Housing Inventory Might be Distorted by Pocket Listings
July 23, 2014 —
Beverley BevenFlorez-CDJ STAFFNBC News reported that pocket listings, or unadvertised listings, may be hiding the true number of homes on the market. “A so-called pocket listing is when the real estate agent signs a listing agreement with a seller but does not advertise it widely or put it in a multiple listing service, where other agents and buyers can see it,” according to NBC News.
Lawrence Yun, chief economist for the Realtors, told NBC News that he believes the perceived shortage of inventory “is due to the prevalence of pocket listings in some markets."
Pocket listings aren’t illegal. There aren’t any “hard numbers” for these unadvertised listings, and so the number of actual listings is based on conjecture by realtors.
"The conditions are ripe for this kind of approach to take," Nela Richardson, chief economist at Redfin, a real estate brokerage, told NBC News. “When there is limited inventory, an agent is able to convince a seller, because there is so much demand for housing that maybe as many eyeballs don’t need to see your home as in a traditional market.”
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Force Majeure and COVID-19 in Construction Contracts – What You Need to Know
April 06, 2020 —
Brenda Radmacher & Jason Suh - Gordon & Rees Construction Law Blog“Force Majeure” – While most construction contracts contain these provisions, they are often not understood in relation to the implications they may have on construction projects. With the onset of the COVID-19 pandemic, we are all taking a closer look at many portions of our contracts. The following is a brief primer on how to understand your construction contract and its potential implications on your business in this season of change.
What is a Force Majeure?
Construction contracts usually take into consideration that the parties want to agree at the outset on who bears the risk of unforeseen incidents that may affect the project’s progression. These issues are generally handled in a “force majeure” clause. Force majeure, according to Mariam Webster’s Dictionary is a “superior or irresistible force; or an event or effect that cannot be reasonably anticipated or controlled.” To be deemed a force majeure, generally the circumstances must be outside of a party’s control which makes performance impossible, inadvisable, commercially impractical, or illegal. In addition to being unforeseeable, the circumstances must have external causation, and be unavoidable. However, the key to understanding if COVID-19 will be deemed a condition that will excuse a contractor’s performance is the specific language in the provision.
Generally force majeure events are unavoidable events such as “acts of God,” most notably weather conditions including hurricanes, tornadoes, floods, earthquakes, landslides, and wildfires, as well as certain man-made events like riots, wars, terrorism, explosions, labor strikes, and scarcity of energy supplies. However, there is not much case law or specifics on conditions similar to COVID-19.
Reprinted courtesy of
Brenda Radmacher, Gordon & Rees and
Jason Suh, Gordon & Rees
Ms. Radmacher may be contacted at bradmacher@grsm.com
Mr. Suh may be contacted at jwsuh@grsm.com
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New Illinois Supreme Court Trigger Rule for CGL Personal Injury “Offenses” Could Have Costly Consequences for Policyholders
March 09, 2020 —
Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery BlogThe Illinois Supreme Court’s recent decision in Sanders v. Illinois Union Insurance Co., 2019 IL 124565 (2019), announced the standard for triggering general liability coverage for malicious prosecution claims under Illinois law. In its decision, the court construed what appears to be a policy ambiguity against the policyholder in spite of the longstanding rule of contra proferentem, limiting coverage to policies in place at the time of the wrongful prosecution, and not the policies in effect when the final element of the tort of malicious prosecution occurred (i.e. the exoneration of the plaintiff). The net result of the court’s ruling for policyholders susceptible to such claims is that coverage for jury verdicts for malicious prosecution – awarded in today’s dollars – is limited to the coverage procured at the time of the wrongful prosecution, which may (as in this case) be decades old. Such a scenario can have costly consequences for policyholders given that the limits procured decades ago are often inadequate due to the ever-increasing awards by juries as well as inflation. Moreover, it may be difficult to locate the legacy policies and the insurers that issued such policies may no longer be solvent or even exist. A copy of the decision can be found
here.
The Sanders case arose out of the wrongful conviction of Rodell Sanders in 1994 by the City of Chicago Heights (the “City”). Mr. Sanders sought recompense for, among other things, malicious prosecution through a federal civil rights action against the City. In September 2016, Mr. Sanders obtained a consent judgment for $15 Million; however, at the time of the wrongful conviction, seventeen years earlier, the City’s only applicable insurance policy provided just $3 million in coverage. The City contributed another $2 million towards the judgment and, in exchange for Mr. Sanders’s agreement not to seek the $10 million balance from the City, assigned its rights under the policies for the 2012 to 2014 period.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Kevin V. Small, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Small may be contacted at ksmall@HuntonAK.com
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Experts Weigh In on Bilingual Best Practices for Jobsites
February 22, 2018 —
Jim Parsons – ENRIt’s the rare construction firm that doesn’t cite people as its most important resource. And over the past two decades, that asset has become increasingly bilingual. Indeed, more than 27% of workers in construction are Hispanic or of Latino ethnicity, according to the most recent available data from the U.S. Bureau of Labor Statistics (BLS).
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Jim Parsons, Engineering News-Record
Recording a Lis Pendens Is Crucial
January 04, 2023 —
David Adelstein - Florida Construction Legal UpdatesIf you are in a construction dispute where you are pursuing a construction lien foreclosure action, recording a lis pendens is crucial. Did I say crucial? “[O]ne purpose of a notice of lis pendens is to alert all others that title to the property is involved in litigation and that ‘future purchasers or encumbrancers of that property’ are at risk of being bound by an adverse judgment.” Henry v. AIM Industries, LLC, 47 Fla.L.Weekly D653b (Fla. 2d DCA 2022). There really is never a reason not to record a
lis pendens when pursing a construction lien foreclosure. Please remember that – don’t forget to record the lis pendens!
There are times a lis pendens is recorded when the lis pendens is NOT based on a duly recorded instrument (e.g., construction lien or mortgage). A
lis pendens, however, is recorded because the dispute is tied to the property in which the lis pendens is being recorded. The lis pendens is recorded to best safeguard the plaintiff’s interest in the real property without fear that the real property will be sold impacting the purpose (and, of course, security) of the lawsuit.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Insurance Measures Passed by 2015 Hawaii Legislature
June 10, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe 2015 Hawaii legislative session passed three insurance-related bills which have all been signed by the governor. Bills that have been enacted are the following:
SB0589 - We previously devoted this post to the legislation. The bill provides relief for residents in lava zones on the Big Island. The bill limits the number of property policies that an insurer can refuse to renew in a lava zone. Further, a moratorium on the issuance of policies can be lifted in a state of emergency due to the threat of imminent disaster from a lava flow.
SB0736 - Provisions relating to reimbursement for accident and health or sickness insurance benefits are amended. Further, the bill provides that prior to initiating any recoupment or offset demand efforts, an entity must send a written notice to the health care provider at least 30 days prior to engaging in recoupment or offset efforts. An entity may not initiate recoupment or offset efforts more than 18 months after the initial claim payment was received by the health care provider or health care entity.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Approaches in the Absence of a Differing Site Conditions Clause
April 10, 2019 —
Parker A. Lewton - Smith CurrieA contractor who has encountered unforeseen conditions will typically rely on the contract’s differing site conditions clause as a means to recovery. Most construction contracts address those issues directly. In ConsensusDocs Standard Agreement and General Conditions between Owner and Constructor, the starting point is § 3.16.2. But what if the contract does not contain a differing site conditions clause? Or, what if the contract does contain such a clause, but the contractor failed to provide adequate notice or satisfy other conditions or requirements of the contract? When reliance on a differing site conditions clause is impractical, a contractor still may seek recovery in certain instances under one or more of the following legal theories: misrepresentation; fraud; duty to disclose; breach of implied warranty; and mutual mistake.
Misrepresentation
Misrepresentation occurs when an owner “misleads a contractor by a negligently untrue representation of fact[.]” John Massman Contracting Co. v. United States, 23 Cl. Ct. 24, 31 (1991) (citing Morrison–Knudsen Co. v. United States, 170 Ct. Cl. 712, 718–19, 345 F.2d 535, 539 (1965)). A contractor may be able to recover extra costs incurred, under a theory of misrepresentation, if it can show that (1) the owner made an erroneous representation, (2) the erroneous representation went to a material fact, (3) the contractor honestly and reasonably relied on that representation, and (4) the contractor’s reliance on the erroneous representation was to the contractor’s detriment. See T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 728–29 (Fed. Cir. 1997). These four requirements can be satisfied, for example, through the use of deposition testimony detailing the owner’s representations and the contractor’s reliance thereon. See, e.g., C & H Commercial Contractors, Inc. v. United States, 35 Fed. Cl. 246, 256–57 (1996).
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Parker A. Lewton, Smith CurrieMr. Parker may be contacted at
palewton@smithcurrie.com
No Coverage for Subcontractor's Faulty Workmanship
November 28, 2022 —
Tred R. Eyerly - Insurance Law HawaiiFinding faulty workmanship that did not cause property damage beyond the subcontractor's work, the court found there was no coverage under the CGL policy. Middlesex Ins. Co. v. Dixie Mech., Inc., 2022 U.S. Dist. LEXIS 175190 (N. D. Ga. Sept. 27, 2022).
The case involved a construction project on Elba Island, Georgia. IHI E&C International Corporation (IHI) filed suit against Robinson Mechanical Contractors ("Robinson") for faulty construction work, including a pipe rack and process module installation. The pipe racks allegedly contained defective welds. Robinson filed a third-party complaint against Patriot Modular, Inc. (Patriot), Robinson's subcontractor, for faulty work for IHI. Finally, Patriot filed a fourth-party complaint against Dixie Mechanical, Inc. (Dixie), alleging it subcontracted with Dixie to perform fabrication, welding, testing, and inspection of pipes under Patriot's subcontract with Robinson. Patriot contended that to the extent it was found liable to Robinson for any defective work, delays or breaches of contract for Dixie's work, Patriot was entitled to recover such amounts from Dixie.
In this case, Dixie's insurer, Middlesex Insurance Company, sought a declaration that it had no duty to defend or to indemnify Dixie. Middlesex contended that the claims of faulty workmanship in the underlying complaints constituted neither an "occurrence" nor "property damage."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
