Claim for Vandalism Loss Survives Motion to Dismiss
October 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe court ruled that the insured's claim for vandalism of his house by a renter and for bad faith survived the insurer's motion to dismiss. Wehrenberg v. Metro. Prop. & Cas. Ins. Co., 2015 U.S. Dist. LEXIS 103758 (W.D. Pa. Aug. 7, 2015).
The insured's home was insured by a homeowner's policy issued by Metropolitan. The insured rented his home to Alphonso Hyman in October 2011. In lieu of rent, Hyman was to pay the mortgage company the equivalent of his rent each month.
In early 2012, Hyman stopped making the monthly rent/mortgage payments. The insured went to the home and found the locks had been changed. Looking in the windows, he saw the interior had been gutted. When the insured reached Hyman, Hyman said he was a contractor and was fixing the structural problems and would put the house back together. He also promised to make up late payments to the mortgage company. The insured did not report what he found to Metropolitan.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
#9 CDJ Topic: Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al.
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFDavid M. McClain of
Higgins, Hopkins, McLain & Roswell, LLC reported on the Colorado Court of Appeals ruling in the above mentioned case regarding the Vallagio condominiums developed by Metro Inverness, LLC. McClain concluded, “As a builder, the moral of the story here is that you need not rely on the Colorado Legislature to protect your ability to arbitrate construction defect claims asserted against you by homeowners associations. All you need to do is to include within your declaration a valid and enforceable declarant consent provision requiring your consent to amend out of the declaration the arbitration requirement for construction defect claims.”
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Government Claims Act Does Not Apply to Actions Solely Seeking Declaratory Relief and Not Monetary Relief
March 25, 2024 —
Garret Murai - California Construction Law BlogPerhaps it should come as no surprise, but public entities get special treatment under the law, and when filing a claim against a public entity, in most cases, a claimant is required to file a claim with the public entity before filing suit under the Government Claims Act (Gov. Code §810 et seq.).
But, as the next case demonstrates, that’s not always the case. In Stronghold Engineering Incorporated v. City of Monterey, 96 Cal.App.5th 1203 (2023), the 6th District Court of Appeals examined whether a public works contractor that alleged an extended overhead claim was required to file a Government Claims Act claim before filing suit when its initial complaint was limited to a claim for declaratory relief.
The Stronghold Case
In December 2015, general contractor Stronghold Engineering Incorporated entered into a construction contract with the City of Monterey for the renovation of the City’s conference center and an adjacent city-owned plaza. The construction contract provided that any modification to the construction contract had to be approved by the City through a written change order. No surprise there.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Does a Broker Forfeit His or Her Commission for Technical Non-Compliance with Department of Real Estate Statutory Requirements?
September 14, 2020 —
Kevin J. Parker - Snell & Wilmer Real Estate Litigation BlogIn a recent Arizona Court of Appeals case, CK Revocable Trust v. My Home Group Real Estate LLC, 2020 WL 4306183 (7/28/2020), the Court of Appeals addressed the distinction between “substantive” and “technical” statutory requirements for real estate broker commission agreements.
The Court explained that failure to comply with a substantive requirement would preclude the broker from recovering a commission, but failure to comply with a technical requirement would not. As examples of such substantive requirements, the Court identified the statutory requirement that the broker be licensed at the time the claim for commission arose, and the statutory requirement that the listing agreement be signed by both the broker and the client.
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Kevin J. Parker, Snell & WilmerMr. Parker may be contacted at
kparker@swlaw.com
From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens
August 03, 2020 —
Lori S. Smith - White and WilliamsA little over a year ago, I wrote a blog post about the danger of relying on precedent. Now, more than ever, clients and their advisors need to revisit contract forms on which they may have been relying for years. While many of us have lived through times that required certain adjustments in how we viewed contractual obligations — recessions, wars, oil embargoes, natural disasters, 9/11 — none of these events had the widespread and long-lasting impact that the current COVID-19 pandemic is having. None of these events shut down the U.S. economy and impacted global supply chains across every industry in the manner we are now experiencing.
With this in mind, there is a need to figure out what the “new normal” will look like for contract negotiations in a post-pandemic world. Business professionals need to now anticipate more widespread disruption than we could have ever before imagined. It isn’t just force majeure clauses or material adverse effect provisions, as these will likely add pandemics and government shutdowns to their ever-growing list of contemplated risks, if they were not already expressly covered. And it is not clear, at least in the near-term, whether a resurgence or mutation of COVID-19 or the emergence of another virus can truly be seen as unforeseeable in a post-COVID world. The issues are much more fundamental to the approach that parties may take in negotiating contracts. Commercial contracts between purchasers, vendors, distributors, licensors and licensees will need to evaluate allocation of risk from both sides and come to a new happy medium that all can live with in an ever-evolving world. While parties should review their standard contracts in their entirety, some key provisions to think about include:
- Length of the contract and exclusivity. Depending on which side you are on, you may want to reconsider a long-term arrangement that ties your company to a particular vendor or distributor. Supply chain disruption can have a seriously detrimental impact on your business. Are requirements contracts where a particular supplier is required to make available all of your needs for a certain good or service really the best arrangement for your business? What about take or pay arrangements where you are obligated to which are common in certain industries pay a minimum amount or a penalty to a supplier whether or not you actually purchase the contemplated volume of goods ? Do you really want to be tied up in an exclusive arrangement, or do you need flexibility to maintain secondary or tertiary sources of supply? Do you want to provide a licensee with an exclusive right to your technology (even within a limited field of use or industry sector)?
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Lori S. Smith, White and WilliamsMs. Smith may be contacted at
smithl@whiteandwilliams.com
White and Williams Earns Tier 1 Rankings from U.S. News "Best Law Firms" 2020
December 22, 2019 —
White and Williams LLPWhite and Williams has achieved national recognition from U.S. News and World Report as a "Best Law Firm" in the practice areas of Insurance Law and Media Law. Our Boston, New York and Philadelphia offices have also been recognized in their respective metropolitan regions in several practice areas. Firms included in the “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal experience.
National Tier 1
Insurance Law
National Tier 3
Media Law
Metropolitan Tier 1
Boston
Product Liability Litigation – Defendants
Delaware
Product Liability Litigation – Defendants
New Jersey
Labor Law – Management
Philadelphia
Commercial Litigation
Insurance Law
Medical Malpractice Law – Defendants
Personal Injury Litigation – Defendants
Personal Injury Litigation – Plaintiffs
Metropolitan Tier 2
Boston
Insurance Law
Delaware
Medical Malpractice Law – Defendants
New Jersey
Employment Law - Management
Litigation - Labor & Employment
Philadelphia
Bet-the-Company Litigation
Legal Malpractice Law – Defendants
Media Law
Real Estate Law
Tax Law
Trusts & Estates Law
Metropolitan Tier 3
New York City
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
Philadelphia
Appellate Practice
Construction Law
First Amendment Law
Litigation – Construction
Litigation – Labor & Employment
Patent Law
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White and Williams LLP
Governor Signs AB5 Into Law — Reshaping California's Independent Contractor Classification Landscape
December 02, 2019 —
Eric C. Sohlgren & Matthew C. Lewis - Payne & Fears Legal AlertToday, Governor Gavin Newsom signed California Assembly Bill 5 (“AB5”), controversial legislation which will have a substantial impact on California employers when it goes into effect on January 1, 2020.
AB5 enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Under the ABC test established in Dynamex and now under AB5, a worker may be properly considered an independent contractor only if the hiring entity establishes all three of the following: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Reprinted courtesy of
Eric C. Sohlgren, Payne & Fears and
Matthew C. Lewis, Payne & Fears
Mr. Sohlgren may be contacted at ecs@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
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Finding Plaintiff Intentionally Spoliated Evidence, the Northern District of Indiana Imposes Sanction
March 14, 2018 —
Shannon M. Warren – The Subrogation Strategist On January 23, 2018, the Northern District of Indiana issued a decision that clarifies what constitutes spoliation of evidence under Indiana law. In
Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 U.S. Dist. LEXIS 10141 (N.D. Ind.), the defendant filed a motion for sanctions, alleging that the plaintiff intentionally spoliated critical evidence. The defendant sought dismissal of the action, asserting that the plaintiff intentionally discarded and lost important physical evidence within hours of a fire that occurred while the defendant’s employees were performing work at its facility. The decision underscores the importance of taking immediate action to properly identify and secure potentially material evidence in order to satisfy ones duty to preserve pre-suit evidence and avoid any spoliation defenses and associated sanctions.
In
Arcelormittal, the court initially considered whether to apply state or federal law when analyzing a litigant’s duty to preserve pre-suit evidence and determine if that party committed spoliation. Since the case was brought in federal court based on diversity jurisdiction, the court held that Indiana state law governed the spoliation analysis.
As noted by the court, under Indiana state law, “the intentional destruction, mutilation, altercation, or concealment of evidence” is considered to be spoliation. Thus, under Indiana law, a party who knew or should have known that litigation was imminent “may not lose, destroy or suppress material facts or evidence.” The plaintiff argued that Indiana law requires a showing of improper purpose or bad faith to establish that a litigant spoliated evidence. The
Arcelormittal court rejected the plaintiff’s argument.
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Shannon M. Warren, White and Williams LLPMs. Warren may be contacted at
warrens@whiteandwilliams.com