Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Indemnity Provision Prevails Over "Other Insurance" Clause
December 06, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe Second Circuit predicted that the New York appellate courts would find the contractual indemnity provision prevailed over the application of an "other insurance" provisions. Cent. Sur. Co. v. Metro. Transit Auth., 2021 U.S. App. LEXIS 29860 (2nd Cir. Oct. 5,2021).
Long Island Railroad (LIRR) contracted with general contractor Rukh Enterprises, Inc. to complete a railroad bridge lead paint removal and repainting project on Metropolitan Transit Authority property. Rukh hired subcontractor, East Coast Painting & Maintenance to complete certain lead-related work on the project.
An employee of East Coast suffered an injury while working on the project. The employee sued LIRR and Rukh. A settlement in the underlying case was reached, implicating three of four policies - Admiral (primary for LIRR), Arch (CGL for Rukh), and Harleysville (primary for East Coast). Century Surety (excess liability for Rukh) did not contribute to the settlement and disclaimed all coverage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Illinois Court Assesses Factual Nature of Term “Reside” in Determining Duty to Defend
October 30, 2023 —
James M. Eastham - Traub LiebermanIn State Farm Fire & Cas. Co. v. Guevara, 2023 IL App (1st) 221425-U, P2, the Illinois First District Court of Appeals addressed an insurance carrier’s duty to defend under a homeowners insurance policy. The underlying suit stemmed from an alleged injury suffered at a residence located in Berwyn, Illinois and owned by named insured Luz Melina Guevara, a defendant in the suit. After Guevara tendered the suit, State Farm filed a complaint for declaratory judgment seeking a declaration that it had no duty to defend or indemnify Guevara because Guevara did not “reside” at the insured premises.
The policy defined the "insured location" as the "residence premises," and residence premises was defined as "the one, two, three or four-family dwelling, other structures, and grounds or that part of any other building; where you reside and which is shown in the Declarations." In response to the underlying lawsuit, Guevara had filed an answer and affirmative defenses in which Guevara denied the allegation that "At all relevant times, [Guevara] resided in Berwyn, Cook County, Illinois." Guevara admitted that she owned the Berwyn property but denied that she "resided in, maintained and controlled the property". The declaratory judgment complaint alleged (among other things) that, based on admissions by Guevara in her answer, the Berwyn residence was not an "insured location" under the State Farm policy. State Farm moved for summary judgment at the trial court level on this ground and summary judgment was granted in State Farm’s favor. An appeal ensued wherein the parties disagreed as to whether there is a genuine issue of material fact that, under the language of the policy, State Farm had no duty to defend because the Berwyn property was not an "insured location" because she did not "reside" there.
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James M. Eastham, Traub LiebermanMr. Eastham may be contacted at
jeastham@tlsslaw.com
The Pandemic, Proposed Federal Privacy Regulation and the CCPA
November 02, 2020 —
Heather Whitehead - Newmeyer DillionThe U.S. Senate Committee on Commerce, Science and Transportation met recently to discuss considerations for implementing federal privacy laws. Not surprisingly, the main impetus to reevaluate a federal framework is the ongoing COVID-19 pandemic with the greatly increased reliance on online working and school arrangements, as well as the need to share personal information for contact tracing and other efforts to weaken the pandemic.
While federal regulation of personal information has been proposed in the past, there are a few key issues that still remain unresolved. One is enforcement of the regulations. The issue is whether enforcement should be handled by the Federal Trade Commission or if the establishment of a new federal authority is needed to enforce privacy requirement violations. Other key outstanding issues include pre-emption of state rights and whether any regulations should include a private right of action.
Given that the California Consumer Privacy Act of 2018 (CCPA) is the most stringent state regulation addressing data privacy in the United States, California Attorney General Xavier Becerra participated as a witness in the recent Senate Hearing. He shared his opinions as to both federal pre-emption and the need for a private right of action. He recommended that the committee preclude federal regulation from pre-empting state laws, including the CCPA. He noted that individual states are in a better position to adapt and keep up with technological innovation, and that some states have also already implemented thorough privacy protections, such as Mississippi and Washington. With respect to the private right of action, he admitted his office can only do so much to enforce these regulations amongst California’s huge population of businesses and residents. His belief is that individual consumers need the ability to pursue their own remedies in court.
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Heather Whitehead, Newmeyer DillionMs. Whitehead may be contacted at
heather.whitehead@ndlf.com
Building Down in November, Even While Home Sales Rise
January 17, 2013 —
CDJ STAFFThe Chicago Sun-Times reports that construction saw a small decline in November, the first since the spring. Happily, though this was the first dip in eight months, construction spending dropped only 0.3 percent, compared to October. The Sun-Times noted that the level of construction is well below what is considered healthy for the economy, while still being above the low of February 2011.
While fewer homes (and other buildings) were built, sales of new homes were up 4.4 percent in November. Home purchases were at their highest rate in more than two years.
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CSLB Joint Venture Licenses – Providing Contractors With The Means To Expand Their Businesses
April 28, 2016 —
David A. Harris – Haight Brown & Bonesteel LLPCalifornia’s Business and Professions Code requires contractors to be licensed by the Contractors State License Board (“CSLB”). The CSLB issues licenses in 44 different classifications which are separated into three categories: “A” licenses are for general engineering contractors, “B” licenses are for general building contractors, and “C” licenses are specialty licenses that cover everything from installing boilers to installing ornamental metal.
Performing construction work without a license or without the requisite license is a misdemeanor and can lead to the imposition of fines and in certain instances, jail time. (California’s Business and Professions Code Section 7028(a).) While potential imprisonment is unlikely, contractors are frequently fined, or prohibited from filing suit to collect money for their work. Perhaps most onerous, a contractor who is unlicensed, or working with a suspended license or the wrong license, can be forced to return all of the money it was paid for its work. (See our alert:Performing Work with a Suspended CSLB License Costs Big: Subcontractor Faces $18,000,000 Disgorgement.)
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David A. Harris, Haight Brown & Bonesteel LLPMr. Harris may be contacted at
dharris@hbblaw.com
Aurora Joins other Colorado Cities by Adding a Construction Defect Ordinance
September 03, 2015 —
Beverley BevenFlorez-CDJ STAFFAccording to the Aurora Sentinel, the city council of Aurora, Colorado, approved an ordinance targeted at making it more difficult for homeowners to sue builders over construction defect claims.
Similar to other recent Colorado city construction defect measures, “the new rule gives builders the right to repair defects before the litigation is pursued, requires that the majority of home owners in a home owners association – as opposed to just a majority of HOA board members – approve of any lawsuits, and allows builders to offer monetary settlements to homeowners in lieu of repairs.”
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Deference Given To Procuring Public Agency Regarding Material Deviation
April 10, 2019 —
David Adelstein - Florida Construction Legal UpdatesDeference will be given to a procuring public agency in a bid protest, particularly when the issue involves whether a bid is non-responsive and constitutes a material deviation from the solicitation. You do not believe me? Perhaps you will after this holding in Biscayne Marine Partners, LLC v. City of Miami, Florida, 44 Fla.L.Weekly D467a (Fla. 3d DCA 2019):
Consequently, no principle of law is clearly established…as to any obligation of the trial court (and, by analogy, an administrative hearing officer) [in a bid protest] to decide or to defer [whether a bid constitutes a material deviation from the solicitation]. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct.
I do not know about you, but that last underlined sentence is pretty strong language regarding judicial deference!
In this case, Miami (the procuring public agency) issued a Request for Proposals (RFP) for the redevelopment and lease of waterfront property, for the operation of a marina, boatyard, restaurant, wet slips, and a dry storage facility on the property. Miami issued five addenda to the RFP. There were three bidders.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
