Coverage Denied for Faulty Blasting and Improper Fill
October 08, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe court found coverage was properly denied based on the subcontractor's failure to follow contract specifications in blasting at the job site. Westfield Ins. Co. v. Carpenter Reclamation, Inc., 2014 U.S. Dist. LEXIS 130752 (S.D. W. Va. Sept. 18, 2014).
Carpenter was hired by the Board of Education (BOE) to perform preliminary site clearing, demolition, rock excavation, and establishment of sub-grade for a building. Carpenter was to excavate to 3.5 feet below the floor subgrade so that plumbing and other utilities could be installed.
Carpenter, however, blasted to depths deeper than required, including some areas that were up to nine feet. The BOE sued, alleging over-blasting and having to pay the cost of remediating the problem, along with breach of contract issues.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Residential Construction Surges in Durham
October 30, 2013 —
CDJ STAFFThird quarter residential construction permits in Durham, North Carolina were up 72% over the third quarter of last year, for a total of 1,770 new residential units. There was a large increase in the value of the construction contracts as well, with construction contracts reaching $151.3 million, more than $42 million over the same period in 2012.
Ted Conner of the Greater Durham Chamber of Commerce said that he didn’t “think we’re going to continue to see that frenetic, high level of activity, but it’s still very active.” One reason for increased residential construction is a lack of available apartment spaces, which is also sending rents up in the area. Although much of the new construction will be middle- to upper-end, the greater availability should help all renters.
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California Supreme Court Rights the “Occurrence” Ship: Unintended Harm Resulting from Intentional Conduct Triggers Coverage Under Liability Insurance Policy
June 13, 2018 —
Scott S. Thomas - Payne & Fears Legal AlertSUMMARY
In a ruling that bodes well for policyholders, the California Supreme Court provides much-needed clarity on the question of when a so-called "intentional act" may give rise to insurance coverage under a liability insurance policy. In Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co., Case No. S23765 (Cal. June 4, 2018), the Court holds that an employer's potential liability for negligent hiring, after its employee allegedly abused a 13-year old student, is the result of an "occurrence" and is thus covered under the employer's liability insurance policy.
COURT OPINION
The court's opinion dispels the misguided notion that an intentional act resulting in unintended harm is never an "occurrence" and can never trigger coverage. What matters, according to the Court, is that, from the insured's point of view, the consequences of its conduct are "unexpected, unforeseen, or undesigned" - even if the conduct is intentional. And in a concurring opinion, Justice Liu rightfully questions the legitimacy of the notion that intentional conduct cannot trigger coverage, even when it produces an unintended result, unless, in the words of a 1989 appellate court decision, some "additional, unexpected, independent, and unforeseen happening occurs that produces the damage." As Justice Liu explains, this intervening "happening" may be something as simple as the insured's mistaken belief that he was acting in self-defense, or that the victim had consented to the insured's conduct. This much-needed clarification restores vitality to the fundamental principle that injuries are "accidental" when they are "unexpected, unforeseen, or undesigned," regardless of their cause.
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Scott S. Thomas, Payne & FearsMr. Thomas may be contacted at
sst@paynefears.com
Real Estate & Construction News Roundup (06/06/23) – Housing Woes, EV Plants and the Debate over Public Financing
July 10, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, we look at the increasing difficulty of purchasing a home, potential international fallout from a new trade deal a renewed commitment by one American automaker to electric vehicles, and more!
It’s becoming
increasingly more difficult for house hunters to find homes, specifically in certain major cities. (Khristopher J. Brooks, CBS)
Due to years of overuse and a decades-long drought, Arizona has
halted new housing construction of parts of metro Phoenix. (AP via NBC)
After several claims by the FTC over privacy concerns regarding its voice assistant Alexa and doorbell camera Ring, Amazon has
agreed to pay over $30 million in fines. (Ayana Archie, NPR)
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Pillsbury's Construction & Real Estate Law Team
Insurer's In-House Counsel's Involvement in Coverage Decision Opens Door to Discovery
January 11, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe Mississippi Supreme Court held that the insurer must produce written communications from and make available for deposition the in-house counsel who orchestrated the denial of coverage. Travelers Pro. Cas. Co. of Am. v. 100 Renaissance, LLC, 2020 Miss. LEXIS 409 (Miss. Oct. 29, 2020).
An unidentified driver struck a flagpole owned by the insured Renaissance, causing $2,134 in damages. Renaissance filed a claim with Travelers for uninsured-motorist coverage. The Travelers' claims handler, Charlene Duncan, determined there was no coverage because the flagpole was not a covered auto. Before corresponding with the insured, Duncan sought legal advice from Travelers' in-house counsel, Jim Harris.
Renaissance sued Travelers for coverage and bad faith. Renaissance then took Duncan's deposition and asked that she explain both the denial letter and the reasons Travelers denied the claim. Duncan repeatedly said she did not know the basis of the denial and that she had consulted with Harris.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Engineer TRC Fends Off Lawsuits After Merger
August 17, 2017 —
Scott Van Voorhis - Engineering News-RecordIn the wake of its merger with an investment fund, TRC Cos. has been busy swatting away pesky shareholder lawsuits driven by law firms who specialize in such litigation.
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Scott Van Voorhis, ENRENR may be contacted at
ENR.com@bnpmedia.com
Shifting the Risk of Delay by Having Float Go Your Way
July 05, 2021 —
Christopher J. Brasco & Matthew D. Baker - ConsensusDocsCritical path delay plays a central role in allocating responsibility for project delay. The interrelated concept of concurrency is also frequently determinative of entitlement on a range of claims including by owners for liquidated damages and by contractors for delay damages. What constitutes critical/concurrent delay, however, is hotly debated by scheduling experts. The lack of real consensus regarding how critical/concurrent delay should be determined and analyzed has created significant uncertainty in scheduling disputes. Indeed, courts have adopted differing and at times conflicting theories of concurrency that can produce divergent outcomes for the parties. In an effort to reduce uncertainty, stakeholders have increasingly adopted specialized contractual provisions and scheduling techniques which have significant implications for the evaluation of the companion concepts of criticality and concurrency. One such mechanism is float sequestration. Regardless of whether float sequestration is ultimately in the construction industry’s broader interest, stakeholders must be able to recognize its use and appreciate the implications for delay disputes on their projects.
Simply defined, float is the number of days an activity can be delayed before affecting the project’s critical path (i.e., the longest chain of activities which determines the project’s minimal duration). Typically, only delays affecting the critical path can produce concurrent delay. Consequently, the concept of float is integral to understanding and resolving issues of both criticality and concurrency.
Reprinted courtesy of
Christopher J. Brasco, Watt, Tieder, Hoffar & Fitzgerald, LLP and
Matthew D. Baker, Watt, Tieder, Hoffar & Fitzgerald, LLP
Mr. Brasco may be contacted at cbrasco@watttieder.com
Mr. Baker may be contacted at mbaker@watttieder.com
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Does the Russia Ukraine War Lead to a Consideration in Your Construction Contracts?
April 04, 2022 —
David Adelstein - Florida Construction Legal UpdatesMaterial costs are still affecting the construction industry. Supply chain impacts too. The volatility started with COVID-19 (and, in certain cases, before with the imposition of tariffs) and has continued through present date.
But what about the war between Russia and Ukraine and the impact this has had or may have on the supply chain? I think the spillover from the war (with oil, gas, the energy sector, etc.), including the imposition of any sanctions, is not fully realized other than the concern exists in an economy that is already battling through material costs and supply chain disruptions.
How does this affect you?
It may not.
Or you may regularly enter into construction contracts in which you would be smart to address material costs and supply chain impacts. The reason being is that everything from a risk standpoint should begin with your construction contract. Not addressing an issue does not actually mitigate the risk. Confronting the issue does mitigate the risk because you are contractually addressing a concern and know where the other party stands relating to that concern so that business decisions can be made.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com