Colorado Defective Construction is Not Considered "Property Damage"
September 12, 2022 —
Saxe Doernberger & Vita, P.C.In the July 5, 2022, case of Indian Harbor Ins. Co. v. Houston Casualty Co., the United States District Court for Colorado addressed the issue of whether damage to defectively installed balconies is considered “property damage” under Colorado law, requiring payment by a commercial general liability policy.
Facts of the Case
The case stems from a construction project where a subcontractor improperly installed balconies on an apartment complex. The owner of the project secured commercial general liability (CGL) coverage through an OCIP insured by Houston Casualty Company (HHC). The OCIP insured the general contractor and subcontractors. The general contractor also purchased a subcontractor default insurance policy insured by Indian Harbor.
All parties agreed that the subcontractor improperly installed portions of various balconies, including flashing, water-proof sealing, and water-resistant barriers, among other defects with the installation process. The parties also agreed that other portions of the balconies were properly installed. However, in order to repair the defects in the installations, every bit of each balcony had to be torn off and re-constructed.
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Saxe Doernberger & Vita, P.C.
Five Pointers for Enforcing a Non-Compete Agreement in Texas
June 08, 2020 —
Kristopher M. Stockberger - The Grindstone Lewis Brisbois' Labor & Employment Blog1. The Devil’s in the Details
Under Texas law, for a non-compete agreement to be enforceable, it must meet strict requirements as to timing, geography, and the type of conduct that it prohibits. While courts have enforced agreements for between one and two years, your situation could be subject to a shorter time period. If the geographical scope of the agreement is too broad or vague, that could render the agreement unenforceable. Also, the type of conduct prohibited by your agreement should be tied to the specifics of your business, because categorical barriers to other employment are often not enforced. If an employer knowingly instructs an employee to enter an overbroad non-compete agreement, the employer runs the risk of paying the employee’s attorneys’ fees.
2. Timing on the Front End
If an employee has been with an employer for years and the employer suddenly decides to have her sign a non-compete without any other meaningful change in the employee’s role, then the agreement will probably not be enforceable, unless the employee receives “consideration.” In this context, consideration is something of value, other than money or benefits, which the law deems to warrant protection by a non-compete agreement. For example, allowing an employee to learn the secret formula to Coca-Cola or to gain access to an employer’s confidential financials constitutes legally sufficient consideration given to an employee in exchange for the employee’s promises in a non-compete agreement.
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Kristopher M. Stockberger, Lewis BrisboisMr. Stockberger may be contacted at
Kris.Stockberger@lewisbrisbois.com
ASCE Statement on Devastating Tornado Damages Throughout U.S.
December 20, 2021 —
Tom Smith, Executive Director - American Society of Civil Engineers (ASCE)WASHINGTON, DC. – We are deeply saddened by the tragic tornado storms that ravaged six states across the Midwest and Southeastern portions of the U.S. last Friday evening, resulting in loss of life in five of those six states. Even though warnings were issued throughout the region, storms of this magnitude can be difficult to prepare for. Nevertheless, as civil engineers, our mission is to continually advance the design and construction of safe, reliable, and resilient building structures and infrastructure systems to mitigate the damage caused by storms.
ASCE 7 — a nationally-adopted, consensus-based engineering standard that is the primary reference of structural design requirements in all U.S. building codes — was recently updated to include a new chapter for tornado loads in the 2022 edition. The new tornado provisions in ASCE 7-22 were a result of a decade-long effort in partnership with the National Institute of Standards and Technology following the 2011 Joplin, MO Tornado. ASCE 7-22 provides updated design requirements for a variety of structures, including many of the types impacted by Friday's storms.
In an effort to assist, the Structural Engineering Institute of ASCE is currently offering free access to a report issued after the Joplin, MO tornado in 2011 that killed more than 150 people.
Joplin, Missouri, Tornado of May 22, 2011: Structural Damage Survey and Case for Tornado-Resilient Building Codes presents the observations, findings, and recommendations of an engineering reconnaissance team that surveyed residential structures and schools in the tornado path shortly after the event. The EF 5 tornado cut a seven-mile swath through Joplin, Missouri; it destroyed more than 5,000 buildings and killed more than 150 people.
We will continue to keep those who have been affected in our hearts and thoughts, and we share our heartfelt sympathies.
For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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New Jersey Supreme Court Upholds $400 Million Award for Superstorm Sandy Damages
February 22, 2021 —
Kerianne E. Kane - Saxe Doernberger & Vita In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s London,1 New Jersey’s highest court upheld an appellate decision2 finding that New Jersey Transit Corporation (“NJT”) was entitled to full coverage under its property insurance policy for damages caused by Superstorm Sandy.
In July 2012, NJT secured a multi-layered “all risks” property insurance program from eleven insurers for the policy period of July 1, 2012, to July 1, 2013. The policies covered all perils and damage to NJT’s property unless specifically excluded. The primary layer, issued by Lexington Insurance Company, provided the first $50 million of coverage. The second layer provided coverage up to $100 million, the third layer provided an additional $175 million, and the fourth layer provided coverage of $125 million, for a total of $400 million in coverage.
The excess layer insurers included Certain Underwriters At Lloyd’s, London, Torus Specialty Insurance Company, and several other carriers. All participating insurers’ policies included a standard policy form and separate endorsements, some of which were included in all policies and some of which were unique to specific insurers.
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Kerianne E. Kane, Saxe Doernberger & VitaMs. Kane may be contacted at
kkane@sdvlaw.com
Illinois Court Determines Insurer Must Defend Negligent Misrepresentation Claim
December 09, 2011 —
Tred R. Eyerly - Insurance Law HawaiiAlthough the insureds disclosed flooding problems in the basement, the buyers purchased their home. USAA Cas. Ins. Co. v. McInerney, 2011 Ill. App. LEXIS 1130 (Ill Ct. App. Oct. 31, 2011). In a supplemental disclosure, the insureds reported that during heavy rains light seepage occurred in the basement.
After moving in, the buyers experienced significant water infiltration and flooding in the basement. The buyers and their children also began to experience mold-related illnesses.
The buyers sued for rescission of the contract or, in the alternative, damages. They alleged breach of contract, fraudulent misrepresentation and negligent misrepresentation. In the claim for negligent misrepresentation, the buyers alleged that the insureds carelessly omitted the fact that there were material defects in the basement and foundation when they should have known of such defects.
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Residential Interior Decorator Was Entitled to Lien and Was Not Engaging in Unlicensed Contracting
August 04, 2021 —
David Adelstein - Florida Construction Legal UpdatesResidential construction disputes can sometimes take nasty turns. This is not attributed to one specific reason, but a variety of factors. Sometimes, there are not sophisticated contracts (or contracts at all). Sometimes, relationships and roles get blurred. Sometimes, parties try to skirt licensure requirements. Sometimes, a party is just unreasonable as to their expectations. And, sometimes, a party tries to leverage a construction lien to get what they want. In all disputes, a party would certainly be best suited to work with construction counsel that has experience navigating construction disputes.
An example of a construction dispute that took a nasty turn involving an interior decorator is SG 2901, LLC v. Complimenti, Inc., 2021 WL 2672295 (Fla. 3d DCA 2021). In this case, a condominium unit owner wanted to renovate his apartment. He hired an interior decorator to assist. As his renovation plans became more expansive, the interior decorator told him he would need to hire a licensed contractor and architect. The interior decorator arranged a meeting with those professionals and, at that meeting, they were hired by the owner and told to deal directly with the interior decorator, almost in an owner’s representative capacity since the owner traveled a lot. The interior decorator e-mailed the owner about status and requested certain authorizations, as one would expect an owner’s representative to do. At the completion of the renovation job, the owner did not pay the interior decorator because he was unhappy with certain renovations. The interior decorator recorded a construction lien and sued the owner which included a lien foreclosure claim. There was no discussion of the contracts in this case because, presumably, contracts were based on proposals, were bare-boned, or were oral.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
One Colorado Court Allows Negligence Claim by General Contractor Against Subcontractor
December 20, 2012 —
HEATHER ANDERSON , HIGGINS, HOPKINS, MCLAIN & ROSWELLJudge Paul King of the Douglas County District Court recently confirmed that subcontractors in residential construction owe an independent duty, separate and apart from any contractual duties, to act without negligence in the construction of a home in Colorado. See Order, dated September 7, 2010,
Sunoo v. Hickory Homes, Inc. et al., Case No. 2007CV1866; see also
Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983);
A.C. Excavating v. Yacht Club II Homeowners Ass’n, Inc., 114 P.3d 862 (Colo. 2005). He also verified that the holding in the
B.R.W. Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004)[1] case does not prohibit general contractors, such as Hickory Homes, from enforcing a subcontractor’s independent duty to act without negligence in the construction of a home.
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Heather Anderson, Higgins, Hopkins, McLain & Roswell, LLC.Ms. Anderson can be contacted at
anderson@hhmrlaw.com
U.S. District Court for Hawaii Again Determines Construction Defect Claims Do Not Arise From An Occurrence
August 27, 2013 —
CDJ STAFFIn a decision authored by Judge Leslie E. Koybayashi, the U.S. District Court for the District of Hawaii followed its prior decisions that construction defect claims were not covered because such claims do not arise from an occurrence. Nautilus Ins. Co. v. 3 Builders, Inc., 2013 U.S. Dist. LEXIS 88480 (D. Haw. June 24, 2013).
3 Builders, the insured, was sued by the Apartment Owners of Mililani Pinnacle for the faulty installation of a new roof. Pinnacle claimed the completed roofs were not properly installed.complaint alleged breach of contract, breach of the duty of good faith and fair dealing, negligence, and other causes of action.
3 Builders tendered the defense to Nautilus, who accepted the tender and defended for three years. Nautilus, however, filed a complaint for a declaratory judgment on its coverage obligations. Nautilus sought summary judgment, contending there was no coverage because all of the claims arose from the contractual relationship to perform the roof work, and a breach of contract was not the type of fortuitous event covered by a CGL policy under Hawaii law.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
