Production of Pre-Denial Claim File Compelled
November 30, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court found that the claims file that existed before the insurer's denial was discoverable. Cascade Builders Corp. v. Rugar, 2017 N.Y. App. Div. LEXIS 7357 (N.Y. App. Div.. Oct. 19, 2017).
Cascade Builders was the general contractor for the homeowners. In May 2011, Cascade subcontracted with John Rugar to perform certain exterior power washing on the residence. The contract between Cascade and Rugar required Rugar to indemnify and hold Cascade harmless for any work performed by Rugar and to obtain coverage naming Cascade as an additional insured. Rugar procured the required CGL policy from Utica First Insurance Company.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Limiting Liability: Three Clauses to Consider in your Next Construction Contract
June 25, 2019 —
Tara Lynch - Gordon & Rees Construction Law BlogIn your next contract, consider including some (or all!) of the following clauses to limit your liability and maximize your profits.
Waiver of Consequential Damages
While a proven breach of contract will leave a design professional or contractor exposed to direct or compensatory damages, a waiver of consequential damages will help “stop the bleeding” and protect the design professional or contractor from paying every damage that might flow from the breach. Consequential damages include those damages which indirectly flow from the breach of contract, for example, lost rents, lost profits, lost use, lost opportunity, loss of employee productivity, and damages to reputation.
The American Institute of Architects (AIA) has included a mutual waiver of consequential damages in its sample A201 for over 20 years. The AIA provision includes a definition of consequential damages which are waived, including many of the examples cited above. However, the AIA waiver of consequential damages clause carves out an exception for liquidated damages to the owner. Prudent design professionals and contractors will strike this exception so as not to render the clause meaningless. A well-drafted waiver clause will be mutual, will define which damages are consequential versus direct, and will not contain exceptions.
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Tara Lynch - Gordon & Rees Scully MansukhaniMs. Lynch may be contacted at
tlynch@grsm.com
The ABCs of PFAS: What You Need to Know About Liabilities for the “Forever Chemical”
February 22, 2021 —
Robert F. Walsh, Gregory S. Capps & R. Victoria Fuller - Complex Insurance Coverage ReporterThis article is based on a presentation the authors made at White and Williams LLP’s Virtual Coverage College® on October 22, 2020. Every year, hundreds of insurance professionals come to Philadelphia—this year via our online platform—to participate in a full day of lectures and interactive presentations by White and Williams lawyers and guest panelists about the latest issues and challenges involved in claim handling and insurance litigation. Visit coveragecollege.com for more information and stay tuned for Coverage College® 2021.
Perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as PFAS or PFOS, have been a key ingredient in numerous industrial and consumer products for decades. These man-made chemicals are prevalent and are also known for their longevity in the environment. More recently, PFAS have been the focus of thousands of lawsuits alleging personal injury and property damage. Some insurers have already questioned whether PFAS could rival asbestos in scope and bottom-line impacts. It is a legacy that confronts manufacturers and other defendants and insurers today.
This article provides a primer on PFAS, including the current regulatory framework and litigation landscape. We also identify some key emerging coverage issues insurers should be aware of when dealing with PFAS claims under liability and first-party property policies.
Reprinted courtesy of
Robert F. Walsh, White and Williams LLP and
Gregory S. Capps, White and Williams LLP
Mr. Walsh may be contacted at walshr@whiteandwilliams.com
Mr. Capps may be contacted at cappsg@whiteandwilliams.com
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Senate Bill 15-091 Passes Out of the Senate State, Veterans & Military Affairs Committee
March 19, 2015 —
David M. McClain – Colorado Construction LitigationAs previously reported, Senator Scott's SB 91, as originally introduced, would have reduced Colorado's statute of repose for construction defect actions from eight years to four years. Yesterday, the Senate State, Veterans & Military Affairs Committee heard Senate Bill 91 and, before passing the bill on a party line vote sending it back to the full Senate for consideration, made two substantive amendments. By one amendment, the Committee excluded any multi-family developments. The second amendment was to reduce the statute of repose from six years, currently on the books, to five years plus one more if the defect becomes manifest in the fifth year.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
What To Do When the Government is Slow to Decide a Claim?
October 02, 2015 —
Craig Martin – Construction Contractor AdvisorYou may know this situation all too well. You’ve submitted your certified claim to the contracting officer and there it sits. You ask for a decision and they say soon, but it’s not soon. And pretty soon, several months have gone by. Since the Court of Federal Claims’ decision in Rudolph and Sletten, Inc. v. U.S., the government may have to decide in 60 days or your claim will be deemed denied which would allow you to file your claim in the Court of Federal Claims.
Background
Rudolph and Sletten (R&S) were awarded a contract to construct the La Jolla Laboratory. On August 20, 2013, R&S submitted a certified claim seeking $26,809,003 as compensation for costs due to alleged government-caused delays and disruption, additional consultant costs and extra work.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Jason Smith and Teddie Arnold Co-Author Updated “United States – Construction” Chapter in 2024 Legal 500: Country Comparative Guides
May 28, 2024 —
Jason Smith & Edward (Teddie) Arnold - The Construction SeytJason Smith and
Teddie Arnold, partners in Seyfarth’s Washington, DC office, have co-authored an updated “United States – Construction” chapter in the 2024 edition of The Legal 500: Country Comparative Guides. Seyfarth continues to participate as an exclusive contributor for this comprehensive overview of construction-specific laws and regulations in the United States. Topics covered include, but are not limited to, requirements and obligations, permits and licencing, procurement, financing and security, and disputes, as well as insight and opinion on current challenges and opportunities. To access and download a copy of the chapter, click
here.
Reprinted courtesy of
Jason N. Smith, Seyfarth and
Edward V. Arnold, Seyfarth
Mr. Smith may be contacted at jnsmith@seyfarth.com
Mr. Arnold may be contacted at earnold@seyfarth.com
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The Partial Building Collapse of the 12-Story Florida Condo
June 28, 2021 —
Beverley BevenFlorez – CDJ StaffOn Thursday, the Champlain Towers South Condo building in Surfside, Florida suffered a partial collapse. As of Monday morning, the official death toll stood at 10 with 151 persons unaccounted for, according to the Miami Herald.
NPR uncovered minutes from a November 15th, 2018 Chaplain Tower South Condominium Association board meeting where the inspector made assurances that “the building was ‘in very good shape.’” However, “an
engineering report from five weeks earlier” alleged “that failed waterproofing in a concrete structural slab needed to be replaced ‘in the near future.’” Daniella Levine Cava, the Miami-Dade County mayor, told reporters that “officials ‘knew nothing’ about the report.”
The New York Times on Sunday reported that experts looking at video footage of the incident believe that the cause is centered on a location “in the lowest part of the condominium complex — possibly in or below the underground parking garage — where an initial failure could have set off a structural avalanche.” The cause of the incident remains unclear, however. This “progressive collapse” could have been caused by a number of different factors “including design flaws or the less robust construction allowed under the building codes of four decades ago.”
A witness, according to the New York Times, saw a hole appear near the pool: “Michael Stratton said his wife, Cassie Stratton, who is missing, was on the phone with him and was looking out through the window of her fourth-floor unit when, she told him, the hole appeared. After that, the call cut off.”
Possible reasons for the “initial failure at the bottom of the building could include a problem with the deep, reinforced concrete pilings on which the building sits — perhaps set off by an unknown void or a sinkhole below — which then compromised the lower columns. Or the steel reinforcing the columns in the parking garage or first few floors could have been so corroded that they somehow gave way on their own. Or the building itself could have been poorly designed, built with substandard concrete or steel — or simply with insufficient steel at critical points.”
"It will take many months to complete the analysis necessary to understand the cause or causes of the collapse,” Eric Ruzicka, a partner at the international law firm Dorsey & Whitney and a commercial litigator who specializes in the area of construction and real estate litigation, stated in a media release. “Often, information that comes out early can be very misleading or misunderstood unless the full context of the information is known.”
Ruzicka explained that Florida’s statues of limitations and repose may be relevant. “These statutes will likely eliminate the liability of those involved in the original development, design and construction of the building. Rather, victims and their families' recovery will be limited to those involved in the building's maintenance and those assessing the condition of the building over the past four years.”
Miami and Sunny Isles Beach have announced they will audit older structures in their communities “ahead of the mandatory 40-year recertification,” the Miami Herald reported.
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Indemnification Provisions Do Not Create Reciprocal Attorney’s Fees Provisions
November 21, 2018 —
CDJ STAFFIn a good, recent decision, the Eleventh Circuit in International Fidelity Insurance Co. v. Americabe-Moriarity, JV, 2018 WL 5306683 (11th Cir. 2018), held that Florida Statute s. 57.105(7) cannot be used to shift attorney’s fees in a contractual indemnification clause in a dispute between a general contractor and subcontractor’s performance bond surety, when the dispute does not involve an actual indemnification claim stemming from a third-party.
In this case, a prime contractor terminated a subcontractor and looked to the subcontractor’s performance bond surety to pay for the completion work. The subcontractor had a standard AIA A312 performance bond that requires the prime contractor to comply with the terms of the bond, as well as the incorporated subcontract, in order to trigger the surety’s obligations under the bond. The surety filed an action for declaratory relief against the prime contractor arguing that the prime contractor breached the terms of the performance bond through non-compliance thereby discharging the surety’s obligations. The trial court agreed and the surety moved for attorney’s fees.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
