Insurer's Attempt to Strike Experts in Collapse Case Fails
February 03, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's efforts to exclude two of the insured's experts in a collapse case were unsuccessful. Hudon Specialty Ins. Co. v. Talex Enterprises, LLC, 2019 U.S. Dist. LEXIS 150148 (S.D. Miss. Sept. 4, 2019).
The insureds' building collapsed. The remaining portions of the building required immediate stabilization. The insureds hired Mr. Laird, an engineer, to prevent further property destruction. The insured designated Mr. Laird as a non-retained expert for trial. Mr. Laird's report claimed that the collapse was caused because the building had been re-roofed many times without removal of the degraded underlying roofing materials, thereby adding additional weight to the roof structure.
The insureds also designated Steve Cox as a non-retained expert. Mr. Cox was an architect who owned property neighboring the building that collapsed. He opined that the building collapsed because of the condition of very old mortar and not because of water standing on the building roof or because of roof repairs.
Hudson sought to strike these two experts because their opinions were inconsistent with the admitted facts. A document produced by the insureds stated that a large amount of rainwater had collected on the roof and the weight of the rainfall was the proximate cause of the collapse. Hudson claimed that this statement qualified as a judicial admission, removing the question of causation from contention. The court disagreed that the statement was a judicial admission because it did not form any part of the pleadings. The statement may have been an evidentiary admission that could be controverted or explained by the parties.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Assembly Bill 1701 Contemplates Broader Duty to Subcontractor’s Employees by General Contractor
August 17, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & BargerAB 1701 recently passed the Assembly and is pending in the Senate’s Labor and
Industrial Relations and Judiciary Committees. The Bill, if signed by the Governor, would
create a new section in the California Labor Code (Section 218.7) making “direct contractors” –
defined as a contractor “making or taking a contract in the state for the erection, construction,
alteration, or repair of a building, structure, or other private work” – liable for wages a
subcontractor or sub-subcontractor fails to pay to its employee for work included in the general
contractor’s contract with the project owner.
Under the new law, direct contractors would be liable for up to one year from the date of
completion of the work for unpaid wages, fringe benefits, health and welfare benefits, and
pension fund contributions, including interest and state tax payments owed to a subcontractor’s
employee. The employee, however, would not be able to recover penalties or liquidated
damages from the general contractor.
AB 1701 would give the employee, Labor Commissioner, or a joint labor-management
cooperation committee the right to enforce the direct contractor’s liability through a civil action.
It would also extend to third parties who are owed fringe or other benefit payments or
contributions on the employee’s behalf. Pursuant to the proposed language of the new statute, a
prevailing plaintiff in such an action would be entitled to their reasonable attorneys’ fees and
costs, including expert witness fees.
Although Labor Code § 218.7 would impose certain obligations on the subcontractor to
provide the direct contractor with relevant project and payroll records, the subcontractor’s failure
to comply with those obligations does not relieve the direct contractor from liability.
Impact
AB 1701’s apparent purpose is to protect employees, an undeniably important legislative
goal. However, if passed, the bill could greatly increase general contractors’ exposure when
subcontracting work and their cost of doing business. Especially because the new law would not
impact existing laws requiring a direct contractor to timely pay a subcontractor.
As a result, many coalitions against AB 1701 stress the halting effect this could have on
the construction industry as a whole, particularly private construction, which is not as heavily
regulated as public works.
CGDRB will continue to monitor this Bill and provide updates as developments occur.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Insurer's Summary Judgment Motion on Business Risk Exclusions Fails
November 15, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer unsuccessfully moved for summary judgment on the CGL policy's business risk exclusions. Scottsdale Ins. Co. v. TL Spreader, LLC, (W.D. La. Oct. 20, 2017).
Helena Chemical Company contracted with its customer Wild Farms to sell and apply certain herbicides and pesticides to Wild Farms' 123 acre rice filed. Helena subcontracted the TL Spreader, LLC (TLS) to apply the chemicals to Wild Farm's rice field. The TLS employee failed to properly neutralize a chemical being used in the spray.
TLS finished its work on May 6, 2014, completing all its work for Helena's contract with Wild Farms. Three days after completion of the spraying, the rice crop first began to exhibit physical damage in the form of abnormal stunting, lesions, yellowing and death.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
NYC Design Firm Executives Plead Guilty in Pay-to-Play Scheme
June 18, 2019 —
Engineering News-RecordTwo former top executives of New York City-based engineer HAKS pleaded guilty in city court May 13 to bribe charges related to efforts to gain municipal water infrastructure contracts, according to court filings, an attorney for its ex-chief financial officer and plea agreements provided to ENR by the Manhattan district attorney's office.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony
March 15, 2021 —
Melissa Kenney - The Subrogation SpecialistMany subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702.
Brace, involved a fire at a vacation cabin in McCall, Idaho. The cabin, owned by Maria Elosu (Elosu) and Robert Brace (Brace and collectively with Elosu, Plaintiffs) was part of a homeowner’s association called Middlefork Ranch, Incorporated (MFR). The cabin had a “wrap around” deck with a propane-fired refrigerator on the north side. On the day before the fire, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Plaintiffs used rags to clean up excess oil from the deck and an MFR employee changed the propane on the refrigerator and relit the pilot light. At 4:00 p.m., a fire started in or around the cabin while no one was home. The fire was discovered by a group of contractors who testified that the fire was isolated to the east side of the cabin when they first arrived. Importantly, one witness testified that there was no fire and no flames around the propane-fired refrigerator. The fire destroyed the cabin and the contents within.
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Melissa Kenney, White and Williams LLPMs. Kenney may be contacted at
kenneyme@whiteandwilliams.com
Liebherr Claims Crane Not Cause of Brazil Stadium Construction Accident
February 14, 2014 —
Beverley BevenFlorez-CDJ STAFFCrane manufacturer Liebherr said in a statement that “its crane was not the cause” of the November 2013 construction incident that killed two workers, according to KHL. Liebherr claimed that “its investigations show that the crane had no technical defects and that the ground was not sufficiently stable for crane travel with a suspended load on the day of the accident.”
Liebherr “assumes that all the reports currently being prepared about the accident will not reach any different conclusions,” reported KHL.
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Construction Defect or Just Punch List?
December 11, 2013 —
CDJ STAFFA couple in Dickinson, North Dakota have put big, green “buyer beware” signs on their home. They’re not planning on selling, but just trying to warn prospective neighbors of the problems they’ve had since moving into their new home. Andrea Thermes said her problems included leaking windows and uneven floors. “I absolutely love my house,” she said. “If we didn’t have the issues, I would be the happiest girl in the world.”
One problem was a leaking picture window in her living room. The builder replaced it, but the first window that arrived was the wrong size. The new home is still under a warranty and the builder has been fixing issues as they arise. “They are upset with some of the problems they have had,” said William Henry, president of B-Dev, the builder of the home. Since Ms. Thermes’s window wasn’t repaired in time for Thanksgiving, Mr. Henry sent wine and beer to her home. “Not that that makes up for not having their window, but we’re trying to make this work and trying to appease them,” he said.
But Mr. Henry said that some of the problems “are not really material defects,” characterizing them as “punch-list and warranty items.”
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Haight Brown & Bonesteel Attorneys Named Super Lawyers in 2016
February 16, 2016 —
Haight Brown & Bonesteel LLPHaight is pleased to announce that the following lawyers have been named 2016 California Super Lawyers ®:
William G. Baumgaertner
Bruce Cleeland
Peter A. Dubrawski
Angela S. Haskins
Michael J. Leahy
Michael C. Parme
Jennifer K. Saunders
Additionally, Gregory M. Smith has been named a 2016 Super Lawyers ® Rising Star. Super Lawyers ® is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
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Haight Brown & Bonesteel LLP