New Jersey Strengthens the Structural Integrity of Its Residential Builds
March 11, 2024 —
Matthew D. Stockwell - Gravel2Gavel Construction & Real Estate Law BlogIn response to the June 2021 Champlain Towers collapse in Florida, New Jersey supplemented its State Uniform Construction Code Act by enacting legislation (effective January 8, 2024) to strengthen laws related to the structural integrity of certain residential structures in the State. The legislation applies to condominiums and cooperatives (but not single-family dwellings or primarily rental buildings) with structural components made of steel, reinforced concrete, heavy timber or a combination of such materials. The legislation also supplements the Planned Real Estate Development Full Disclosure Act to ensure that associations created under the Act maintain adequate reserve funds for certain repairs.
The legislation requires structural engineering inspections of any primary load-bearing system (structural components applying force to the building which deliver force to the ground including any connected balconies). Buildings that are constructed after the date the legislation was signed must have their first inspection within 15 years after receiving a Certificate of Occupancy. Buildings that are 15 years or older must be inspected within two years of the legislation. Thereafter, the structural inspector will determine when the next inspection should take place, which will be no more than 10 years after the preceding inspection, except for buildings more than 20 years old which must be inspected every five years. Also, if damage to the primary load-bearing system is otherwise observable, an inspection must be performed within 60 days.
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Matthew D. Stockwell, PillsburyMr. Stockwell may be contacted at
matthew.stockwell@pillsburylaw.com
National Lobbying Firm Opens Colorado Office, Strengthening Construction Defect Efforts
January 05, 2017 —
Beverley BevenFlorez-CDJ STAFFMichael Best Strategies, a national law and lobbying firm, has recently opened an office in Colorado. According to the Denver Business Journal, the firm “has recruited several big-name associates — a move that could give business leaders even more clout with the Legislature on issues such as construction-defects reform.”
One of the firm’s recruits, Jeff Thormodsgaard, the lead lobbyist in the recent movement to make it harder to sue condominium builders, told the Denver Business Journal, “The only change [in the construction-defects reform effort] is that we’re going to be adding more feet and more boots on the ground and more gravitas.”
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Hirer Liable for Injury to Subcontractor’s Employee Due to Failure to Act, Not Just Affirmative Acts, Holds Court of Appeal
December 11, 2018 —
Garret Murai - California Construction Law BlogThe Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides that a higher-tiered party such as an owner or general contractor is not liable for injuries sustained by employees of a lower-tiered party such as a subcontractor on a construction project. There are, however, exceptions to the Privette doctrine. One of these exceptions is known as the “retained control doctrine.”
Under the retained control doctrine, a higher-tiered party cannot avoid liability under the Privette doctrine if the higher-tiered party: (1) retains control over the conditions of the work; (2) negligently exercises control over such conditions; and (3) its negligent exercise of control contributes to the injuries sustained by the employee of the lower-tiered party.
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
No Duty to Defend Faulty Workmanship Under Hawaii Law, but All is not Lost for Insured Contractor
June 06, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found no duty to defend claims of faulty workmanship under certain policies issued to the insured contractor, but rejected arguments made by the Insurers regarding various provisions of the general liability and excess policies. St. Paul Fire & Marine Ins. Co. v. Bodell Consr. Co., 2022 U.S. Dist. LEXZIS 79379 (D. Haw. May 2, 2022). (Note- our office represents the insured contractor).
In 2003, Bodell was hired by developer Sunstone Realty Partners L LLC to be the general contractor for construction work on a condominium project, "Ali`i Cove." The project consisted of approximately 37 buildings and one recreation center that were constructed over the course of four years. On August 14, 2015, the AOAO of Ali`i Cove sued Sunstone, alleging that Sunstone developed, built, and sold condominium nits using embedded straps that did not meet building codes, instead of bolting house frames to their foundations. The AOAO filed a second amended complaint alleging numerous additional defects which were referenced in an expert report. These included additional alleged construction defects such as site conditions, structural issues, building envelope, roofing, general architecture, mechanical, plumbing and electrical. In all, the report purported to find approximately 281 instances of faulty workmanship.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Claims Made Insurance Policies
November 04, 2019 —
David Adelstein - Florida Construction Legal Updates“Claims-made policies are common in the professional liability insurance market. They “differ from traditional ‘occurrence’-based policies primarily based upon the scope of the risk against which they insure.” With claims-made policies, coverage is provided only where the act giving rise to coverage “is discovered and brought to the attention of the insurance company during the period of the policy.” In contrast, coverage is provided under an occurrence-based policy if the act giving rise to coverage “occurred during the period of the policy, regardless of the date a claim is actually made against the insured.” “The essence, then, of a claims-made policy is notice to the carrier within the policy period.”
Crowely Maritime Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2019 WL 3294003 (11thCir. 2019)
The recent Eleventh Circuit Court of Appeal opinion in Crowely Maritime Corp. discussed the distinction between a claims-made insurance policy and an occurrence-based insurance policy. Professional liability policies are generally claims-made policies whereas commercial general liability policies are generally occurrence-based policies. While this opinion does not involve a construction matter, the case did concern the definition of a “claim” in a claims-made policy and whether such claim was timely reported to the insurer within the discovery period / extended reporting period.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Crisis Averted! Pennsylvania Supreme Court Joins Other Courts in Finding that Covid-19 Presents No Physical Loss or Damage for Businesses
October 21, 2024 —
Edward M. Koch & Marc L. Penchansky - White and Williams LLPSeeking to find some relief from business losses experienced during the COVID-19 pandemic, many businesses turned to their property insurers for coverage for their lost income. A clear national trend emerged among courts deciding the issue, as most businesses could not establish coverage because they had not experienced a “direct physical loss of or damage to their covered property” as required by most policies.
While this legal question may have become an afterthought for many attorneys, the question remained an open one in Pennsylvania while the Pennsylvania Supreme Court considered two contradictory holdings issued in the Superior Court on this topic. Compare Macmiles, LLC v. Erie Ins. Exch., 286 A.3d 331 (Pa. Super. 2022) (holding there was no coverage for loss of use of a commercial property unaccompanied by any physical alteration or other physical condition that rendered the property unusable or uninhabitable) with Ungarean v. CNA, 286 A.3d 353 (Pa. Super. 2022) (holding that the policy at issue was ambiguous and therefore the policy covered the insured for COVID-related business losses). Last week, the Supreme Court considered the Superior Court’s holdings in Macmiles and Ungarean and held, at long last, that COVID-19 did not cause a direct physical loss of or damage to covered property.
Reprinted courtesy of
Edward M. Koch, White and Williams LLP and
Marc L. Penchansky, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com
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Massachusetts Judge Holds That Insurer Breached Its Duty To Defend Lawsuit After Chemical Spill
October 16, 2018 —
Lawrence J. Bracken, II & Alexander D. Russo - Hunton Insurance Recovery BlogA District Court Judge for the District of Massachusetts recently ruled that Ace Property and Casualty Insurance Co. breached its duty to defend its insured in a lawsuit brought by Plaistow Project, LLC, after a family owned laundromat leaked chemicals onto Plaistow Project’s property. Plaistow Project, LLC v. ACE Prop. & Cas. Ins. Co., No. 16-CV-11385-IT, 2018 WL 4357480, (D. Mass. Sept. 13, 2018). Plaistow Project sued State Line Laundry Services in state court, and ACE denied coverage under the pollution exclusion in State Line Laundry’s insurance policy. Plaistow Project then settled with State Line Laundry. Under the settlement terms, Plaistow Project was assigned State Line Laundry’s rights against ACE.
In the subsequent coverage litigation, Plaistow Project alleged that ACE had breached its duty to defend State Line Laundry under its insurance policy. ACE argued that (1) the burden was on the policyholder to demonstrate that the policy’s “sudden and accidental” exception applied to the policy’s pollution exclusion; and (2) the policyholder could not show the “sudden and accidental” exception applied based on the complaint.
Reprinted courtesy of
Lawrence J. Bracken, II, Hunton Andrews Kurth and
Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken, may be contacted at lbracken@HuntonAK.com
Mr. Russo may be contacted at arusso@HuntonAK.com
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Proposed Law Protecting Tenants Amended: AB 828 Updated
June 08, 2020 —
Rhonda Kreger – Newmeyer DillionOn May 18, 2020, AB 828 was amended and is currently on its second reading in the Senate Rules Committee. This legislation proposes a temporary moratorium on foreclosures and unlawful detainers while Governor Newsom's COVID-19 emergency order is in effect. In addition to the moratorium, AB 828 also required landlords to reduce rent by 25% under certain circumstances. AB 828 was amended to remove the provision that required landlords to reduce rent by 25% for 12 months. The new provision requires landlords to allow tenant to remain in possession, and requires tenants to start paying rent the month following the end of the emergency order. Tenants must timely pay monthly rent plus 10% of any rent due and owing when the emergency order ended.
Under AB 828, a tenant may stipulate to the entry of an order in response to a residential unlawful detainer action filed by the landlord. Upon a hearing, the court determines if the tenant's inability to pay rent is the result of increased expenses or a reduction in income due to COVID-19. The court must also make a determination that there is no material economic hardship for the landlord. Upon making such determinations, the court will issue an order that permits the tenant to remain in possession, and requires tenant to commence rental payments the month following the end of the COVID-19 emergency order. Tenant's payment would include the monthly rent plus 10% of an unpaid rent during the COVID-19 emergency order, but excludes any late charges or other fees or charges. The tenant would be required to make timely payments, and if tenant fails to do so, after a 48 hour notice from landlord, the landlord can file for an immediate writ of possession in favor of the landlord and money judgment for any unpaid balance, court costs and attorneys' fees.
Newmeyer Dillion continues to follow COVID-19 and its impact on your business and our communities. Feel free to reach out to us at NDcovid19response@ndlf.com or visit us at www.newmeyerdillion.com/covid-19-multidisciplinary-task-force/.
Rhonda Kreger is Senior Counsel on Newmeyer Dillion's transactional team at our Newport Beach office. Her practice focuses on all aspects of commercial real estate law, with a particular emphasis on the representation of residential developers, merchant builders and institutional investors. You can reach Rhonda at rhonda.kreger@ndlf.com.
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