Lawsuit: $3 million construction accident leads to denied insurance claim

By Nicholas Malfitano | Dec 20, 2017

PHILADELPHIA – A pair of construction companies have launched legal action versus a number of business entities related to a denied insurance claim, made after the plaintiff’s building in Philadelphia, which was seriously damaged by a sub-contractor in the course of its renovation.

PHILADELPHIA – A pair of construction companies have launched legal action versus a number of business entities related to a denied insurance claim, made after the plaintiff’s building in Philadelphia, which was seriously damaged by a sub-contractor in the course of its renovation.

Element Construction, LLC and 705-707 S. 5th Street, LLC of Wayne filed suit in the Philadelphia County Court of Common Pleas on Dec. 5 versus Brian V. Dougherty, Rick Franchi and The Lunar Agency, Inc., all of Newtown Square, Catlin Insurance Company, Inc. (doing business as “XL Catlin”) of New York, N.Y. and Jimcor Agencies (doing business as “Jimcor Select Risk”) of Montvale, N.J.

“In or about December of 2014, plaintiffs engaged the services of Dougherty and Lunar (and Franchi, by and through Lunar) to procure insurance policies for them (specifically including in a commercial policy that included builders risk coverage with respect to the property); to provide risk assessment and advice regarding appropriate coverages; to maintain existing policies; and to manage claims. In or about December 2014, Dougherty, by and through Lunar, procured and sold to plaintiffs a Commercial Inland Marine policy with builders risk coverage issued by Catlin,” the suit states.

That policy was in effect on Feb. 14, 2015, when a subcontractor working on renovation of a property located at 705-707 South 5th Street in Philadelphia, removed a window in order to load materials with a lull – in the process of doing so, the contractor hit the rear wall of the building, destabilizing the wall and causing other severe structural damage, resulting in a total loss of nearly $3 million, the suit says.

“Upon learning of the loss, [Element Construction’s Managing Member] Damon Mascieri promptly contacted Dougherty, by and through Lunar, to discuss the incident and to make sure that Dougherty put the insurance carrier (Catlin), at that time, on notice of a potential claim. Over the following eight months, Mascieri followed up with Dougherty, by and through Lunar, on multiple occasions, via telephone calls, text messages, and e-mail, to ensure that Dougherty and Lunar had notified Catlin. Mascieri’s telephone billing records show more than 15 calls to and from Dougherty during this period,” the suit adds.

However, despite repeated reminders by Mascieri, Dougherty did not make any effort whatsoever to notify Catlin until Nov. 23, 2015, the suit says. But that email in question was sent to an incorrectly typed online address and was never received by Catlin – and given that error, Catlin was not actually notified of the loss until April 14, 2016, the suit says.

“As a direct result of Dougherty’s and Franchi’s failure (by and through Lunar) to notify Catlin of the loss in a timely fashion, despite multiple requests and reminders that he do so, Catlin’s investigation of the claim was severely prejudiced and Caitlin and/or Jimcor ultimately denied the majority of the claim. Subsequently, upon information, knowledge and/or belief, on or about, in 2015, Catlin sold the subject policy to defendant, Jimcor, an insurance wholesaler purchaser of insurance policies, who currently owns the subject policy,” the complaint reads.

For counts of negligence related to professional malpractice, breach of fiduciary duty, the respondeat superior theory of liability, bad faith, breach of the insurer’s duty of good faith and breach of contract, the plaintiff is seeking damages in excess of $50,000, punitive damages, plus interest at the statutory rate, attorney’s fees and costs, and such other and further as may be deemed just and proper by the Court.

The plaintiff is represented by Mary Elizabeth Bogan of Bogan Law Group, in Philadelphia.

Philadelphia County Court of Common Pleas case 171200261

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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