California Appellate Court Confirms: Additional Insureds Are First-Class Citizens
May 04, 2020 —
Scott S. Thomas - Payne & FearsMany businesses shift risk by requiring others with whom they do business – e.g., vendors, subcontractors, suppliers, and others – to procure insurance on their behalf by making the business an “additional insured” under the other person’s liability insurance policy. Unfortunately, insurance companies sometimes treat these additional insureds as second-class citizens, refusing to acknowledge that the additional insured has the same rights as the policyholder, who paid the premium. In Philadelphia Indemnity Insurance Company v. SMG Holdings, a California appellate court removes any doubt whether these additional insureds are third-party beneficiaries entitled to the same rights – and bound by the same duties – as the entity that bought the policy.
While the dispute at issue in SMG Holdings was a narrow one – i.e., whether the additional insured was bound by the policy’s arbitration clause – the implications of its holding are far ranging in ways that, in some instances, may benefit the additional insured. For example, because the additional insured is an intended beneficiary under the policy, neither the insurer nor the policyholder may do anything to impair the additional insured’s rights under the policy; if they do, they may be liable for tortiously interfering with the additional insured’s contract rights. This means that (again, by way of example) if the insurer attempts to rescind, or cancel, or amend the policy in a way that impairs the additional insured’s rights, the additional insured may have recourse. It also means that if the policyholder does something untoward that jeopardizes the additional insured’s rights under the policy, the policyholder may be liable to the additional insured for any resulting harm.
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Scott S. Thomas, Payne & FearsMr. Thomas may be contacted at
sst@paynefears.com
Michigan: Identifying and Exploiting the "Queen Exception" to No-Fault Subrogation
May 13, 2014 —
Robert M. Caplan – White and Williams LLPIn Michigan, an employee’s entitlement to compensation for injuries sustained in a motor vehicle accident is governed by both the Workers’ Disability Compensation Act of 1969, MICH. COMP. LAWS ANN. § 418.801 et seq., and Chapter 31 of The Insurance Code of 1956, MICH. COMP. LAWS ANN. § 500.3101 et seq., commonly referred to as the “no-fault act.” Polkosnik v. United Canada Ins. Co., 421 N.W.2d 241, 242 (Mich. App. 1988).
PIP1 benefits payable arising from a motor vehicle accident in Michigan include, principally, (1) medical benefits unlimited in amount and duration, and (2) 85% of lost wages for up to three years. See DEPARTMENT OF INSURANCE AND FINANCIAL SERVICES, Brief Explanation of Michigan No-Fault Insurance. As of October 2013, lost wages are capped at $5,282 per month. Id. Such benefits constitute an injured worker’s “economic loss.” See generally Wood v. Auto-Owners Ins. Co., 668 N.W.2d 353, 355 (Mich. 2003).
Michigan’s no-fault legislation is no different than other no-fault legislation in regard to its purpose: The automobile insurer pays without any right of reimbursement out of any third party tort recovery. Sibley v. Detroit Auto. Inter-Ins. Exch., 427 N.W.2d 528, 530 (Mich. 1988). Moreover, just like in New York, for example, “where benefits are provided from other sources pursuant to state or federal law, the amount paid by the other source reduces the automobile insurer’s responsibility.” Id. at 530.
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Robert M. Caplan, White and Williams LLPMr. Caplan may be contacted at
caplanr@whiteandwilliams.com
Smart Contracts Poised to Impact the Future of Construction
November 12, 2019 —
Frederick D. Cruz and Seth Wamelink - Construction ExecutiveIn August 2018, the State of Ohio passed legislation making it easier for businesses in Ohio, including the construction industry, to use blockchain technology in business transactions, which can result in significant savings and increased efficiency if used correctly. Specifically, Senate Bill 220 amends the Uniform Electronic Transactions Act (Ohio Rev. Code. 1306.01, et seq.) and ensures that records (or signatures) secured through blockchain are legally binding. With the enactment of this bill, Ohio has joined several other states to allow their businesses to take advantage of this budding technology. While the implications of this enactment are widespread, the use of “smart contracts” utilizing blockchain technology is particularly helpful in the construction industry to streamline certain processes and increase efficiency.
What is Blockchain?
While blockchain technology is most commonly associated with cryptocurrency (e.g., Bitcoin), the technology has far greater applications as it can be used to “eliminate the middle-man” in a variety of transactions across a broad spectrum of industries. At its core, blockchain is a decentralized ledger that allows transacting parties to interact directly (i.e., peer-to-peer) in a secure manner. Essentially, the blockchain “ledger” is where users record transactions. These transactions are then verified, viewed, and shared with others in the network. The information is stored across a peer network and allows for approved users to view the data simultaneously. It is often analogized to using GoogleDocs, where multiple people can access and edit the same document simultaneously. While that is an easy comparison, blockchain itself is a bit more complex.
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Frederick D. Cruz & Seth Wamelink, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Cruz may be contacted at frederick.cruz@tuckerellis.com
Mr. Wamelink may be contacted at seth.wamelink@tuckerellis.com
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Higgins, Hopkins, McLain & Roswell Recognized in 2024 Best Law Firm® Rankings
November 16, 2023 —
David M. McLain – Colorado Construction Litigation BlogWe are thrilled to announce that Higgins, Hopkins, McLain & Roswell, LLC (“HHMR”) has been recognized in the 2024 Best Law Firm® rankings. Our firm has been placed in Metro Tier 2 in Colorado for Construction Law, a testament to our unwavering commitment to providing top-tier legal services.
At HHMR, we pride ourselves on our expertise in construction law and the litigation of construction-related claims. Our team of dedicated attorneys is well-versed and experienced in tort, contract, property, and general casualty litigation. This recognition by Best Lawyers affirms our dedication to serving our clients selflessly and to the best of our ability.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Safety, Technology Combine to Change the Construction Conversation
September 30, 2019 —
Neil Riddle & Brent Burger - Construction ExecutiveNew technologies are redefining how to plan, build and deliver the full spectrum of construction projects. Automation, software and new processes are changing the construction industry in unprecedented ways, and construction management is evolving along with it. Construction companies are adapting—using innovative tools and resources, joined by more aggressive risk management and decision-making methods. All the while, safety remains at the heart of every successful new build.
Envisioning the Modern Job Site
Productivity has increased by leaps and bounds as processes have gotten faster and cheaper. Twenty years ago, the industry looked completely different— a $500 million project would have taken four years to deliver; today, it can be done in 29 months.
These new projects are becoming incredibly complex as new technologies change the size and scope, giving rise to more specialization and fragmentation. Building projects faster with fewer people requires a whole new level of preparation. This is where advanced planning and advanced work packaging can play a big role—by informing exactly how the material is going to arrive, how it will be staged, how it will be fabricated and how the area can be best managed to deliver the work.
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Neil Riddle & Brent Burger, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Riddle may be contacted at RiddleRN@bv.com
Mr. Burger may be contacted at BurgerBB@bv.com
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Avoid L&I Violations by Following Appropriate Safety Procedures
November 07, 2022 —
Reeya Patel - Ahlers Cressman & Sleight PLLCDepartment of Labor and Industries of the State of Washington v. Roof Doctor, Inc. d/b/a Roof Doctors, Inc. of Tacoma (Unpublished opinion)
Roof Doctor, a company engaging maintenance of roofs, was hired to complete work for a commercial building in Tacoma in February 2018. During the job, Roof Doctor was cited for two violations by a Washington State Department of Labor and Industries’ (L&I) compliance inspector and seven additional asbestos violations. Each citation was rated with a probability of 1 – 3 to determine the likelihood of injury, illness, or disease. The ratings allowed issuance of an appropriate monetary penalty.
The disputes among the parties on appeal were as follows:
First, L&I and Roof Doctor disputed the asbestos probability ratings and calculated penalties. L&I produced as evidence, the fact that nine employees were physically hanging roofing material with asbestos, but none had training or knew that the material contained asbestos. L&I did agree that that most of the employees were experienced in handling roofing material and knew of the dangers that asbestos presented. Roof Doctor explained that because the employees were working outdoors, the danger of asbestos exposure was mitigated due to a low probability that a high concentration of asbestos could be inhaled by the employees when outdoors.
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Ahlers Cressman & Sleight PLLC
Hawaii Federal District Rejects Another Construction Defect Claim
November 30, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe Federal District Court, District of Hawaii, continued it long line of cases finding no coverage for claims of faulty workmanship. Nautilus Ins. Co. v. Summary Judgment RMB Enters., 2020 U.S. Dist. LEXIS 200468 (D. Haw. Oct. 28, 2020).
Property owners entered a construction contract with RMB Enterprises to develop and construct residential structures and a pond. The pond walls enclosed residential spaces, providing structural foundations for the walls of the building. After completion of the project, the pond leaked into its pump room. RMB performed remedial work by injecting epoxy into cracks. Later, water from the pondleaked into the interior of a residence near a staircase. Water also leaked into the master bedroom area causing musty odor, mood growth, and increased humidity.
The owners sued RMB asserting breach of contract, breach of warranty, misrepresentation, and negligence claims. Nautilus denied coverage. The policy provided that faulty workmanship did not constitute an "occurrence." But when faulty workmanship caused property damage to property other than "your work," then such property damage would be considered caused by an occurrence.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Elyria, Ohio, to Invest $250M to Halt Illegal Sewage into Black River
December 18, 2022 —
Jim Parsons - Engineering News-RecordElyria, Ohio, will invest nearly $250 million in capital improvement projects over the next 20 years to eliminate longstanding discharges of untreated sewage into the Black River, 10 miles upstream from Lake Erie. The plan is part of a consent decree negotiated with federal and state regulators following more than 1,000 illegal discharges from the city's sewer system into the river or its tributaries since 2011.
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Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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