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Settlement without insurer’s consent is at builder’s expense

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The 7th Circuit Court of Appeals praised a homebuilder for its quick response and remedy to a couple’s discovery that their brand new home was full of backed-up sewage. But because Arbor Homes didn’t get the consent of the insurer regarding a settlement, the insurer has no obligation to pay for the cleanup.

Kurt and Joy Lorch purchased a home from Arbor in 2007, but shortly after moving in, they became ill. A smell in the home was caused by raw sewage being discharged into the home’s crawl space. A&M Plumbing, hired by Willmez Plumbing to perform work on the Arbor homes, failed to connect the home’s plumbing to the main sewer line.

As part of Willmez’s contract with Arbor, it agreed to take out insurance and Arbor was named as an additional insured. Subcontractors hired by Willmez were bound to the same terms as Willmez.

Arbor acted quickly and cleaned up the home, but it eventually acquiesced to the Lorches’ request that the company purchase their home and build the couple a new one. Arbor told Willmez to place its insurer West Bend Insurance Co. on notice of the Lorches’ claims, but West Bend was not informed of the proposed settlement or eventual execution until it was completed. Arbor completed the settlement on the belief that the insurer’s silence meant it had no objections.

Arbor sued Willmez, and insurer West Bend sought a declaration it had no duty to defend or indemnify Arbor, denying coverage under various theories, including that Arbor wasn’t an additional insured. It later conceded that Arbor should have been treated as such.

The District Court granted summary judgment in favor of West Bend, finding the insurer was relieved of any duty under the fungi and bacteria exclusion as well as the voluntary payments provision. In West Bend Mutual Insurance Co. v. Arbor Homes LLC, 12-2274, the 7th Circuit focused on the voluntary payments provision of the contract, which says that the insured must tell West Bend as soon as practicable of any occurrence and of any claims or lawsuits and that an insured cannot voluntarily make a payment without West Bend’s consent.

“There is no evidence that West Bend ‘consented’ to any settlement as required by the voluntary payments provision,” Judge Ilana Diamond Rovner wrote. “Although Arbor behaved admirably in expeditiously resolving the matter for the homeowners, it failed to protect its own interests when it relied on Willmez to notify West Bend about the incident, and failed to obtain West Bend’s consent for any settlement. Having no opportunity to participate in the investigation or settlement, West Bend is entitled to enforcement of the plain language of the contract: Arbor’s settlements with Willmez and with the Lorches without the consent of West Bend is at Arbor’s own expense.”

 

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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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