Old Case Teaches New Tricks
March 16, 2017 —
Angela A.L. Connor & Curtis W. Martin - Peckar & Abramson, P.C.Eight years after completion of the wharf project, Zachry and the Port of Houston continue to slug
it out in the appellate courts and continue to refi ne Texas construction law along the way. In the
latest appellate opinion, the Court of Appeals details the general contractor’s control of the means
and methods of their work without interference from a governmental entity. It also supports a
subcontractor’s use of a pass-through claim as a cost efficient way to recover damages.
By now most of us are familiar with the project and the previous decisions. Zachry sued the Port
claiming breach after the Port denied Zachry the right to continue construction using its frozen
cutoff wall. The Texas Supreme Court upheld the jury’s $20 million verdict for Zachry, ruling that
the Port’s “no damages for delay” clause would not bar Zachry’s claim in light of the Port’s active
interference with Zachry’s work. The Supreme Court then sent the case back to the Court of
Appeals to consider other arguments that the Port had made.
That led to the most recent decision. In December, 2016, the Houston Fourteenth Court of Appeals
ruled in favor of Zachry on all issues and affirmed the jury verdict. In doing so, the Court of Appeals
provides several lessons or reminders on Texas Construction law.
Reprinted courtesy of
Angela A.L. Connor, Peckar & Abramson, P.C. and
Curtis W. Martin, Peckar & Abramson, P.C.
Ms. Connor may be contacted at aconnor@pecklaw.com
Mr. Martin may be contacted at cmartin@pecklaw.com
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Million-Dollar Home Sales Thrive While Low End Stumbles
May 05, 2014 —
Prashant Gopal – BloombergMillion-dollar homes in the U.S. are selling at double their historical average while middle-class property demand stumbles, showing that the housing recovery is mirroring America’s wealth divide.
Purchases costing $1 million or more rose 7.8 percent in March from a year earlier, according to data released last week by the National Association of Realtors. Transactions for $250,000 or less, which represent almost two-thirds of the market, plunged 12 percent in the period as house hunters found few available homes in that price range.
Luxury-home sales are climbing as an improving economy and stocks that have almost tripled from 2009 lows bolster confidence among affluent buyers. At the same time, slow wage growth, tight credit standards and escalating prices are putting homeownership out of reach for many Americans. While investors drain the market of lower-end properties, builders are constructing more expensive houses that generate bigger profits.
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Prashant Gopal, BloombergMr. Gopal may be contacted at
pgopal2@bloomberg.net
Building on New Risks: Construction in the Age of Greening
February 20, 2023 —
Blanca Berruguete - Construction ExecutiveFire and explosions remain the No. 1 cause of construction and engineering insurance claims, accounting for 27% of the value of insurance claims over the last five years, according to industry claims data analysis conducted by global commercial insurer AGCS.
Natural catastrophes, such as hurricanes or floods, account for almost a fifth of claims by value (19%), followed by defective products (10%). Faulty workmanship or maintenance (8%) and machinery breakdown (7%) round out the top five causes of construction and engineering losses, according to the value of claims.
The Risks and Benefits of Greening
The analysis was conducted on 22,705 insurance claims made worldwide between January 2017 and December 2021. The claims were worth approximately $13.9 billion in value and include the share of other insurers as well as AGCS. But if there is an impression that the risks remain in stasis, that is not the case.
Reprinted courtesy of
Blanca Berruguete, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Client Alert: Stipulated Judgment For Full Amount Of Underlying Claim As Security For Compromise Settlement Void As Unenforceable Penalty
March 26, 2014 —
David W. Evans, Krsto Mijanovic, and Gregory M. Smith-Haight Brown & Bonesteel LLPIn Purcell v. Schweitzer (No. D063435 - filed February 24, 2014, certified for publication March 17, 2014), the Fourth District Court of Appeal upheld an order setting aside a stipulated default judgment for the full amount of plaintiff’s claim which had been agreed to by the parties to a settlement agreement, finding that it constituted an unenforceable penalty because the amount bore no reasonable relationship to the settling party’s actual damages resulting from a breach of the settlement agreement.
In an agreement settling a breach of contract action seeking $85,000 in damages based on an unpaid debt, the plaintiff agreed to settle the claim and to accept $38,000 in 24 monthly installments, including interest on the unpaid principal at 8.5 percent. The agreement provided that payments were due on the first day of each month and to be considered “timely,” had to be received by the fifth day of each month. If any payment was not made on time, it was to be considered a breach of the entire settlement agreement, making the entire $85,000 original liability due pursuant to a stipulation for entry of judgment for such amount. The stipulation included language to the effect that the $85,000 figure accounted for the “economics” of further proceedings. The agreement also specified that the foregoing provision did not constitute an unlawful “penalty” or “forfeiture” and that defendant waived any right to an appeal and any right to contest or seek to set aside such a judgment.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
David W. Evans,
Krsto Mijanovic, and
Gregory M. Smith
Mr. Evans may be contacted at devans@hbblaw.com; Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com, and Mr. Smith may be contacted at gsmith@hbblaw.com
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Newmeyer Dillion Attorneys Named to 2022 Southern California Rising Stars List
June 13, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – June 8, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that partner
Jason Moberly Caruso and associate
Jessica Garland Daley have been selected to the 2022 Southern California Rising Stars list by Super Lawyers. Each year, no more than 2.5 percent of the lawyers in the state are selected to receive this honor. The attorneys will be recognized in the June 2022 issues of Super Lawyers Magazine, Los Angeles Magazine and Orange Coast Magazine.
Jason Moberly Caruso is a partner in the Newport Beach office. Jason's practice focuses on land use, "contaminated sites" environmental legal work, complex litigation, and appellate matters. This is the fifth consecutive year Jason has been honored.
Jessica Garland Daley is an associate in the Newport Beach office. Jessica's practice focuses on litigation in the areas of employment law and construction law. This is the first year Jessica has been selected.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Suit Limitation Provision Upheld
March 04, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe policy's one year suit limitation provision was upheld, depriving insureds of benefits under the policy. Oswald v. South Central Mut. Ins. Co., 2018 Minn. App. Unpub. LEXIS 1077 (Dec. 24, 2018).
The Oswalds' hog barn burned down on June 21, 2016. Arson was a possible cause.
The Oswalds were insured under a combination policy issued by North Star Mutual Insurance Company and South Central Mutual Insurance Company. Central provided coverage for basic perils, broad perils, and limited perils, which included fire losses. The Central policy required property claims to be brought within one year after the loss. By endorsement, the North Star policy required suits be brought within two years after the loss. Presumably, the claims was denied, although the decision does not state this.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Payne & Fears LLP Recognized by Best Lawyers in 2024 “Best Law Firms” Rankings
November 27, 2023 —
Payne & Fears LLPPayne & Fears LLP has been recognized by Best Lawyers 2024 “Best Law Firms” list. Firms included in the 2024 edition of Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers.
Payne & Fears LLP has been ranked in the following practice areas:
- Metropolitan Tier 1
- Orange County
- Commercial Litigation
- Employment Law – Management
- Insurance Law
- Labor Law – Management
- Litigation – Labor & Employment
- Litigation – Real Estate
- Metropolitan Tier 3
- Orange County
- Litigation – Intellectual Property
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Identifying and Accessing Coverage in Complex Construction Claims
September 29, 2021 —
Jeffrey J. Vita & Michael V. Pepe - Saxe Doernberger & Vita, P.C.I. Introduction
First-party, third-party, builder’s risk, professional liability, commercial general liability, wrap-ups, and additional insured status are all potential sources of insurance coverage for a large construction loss. Therefore, it is critical for construction industry participants, from owners and developers to general contractors and their subcontractors, to have a functional knowledge of the different types of insurance coverage available to them and how those coverages intersect to respond to a loss. This paper presents a brief overview of the various types of coverage available to contractors, construction managers, and owners in a large construction loss and the risks each coverage is designed to insure.
In general, there are two forms of coverage: (1) First-party liability coverage, which protects an insured’s own losses on a project during construction; and (2) Third-party liability coverage, which insures the project participants for losses that become the subject of claims or suits brought against the project participants by third parties. When a loss occurs, such as property damage, both types of coverage can be implicated. For example, if a fire burns down a building under construction, the contractor likely would incur first-party losses such as cleanup costs. The contractor may also have third-party exposure if the owner alleges that the contractor was responsible for the fire. On the other hand, when a bodily injury occurs, all losses to the contractor will be third-party losses. A broad overview of each of these policies is provided below.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita and
Michael V. Pepe, Saxe Doernberger & Vita
Mr. Vita may be contacted at JVita@sdvlaw.com
Mr. Pepe may be contacted at MPepe@sdvlaw.com
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