Beverly Hills Voters Reject Plan for Enclave's Tallest Building
November 10, 2016 —
James Nash – BloombergA costly battle over development in Beverly Hills, California, ended with voters rejecting a hotel owner’s proposal to combine two planned condominium towers into a single building that would have loomed over the wealthy Southern California enclave.
With 44 percent in support and 56 percent against, Beverly Hills voters turned down plans by Beny Alagem, who owns the Beverly Hilton and is building an adjacent 170-room Waldorf Astoria, to develop a single 26-story tower next to the hotels, instead of eight- and 18-story buildings that were approved by the city council and a voter referendum in 2008. Alagem’s plan sets aside the remaining 1.7 acres (0.7 hectares) for a public park and gardens.
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James Nash, Bloomberg
Virtual Jury Trials of Construction Disputes: The Necessary Union of Both Sides of the Brain
May 17, 2021 —
John Dannecker - Construction ExecutiveBart Smith is the Senior Project Manager for Simply Best, a general contracting firm. He has been assigned to serve as the liaison with outside counsel in a lawsuit against Holly’s Harleys, a project owner who contracted with Best for the construction of a motorcycle showroom. Best filed suit in federal court for additional project costs it incurred, which it contends were caused by the specification of incompatible materials by Holly’s design firm.
The coronavirus pandemic is still raging as the trial date approaches. Courthouse facilities are closed so civil trials are conducted using remote technology, if they occur at all. Bart negotiated the prime contract with Holly’s, and he regrettably allowed Best’s binding arbitration and jury trial waiver clauses in the prime contract to be deleted. Bart worries about how the intricacies of Best’s case can be adequately explained to a jury in a remote trial. His concern approaches panic when Best’s trial counsel explains how the trial will be conducted with none of the parties—their attorneys, the judge, the witnesses or the jury—present in the same location.
Reprinted courtesy of
John Dannecker, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Pennsylvania Commonwealth Court Holds that Nearly All Project Labor Agreements are Illegal
February 18, 2019 —
Wally Zimolong - Supplemental ConditionsIn what is nothing short of a monumental decision, on January 11, 2019, the Pennsylvania Commonwealth Court in Allan Myers L.P. v. Department of Transportation ruled that nearly all project labor agreements in Pennsylvania are illegal under the Commonwealth’s procurement code.
What are Project Labor Agreements?
In short, Project Labor Agreements (PLAs) are pre-hire agreements that set the working conditions for all employees of contractors working on a construction project. Typically, a PLA is entered into between an public or private construction project owner and certain local building trade unions. PLAs require the use of union labor that is to be hired exclusively through the hiring halls of the unions who are parties to the PLA. PLAs are controversial because, among other reasons, while not expressly excluding non-union contractors from performing work on the project, they require non-union firms to use union members instead of their regular employees.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Mortgagors Seek Coverage Under Mortgagee's Policy
July 19, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe mortgagor homeowners survived a motion to dismiss their claim for coverageunder the lender's property policy after their home suffered hurricane damage. Gary v. Am. Sec. Ins. Co., 2021 U.S. Dist. LEXIS 100010 (W.D. La. May 26, 2021).
Plaintiffs' home was mortgaged by Pennymac Loan Services, LLC. Pennymac held a property policy with American Security to insure its interest in the home. Plaintiffs were not named as insureds or additional insureds under the policy. Plaintiffs were identified as the borrowers under the policy on the Declarations page.
After hurricane damage to their home, plaintiffs sued American Security for coverage for the losses. American Security moved to dismiss, arguing plaintiffs were neither additional insureds nor third party beneficiaries. Lender-placed policies were designed to insure the lender's collateral whenever the borrower failed to maintain adequate insurance. The Loss Payment provisions in the policy stated that "Loss will be made payable to the named insured [Pennymac]. No coverage will be available to any mortgagee other than that shown as the named insured on the Declarations."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Repair Cost Exceeding Actual Cash Value Does Not Establish “Total Loss” Under Fire Insurance Policy
June 05, 2017 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn California FAIR Plan Assn. v. Garnes (No. A143190, filed 5/26/17), a California appeals court ruled that “total loss” under Insurance Code section 2051 refers to physical damage or loss, not the economic fact that the cost of repair exceeds the actual cash value of a home. Thus, where the home is not physically destroyed, the insured is entitled to the actual cost of repair, minus depreciation, even if that amount exceeds the fair market value of the home.
In Garnes, the insured had a fire policy issued by the California FAIR Plan with limits of $425,000. It was agreed that the assessed value of the insured home was only $75,000. The insured suffered a kitchen fire with estimated repair costs of $320,000. The FAIR Plan declared the home a total loss because the cost of repair exceeded the home’s value, and offered to pay the actual cash value as provided by Insurance Code section 2051(b)(1).
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Insurer Must Pay for Matching Siding of Insured's Buildings
December 02, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Seventh Circuit found that the insurer was obligated to pay for siding of a building that was not damaged by hail so that it matched the replaced damaged portions of the siding. Windridge of Naperville Condominium Association v. Philadelphia Indem. Ins. Co., 2019 U.S. App. 23607 (7th Cir. Aug. 7, 2019).
A hail and wind storm damaged buildings owned by Windridge. The storm physically damaged the aluminum siding on the buildings' sought and west sides. Philadelphia Indemnity, Windridge's insurer, contended that it was only required to replace the siding on those sides. Windridge argued that replacement siding that matched the undamaged north and east elevations was no longer available, so Philadelphia had to replace the siding on all four sides of the buildings to that all of the siding matched.
Windridge sued and moved for summary judgment. The district court ruled that matching was required. The only sensible result was to treat the damage as having occurred to the building's siding as a whole.
The policy was a replacement-cost policy. Philadelphia promised to "pay for direct physical 'loss' to 'Covered Property' caused by or resulting from" the storm, with the amount of loss being "the cost to replace the lost or damaged property with other property . . . of comparable material and quality . . . and . . . used for the same purpose." The loss payment provision offered four different measures for loss, leaving Philadelphia free to choose the least expensive: (1) pay the value of the lost or damaged property; (2) pay the cost of repairing or replacing the lost or damaged property; (3) take all or any part of the property at an agreed or appraised value; or (4) repair, rebuild or replace the property with other property of like kind and quality.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Contractor Sues Construction Defect Claimants for Defamation
June 28, 2013 —
CDJ STAFFAndrew Smith and Armando Delgado both own condos in the Willowbrook condominium complex in East Manatee, Florida, and they’ve both been dealing with structural problems with their homes. Now they’re together in another matter as the contractor who has been hired to do the repairs has sued them for defamation. The homeowners claim that the construction company is trying to intimidate them.
KB Homes, which built the Willowbrook complex, hired Dueall Construction to repair the buildings. Anthony Robbins, one of the owners of Dueall, is currently on probation for cocaine trafficking. Smith put this information on a website associated with complaints about KB Homes, while Delgado put a banner on the back of his pickup truck. The lawsuit claims that Smith and Delgado “have initiated a campaign to smear and defame Dueall and its owners.”
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Be Mindful Accepting Payment When Amounts Owed Are In Dispute
August 29, 2022 —
Nicholas Korst - Ahlers Cressman & Sleight PLLCAfter completing work on a project, or even during a project, it is not uncommon for some portion of the contract balance and/or a claim to be in dispute. As a contractor or subcontractor, it is important to be careful what is signed (or not signed) upon receipt of any payment both during and after completion of work on a project. One of the most common documents signed related to a receipt of payment is a lien/claim release document. This can be in the form of a conditional, unconditional, progress and/or final release. The language included in the release document is critically important, especially as it pertains to disputed amounts. As a contractor or subcontractor, if there are known disputes related to amounts owing, whether it be contract balance, disputed change order(s), a delay or inefficiency claim, or any other amounts believed to be owed, it is important to include language in the lien release that expressly carves out the disputed amounts. The same should be done for disputes related to extensions of time. This allows the contractor to accept the payment and release rights for the undisputed work, but continue to reserve its right to pursue the amounts in dispute later. If disputed amounts are not carved out, those amounts may effectively be waived and the subcontractor or contractor may lose all rights to recovery.
As a subcontractor in Alaska recently learned, there are potentially other ways a contractor may waive or lose its rights to recover amounts in dispute – without even signing a waiver or release document. In Smallwood Creek, Inc. v. Build Alaska General Contracting, LLC et al., the general contractor sent the subcontractor a check described as “final payment.” The subcontractor believed it was owed more than what the general contractor had sent and refused to accept the check. Months later, the subcontractor deposited the check. The subcontractor reversed course again and attempted to repay the general contractor the amount deposited. The general contractor refused, claiming the subcontractor’s acceptance of payment constituted satisfaction of all amounts owing to the subcontractor.
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Nicholas Korst, Ahlers Cressman & Sleight PLLCMr. Korst may be contacted at
nicholas.korst@acslawyers.com