party claims indemnification for a party's sole negligence. Focusing on the language "sole negligence," the ICA stated that the plaintiff's complaint did not allege "sole" negligence on the part of the contractor. Therefore, the designer could not claim the indemnification clause was unenforceable under Hawaii law.
The duty to defend is not a flow through duty unless specifically contracted to be one: Despite finding that Pancakes is still governing law and that the duty to defend puts the indemnifier into the same shoes as an insurer who likewise contracts to defend, the ICA was unwilling to assign to the fencing subcontractor a flow through duty to the defend not just the entity with whom it contracted, but the develop and Architect as well, because of flow through provisions in the parties' contracts. Because the Contractor contracted to defend and indemnify the Owner and because the Designers did likewise, they could not disclaim their responsibility to pay for a portion of the defense.
Last year I researched and wrote a paper on the Okada Trucking decision, first issued by the Hawaii Supreme Court in 2002. The decision dramatically affected the scope of a general engineering and building license in the state, altering and limiting work traditionally performed by general contractors, and making them little more than construction managers for the majority of work to be performed on their projects.
With a number of legislative bills pending that are either attempting to use the Okada Trucking decision to further decrease the scope of a general contractor's license, or else address Okada Trucking through elimination (or refinement) of the subcontractor listing requirements, it is appropriate to understand the case, what the law was before the case was decided, how Okada Trucking came to be, where the case puts us in terms of other states with licensing requirements similar to Hawaii, and the effect of the case on the construction industry.
Just returned from the Forum's January meeting in Scottsdale. One of the many well attended and well done programs was a breakout session on litigating the $200,000 case, put on by Franklin Elmore of the Elmore Goldsmith firm in South Carolina, and Erik Raines of the Hill Ward Henderson firm in Tampa Florida.
For construction lawyers, litigating a case in which $200,000 or less is in dispute, is a difficult challenge. Construction claims tend to be complex, involve multiple parties, and often require the assistance of experts in order to be resolved. Even a small payment dispute between owner and contractor, or contractor and subcontractor, will often be accompanied by quality of work or delay claims that are traditionally reviewed and explained in trial by experts, and the cost of litigating a smallish fight can very easily eclipse the amount in dispute. So, what are some tips for litigating a $200,000 (or less) construction dispute?
1. Define what a "win" is up front: because of the financial constraints on a $200,000 case, and the reality that litigation to conclusion will make the case financially unfeasible, it is important to define up front what a "win" looks like when you know you will likely not take a case through trial. Going in to a dispute with managed expectations is important for these cases -- even if the case is a slam dunk based upon the evidence, if the cost of presenting that evidence at trial eclipses the sum in dispute, that does the client no good. So, understanding that a "win" in a $200,000 case means getting what you need (but not everything) but at a cost that still makes the endeavor worthwhile, is key.
2. Take advantage of early mediation: many construction contracts include pre-dispute mediation clauses requiring parties to attempt to resolve their differences in mediation before proceeding to litigation. Often parties treat this as a perfunctory exercise but for certain cases this presents an opportunity to resolve a case early. This requires cooperation and early preparation by counsel and a decent measure of client control/expectation management. Also, careful selection of the mediator is important. For personality driven disputes, it is important to find a mediator who can bridge differences. For disputes based upon entrenched and differing views of the facts and law, it can be very helpful to find a hard working, evaluative mediator who is bright and who can offer a neutral third person's view of each sides' case. Attorneys (and clients) must work up their cases to the extent possible before an early mediation, and go in prepared to settle. In such cases I have settled disputes early. Where any of these components are missing, parties can be prepared for a long dispute.
3. Notify carriers/invoke indemnity provisions early: Frank Elmore pointed out at the conference that most litigants do not pay enough attention to the indemnity provisions, and use them in conjunction with other measures in the contract, to accomplish effective risk shifting. Insurance companies can be very slow to act and make agile litigation (and resolution) difficult. How common is it for insurers to refuse to start discussing numbers until they have seen fully fleshed out expert reports, involved every possible other insurer or subcontractor, and been advised of the likelihood of success on the merits after months of costly depositions? This may be well and good for the multi million dollar defect case, but what about one that is for $200,000 or less? For attorneys who have the good fortune to work with experienced adjustors who understand the way that claims can escalate if allowed to fester, agile and prompt action by insurers is possible and can lend itself to quick settlements. Claimants complaining about defects in their homes/buildings will have much less incentive to continue finding defects and escalating their claims, if they have reached a settlement with the only likely source of funds in a construction defect dispute. Understanding this, it is always in the best interests of the defendant and insurer to try to work a resolution to a case sooner rather than later, even if every fact is not known, because in defect cases, chances are that the cost of the claim is only going to go in one direction.
4. Technology advances: Elmore and Hicks stressed the importance of using the technological advances that are available for litigants, such as predictive coding for document review. This is at bottom software that enables a computer to weed out documents that are key to a case instead of requiring manual review of each page by an attorney or paralegal. The upfront cost of such software makes its something that will have to be planned for by firms up front and not attributed to a single smallish case, but for those firms that have it and are able to effectively use it, they will have a competitive edge both in marketing themselves and litigating such cases.
In the 2013 legislative session, the senate passed Senate Concurrent Resolution No. 84, Senate Draft 1 (2013) ("Resolution"), which requested that the Contractors License Board ("Board") conduct an assessment of each of the contractor licensing classifications under chapter 444, Hawaii Revised Statutes ("HRS"), and chapter 77, Hawaii Administrative Rules ("HAR"), and prepare a report that evaluates each classification.
The board completed its task near the end of last year and issued a report to the legislature that is currently pending, which recommends wholesale changes to the scope of work to be performed by licensed contractors in the State of Hawaii. The report, which has been filed with the Legislative Reference Bureau, is available here.
For general contractors, the board recommends separation into two categories -- residential and commercial. Residential general contractors will now be able to perform the scope of work they were artificially deprived of through the Supreme Court's Okada Trucking decision, but will be limited to construction of a single one to two story residence. Commercial general contractors will be limited to the same limited specialty licenses recognized by the Supreme Court in Okada Trucking, but will automatically be awarded the residential general contractor license. As the board aptly put it, before Okada Trucking, a general contractor could construct a house and paint it. After Okada Trucking, the general contractor was forced to hire a painting subcontractor to paint the house. This new classification will once again allow the general contractor to paint the hosue. However, it cannot go over 2 stories, and the contractor cannot contract with the same owner for more than one house.
These legal gyrations were necessitated by the court's decision, which had the dual effect of artificially limiting the scope of a general contractor's ability to self perform work in a manner that was at odds with industry practice that had been in place for decades, while simultaneously emboldening specialty trade representatives to seek even further restrictions in the general contractor's scope of work. As the board's report notes, Hawaii's licensing statute was originally based upon California's licensing statute. What the board does not go on to note is how, through one court decision, Hawaii law dramatically diverged.
Whatever may be the merits of the changes set forth in the board's report to the legislature, one thing is clear: enforcement of said changes will be an administrative nightmare for the already strained resources of the regulated industries complaint offices.
HART executive director Dan Grabauskas has warned that delay of a decision from the federal court of appeals could once again suspend construction on the rail project. The lawsuit filed by former governor Ben Cayetano and others, is on appeal and oral arguments were heard in San Francisco in August of last year, and the court's decision is still pending.
Pacific Business News reports that HART has plans to begin spending $127 million dollars in land acquisitions this summer, but will not do so with the outcome of the appeal still unknown. Rail construction resumed in September 2013.
The Star Advertiser reports that the construction industry will play a larger part in the expected healthy growth in the island economy over the next few years. Reporting on the comments of Jack Suyderhoud at the First Hawaiian Bank business outlook forum, the Adversiter notes: "Tourism's torrid pace will taper as the sector continues to grow, but at a more moderate pace," he said. "Construction will pick up, adding jobs."
Construction on rail could restart as early as Monday, Pacific Business News reports. Last month, the Historic Preservation Division signed off on archaeological survey for the length of the rail system. With this approval in hand, the project then received two key approvals by two Hawaii City Council committees, allowing a special management area use permit and shoreline setback variance as well as an agreement among the state Department of Transportation, HART and the city that allows the rail to be developed in sections on state property between Pearl City and Ala Moana Center. The full council could vote on these measures as early as Wednesday.
Dun Par Engineered Form Co. v. Vanum Constr. Co., 2013 Kan. App. LEXIS 75 (August 23, 2013), teaches the importance of collecting and reading subcontractor or for that matter any surety bonds supposedly procured for a construction project.
In the case, the job was a federal construction project in Fort Riley, Kansas. As it was a federal project, the general contractor obtained a Miller act bond that would afford payment protection to the sub-sub contractor level only. The general contractor likewise required its subcontractors to procure bonds for the job, and its subcontractor, Vanum Construction, did so. Had Vanum's bond followed the form of the Miller act bond procured by the general, there would be no issue. Instead, however, Vanum utilized a generic bond form used for private jobs, affording bond coverage only to entities directly contracting with Vanue, or able to place a lien within the jurisdiction.
The Kansas Court of Appeals held that because the job in question was a federal job, there were no lien rights within the jurisdiction of the actual project. Therefore, the plaintiff had no bond claim because it was not a "claimant" under the plain and unambiguous language of the bond itself.
This case teaches why it is so important to demand, read, and maintain a copy of all available surety bonds on a project. Such requests should be made up front, when relationships are still fresh and good, and styled as a pro forma ministerial function. For general contractors it is important to know this up front and make demands as necessary so that a subcontractor's bond coverage on any job at the very least mirrors that of the general's , and for subcontractors, if the bond form as in this case does not appear to provide any coverage, at least they will know and can take precautionary measures against letting payments get behind.
Hawaii's construction market appears to be back and slated for strong growth, after years of struggles in the wake of the recession. According to this report by the DLNR's workforce infonet, construction will lead the state in the rate of job expansion, but jobs are expected to enjoy healthy growth overall.
Attended a luncheon seminar put on by Thinktech Hawaii. The topic was on housing in Hawaii, and how to keep up with demand. Thinktech assembled a panel of speakers consisting of major condomomiium and home construction developers, HCDA and PRP (carpenter union) representatives, and economist Paul Brewbaker, who set the stage for the talk with a quick snapshot of where Hawaii's housing market is today, where it is going, and what needs to be done to meet demands.
According to Brewbaker, Hawaii's housing recovery is not around the corner. It is here. We are poised to experience housing demands that will very quickly outpace supply, leading to price increases that could end up in median home prices of a shocking $1,000,000 by 2018. Oahu houses are already priced at the same price they were at the peak of the last housing boom. On the cusp of Hawaii's last housing boom, Hawaii had about a year's worth of inventory on the market. Now, we have two months. Based upon current demand, the market could bear 20-30-40k in new housing. Even if all of the currently planned condominium developments come to fruition, we are looking at about 5k in additional housing. Without available housing our economy will suffer, because businesses cannot relocate or sustain themselves without available housing for talented employees.
Against this backdrop of statistics, four major developers, the HCDA, and PRP, offered their perspective on Hawaii housing and what must be done to meet the ever growing need of Hawaii's residents. The major consensus was that the only think holding up developers from building more homes was the difficulty of working in Hawaii. Construction costs, labor pools, state and county regulations, and litigation, are all potential roadblocks, sset against existing and expected demand. High-rise construction in Kakaako, within the urban core, encouraging walking communities, has long been a plan of the HCDA and it appears it may finally be coming to fruition.
In the meantime, however, Kakaako residents are not excited about planned new construction within their neighborhood. They met with lawmakers to express their concerns and see what can be done. This conflict will likely grow as more projects come online.
The bridge collapse in Washington last week has left many Hawaii residents wondering whether Hawaii's bridges are safe. This is certainly a thought that occurs to many stuck in traffic under an overpass. How safe are Hawaii's bridges?
The bridge that collapsed in Washington is now believed to have collapsed due to a truck accident that struck a critical girder keeping the bridge aloft. "We had a collision between a very heavy vehicle traveling at probably not a small amount of speed crashing into not just one but probably multiple girders, and it failed," Washington Governor Jay Inslee told an afternoon press conference in Mount Vernon.
It is possible to look up bridges on the national bridge inventory database, which is monitored by the federal highway administration. According to the database, the Washington bridge was "functionally obsolete." According to the same database:
"Functional obsolescence is a function of the geometrics of the bridge in relation to the geometrics required by current design standards. While structural deficiencies are generally the result of deterioration of the conditions of the bridge components, functional obsolescence generally results from changing traffic demands on the structure. Facilities, including bridges, are designed to conform to the design standards in place at the time they are designed. Over time, improvements are made to the design requirements. As an example, a bridge designed in the 1930s would have shoulder widths in conformance with the design standards of the 1930s, but current design standards are based on different criteria and require wider bridge shoulders to meet current safety standards. The difference between the required, current-day shoulder width and the 1930s' designed shoulder width represents a deficiency. The magnitude of these types of deficiencies determines whether a bridge is classified as functionally obsolete."
On the other hand, the I-35 bridge that collapsed in Maryland, was categorized as "structurally deficient":
"Structurally deficient bridges are not inherently unsafe. Bridges are considered structurally deficient if significant load-carrying elements are found to be in poor or worse condition due to deterioration and/or damage, or the adequacy of the waterway opening provided by the bridge is determined to be extremely insufficient to the point of causing intolerable traffic interruptions. That a bridge is deficient does not imply that it is likely to collapse or that it is unsafe. By conducting properly scheduled inspections, unsafe conditions may be identified; if the bridge is determined to be unsafe, the structure must be closed. A deficient bridge, when left open to traffic, typically requires significant maintenance and repair to remain in service and eventual rehabilitation or replacement to address deficiencies. To remain in service, structurally deficient bridges often have weight limits that restrict the gross weight of vehicles using the bridges to less than the maximum weight typically allowed by statute."
The Maryland bridge was classified as structurally deficient, and rated a "4" which includes advanced section loss, deterioration, or scour. A bridge rated a "4" is subject to "possible" increased inspection. A bridge is not subject to being shut down until it reaches a 2 which is when a bridge has "advanced deterioration of primary structural elements. Fatigue cracks in steel or shear cracks in concrete may be present or scour may have removed substructure support. Unless closely monitored, it may be necessary to close the bridge until corrective action is taken."
According to the NBI database, Hawaii has a total of 1133 bridges, 143 of which are structurally deficient, and 347 of which are functionally obsolete. This database does not provide the actual rating of Hawaii's bridges, however, which is necessary to know the whole story.
According to Hawaii's DOT, its bridges are safe. But, according to the NBI database, so was the Maryland bridge, and so was the Washington bridge. According to the DOT, it will cost upwards of $1 billion dollars to update and repair Hawaii's obsolete and deficient bridges.
Macy's Inc. announced today that a new Bloomingdales will be built at Ala Moana. Says the company:
“Ala Moana will provide an exceptional environment for the distinctive, upscale shopping experience for which Bloomingdale’s is world famous. It is a beautiful open-air shopping center that is a recognized destination not only for local customers from the Hawaiian islands, but also for visitors from the U.S. mainland, Asia and worldwide,” said Michael Gould, chairman and chief executive officer of Bloomingdale’s. “In Hawaii, we will offer global customers the unique Bloomingdale’s sense of contemporary style, as well as the attentive service that sets us apart.”
"As part of the larger statewide Hawaii Airports Modernization Program, the new facilities and improvements at Honolulu International Airport consist of a multi-year effort to transform HNL into a distinctive, functional airport, worthy of a first class visitor destination and to meet the growing needs of residents and visitors alike."
Upgrades to the HIA are badly overdue and are very good news to both locals and visitors alike.
Hawaii's legislature is considering a bill response to the Hawaii Supreme Court's rail decision holding that before construction can proceed an AIS study must be conducted for the entirety of a project even when (as in the case of rail), the construction is planned to be done in phases.
Reports of this bill imply that this would effect some kind of revolution in the way Hawaii projects are constructed, when in fact, up until the Supreme Court's decision, the law was silent on this issue and construction has been allowed with the understanding that AIS studies would be supplemented as construction necessitated. As of April 23, 2013, the bill is still proceeding, despite heated discussion on both sides of the issue.
The Supreme Court issued its opinion today on the licensing matter. Bottom line: the court remanded the case back to the licensing board for a determination of whether the jalousie removal and installation work on the protested job at issue was “incidental and supplemental” to the renovation job as a whole, in light of the cost and extent of the work.
Without identifying any specific amount or percentage that would be deemed excessive under the law, the court simply noted that whether something is incidental and supplemental must also include an analysis of the cost and scope of the incidental and supplemental work, mindful of the fact that based upon the court’s view of the legislative history on the issue, the incidental and supplemental exception was supposed to have been narrow and minor in scope.
Judges Kim and Tootoo dissented, stating the original findings of the board should not be disturbed and the court should not attempt to seize control over decisions rightly made by the experienced members of the board.
Because the court did not identify any amount or extent that would be unacceptable in its eyes, the bottom line of this decision is that it leaves the question of what is “incidental and supplemental” under a C-5 license gray at best, and likely subject to continued bid protests and litigation in the future. This also likely means more expense, which will be bad news for the construction recovery currently under way, and more delay, which will be equally bad news for the long overdue renovation and rehabilitation work needed at Hawaii's schools and other public buildings.
The ICA issued its decision on the duty to defend portion of the pending Group Builders appeal.
Bottom line on the crucial issue of whether the ICA would revisit or reexamine its decision that construction defects can never be "occurrences" and therefore cannot trigger insurance coverage:
1. The court noted its prior finding that construction defects can't be an "occurrence" triggering coverage, is not dispositive of the duty to defend question
2. At the time the trial court found a duty to defend in the underlying case, courts were split on whether construction defects could constitute an "occurrence" and therefore, there was a possibility of coverage.
3. Therefore, the trial court was correct in finding a duty to defend:
In other words, the court's ruling does not address or analyze its prior findings on what is an "occurrence" and instead goes around them to find a duty to defend based upon the law existing at the time of the denial of coverage. So, a fortiori, the court appears to be holding there is no defense coverage for denials issued post-Group Builders.
Tred will brief this case in greater detail at his insurance law blog.