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10th Circuit relies upon article by Professor French in recent decision

UNIVERSITY PARK, Pa. – The U.S. Court of Appeals for the 10th Circuit cited and quoted a law review article by Christopher C. French, professor of practice at Penn State Law, in its Feb. 13 opinion in Black & Veatch Corp. v. Aspen Insurance (UK) Ltd (B&V v. Aspen).

Writing for the court, Judge Scott M. Matheson Jr. repeatedly cited French’s article “Revisiting Construction Defects as 'Occurrences' Under CGL Insurance Policies,” which was published in 2016 in the University of Pennsylvania Journal of Business Law.

In his article, French explores the topic of insuring construction defects as “occurrences” and the evolving case law surrounding them.  The article “contains a comprehensive, nationwide analysis and critique of state courts’ approaches and decisions on the issue” and “proposes an analytical framework in which courts can decide the issue with the theoretical and public policy concerns, such as moral hazard, the compensation of injured parties, and the enforcement of contracts in mind.”

In its B&V v. Aspen opinion, the 10th Circuit overturned a lower court’s decision and ruled that Black & Veatch can seek damages from Aspen Insurance and another insurer for damages the company incurred because of damaged equipment that a subcontractor constructed at power plants in Ohio and Indiana. The lower court had ruled that the insurers did not need to pay the Black & Veatch claim because the company’s commercial general liability insurance did not cover the expenses as “occurrences.”

The 10th Circuit, however, relying on French’s article and other authorities, ruled that the damages were “occurrences” that should be covered under the company’s insurance policy. The appeals court vacated the lower court’s decision and remanded it for further consideration in light of its opinion.

French’s scholarship on insurance for construction defects has helped shape case law around the country, including a 2013 decision from the Supreme Court of West Virginia and a 2016 decision by the Supreme Court of New Jersey, both of which cited French’s 2011 publication in the Gonzaga Law Review, “Construction Defects: Are They ‘Occurrences’?

French has written extensively in the area where insurance law intersects with contract and tort law, and he currently teaches Torts, Trial Advocacy, Remedies, and Insurance Law. He has published numerous articles in law review journals at Duke University, Georgia State University, University of Nevada, University of Pennsylvania, University of Southern California, and University of Virginia, among other law schools, and he is a co-author of Insurance Law in a Nutshell and Insurance Law and Practice: Cases, Materials & Exercises, as well as the author of numerous chapters of a two-volume insurance law treatise, Policyholder’s Guide to the Law of Insurance Coverage. Before coming to Penn State Law, French taught at the University of Pittsburgh School of Law and Villanova Law School, and was a former partner at K&L Gates LLP, where he worked as a commercial litigator.

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