Contractor Owed a Defense
November 07, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe Illinois Appellate Court reversed the lower court and found that the insured contractor was entitled to a defense for alleged construction defects. Acuity v. M/I Homes of Chicago, LLC, 2022 Ill. App. LEXIS 393 (Ill. Ct. App. Sept. 9, 2022).
The owners association (AOAO) sued M/I Homes for breach of contract and the implied warranty of habitability due to alleged defects. The AOAO alleged that the defects caused physical injury to the townhomes. There was resulting property damage such as damage to other building materials, windows and patio doors, and water damage to the interior of units. M/I Homes requested a defense from Acuity, but the request was denied.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
New Window Insulation Introduced to U.S. Market
February 04, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Construction Digital, Nitto has introduced PENJEREX, “a new transparent energy-saving window insulation film to the US Market” that may “satisfy the requirement for enhanced energy efficiency and CO2 reduction in the housing industry.”
The film is transparent, while still providing insulation, which helps maintain “the natural look of the home,” reported Construction Digital. The product “is said to improve insulation by reducing heat transfer by 35 percent.”
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Settling with Some, But Not All, of the Defendants in a Construction Defect Case
March 28, 2018 —
David Adelstein – Florida Construction Legal UpdatesConstruction defect lawsuits can be complex multi-party disputes, especially when the plaintiff is doing what is necessary to maximize recovery. This means the plaintiff may sue multiple defendants associated with the defects and damage. For example, the owner (e.g., plaintiff) may sue the contractor, subcontractors, design professionals, etc. due to the magnitude of the damages. In many instances, the plaintiff is suing multiple defendants for overlapping damages. The law prohibits a plaintiff from double-recovering for the same damages prohibiting the windfall of a plaintiff recovering twice for the same damages. Perhaps this sentiment is straight common sense, but this sentiment is a very important consideration when it comes to settling with one or more of the defendants, while potentially trying the construction defect case as to remaining defendants.
Analysis and strategy is involved when settling with some but not all of the defendants in a construction defect case (and, really, for any type of case). Time must be devoted to crafting specific language in the settlement agreements to deal with this issue. Otherwise, the settlement(s) could be
set-off from the damage awarded against the remaining defendants.
The recent decision in
Addison Construction Corp. v. Vecellio, 43 Fla.L.Weekly D625(a) (Fla. 4th DCA 2018) details the analysis and strategy required when settling with some but not all of the defendants in a construction defect case, and the concern associated with a trial court setting-off the settlement amount from the damage awarded against the remaining defendants.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Hawaii Federal District Court Denies Motion for Remand
December 21, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe federal district court refused to remand the insureds' case after the insurer removed from state court. Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2016 U.S. Dist. LEXIS 15681 (D. Haw. Nov. 10, 2016).
The underlying case was filed in state court on Maui. The underlying plaintiffs were condominium owners who brought claims against the insured, Maui Land and Pineapple Co., Inc. (MLP), and other defendants allegedly involved in the development of the project. Ryan Churchill, one of the named defendants, served as president of MLP and was on the board of the project's Association of Apartment Owners (AOAO). The underlying plaintiffs asserted claims for: breach of fiduciary duty; seeking access to books and records of the AOAO; and for injunctive/declaratory relief against MLP, Mr. Churchill, and all other defendants.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
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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An Insurance Policy Isn’t Ambiguous Just Because You Want It to Be
December 20, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to insurance contracts, there is a rule of law that states, “where interpretation is required by ambiguity in insurance contracts[,] the insured will be favored.” Pride Clean Restoration, Inc. v. Certain Underwriters at Lloyd’s of London, 46 Fla. L. Weekly D2584a (Fla. 3d DCA 2021) (citation and quotation omitted). Stated another way: ambiguities in insurance contracts will be interpreted in favor of the insured and against the insurer.
With this rule of law in mind, insureds oftentimes try to argue ambiguity even when there is not one. This was the situation in Pride Clean Construction. In this case, the property insurance policy contained a mold exclusion that stated the policy did NOT insure for “a. loss caused by mold, mildew, fungus, spores or other microorganism of any type, nature, or description including but not limited to any substance whose presence poses an actual or potential threat to human health; or b. the cost or expense of monitoring, testing, removal, encapsulation, abatement, treatment or handling of mold, mildew, fungus, spores or other microorganism as referred to in a) above.” Not only did the policy not insure for loss caused by mold, it went further to state it was NOT insuring for any mold testing or abatement.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Congratulations to San Diego Partner Alex Giannetto and Senior Associate Michael Ibach on Settling a Case 3 Weeks Into a 5-Week Trial!
April 15, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPartner Alex Giannetto and Senior Associate Michael Ibach of BWB&O’s San Diego office started a trial in San Diego set to last at least five weeks. Plaintiffs alleged causes of action of negligence, trespass and nuisance against BWB&O’s client, arguing the owner/property manager did not properly handle alleged overwatering of the front yard, allegedly resulting in a landslide impacting 8 homes on a City slope in Carlsbad. Cross-Complainant City alleged independent negligence to fix the slope it owned and controlled as well as various indemnity-based causes of action against BWB&O’s client. Plaintiffs claimed over $24 million in damages, while Cross-Complainant placed sole blame for the incident on BWB&O’s client around $6 million.
Heading into trial, it was made clear that neither Plaintiffs nor Cross-Complainant would accept anything less than 7-figures to settle BWB&O’s client out of the case. In the first week of trial, BWB&O was able to leverage motions in limine, opening statements, and cross-examinations to secure a dismissal of three of the four causes of action alleged by Plaintiff that were associated with pain & suffering. In the second week of trial, BWB&O secured a dismissal of Cross-Complainant’s negligence cause of action paving the way for a settlement with Plaintiffs. Leveraging the threat of a non-suit when Plaintiffs rested, BWB&O secured resolution of Plaintiffs’ complaint for a fraction of what had previously been sought. Finally, BWB&O was able to secure a dismissal of the remaining indemnity-based causes of action in the cross-complaint and fully extract the client from the matter.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
XL Group Pairs with America Contractor’s Insurance Group to Improve Quality of Construction
November 13, 2013 —
CDJ STAFFInsurers XL Group and America Contractor’s Insurance Group have teamed up to use “Big Data” to help their clients maintain quality in construction. “Quality is the second leading cause of subcontractor defaults, and one of the biggest areas of profit loss for a General Contractor,” said Jason LaMonica, the profit center head for XL Group’s Subcontractor Default business.
ACIG says that their methods “allow us to correlate their quality assurance programs with actual claims results.” ACIG will be adding XL Group’s data to their own, which will allow contractors to “implement best practices leading to continuous improvement in their quality assurance program.”
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