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DIRECTORY AND CAPABILITIES

Congratulations to Partner Vik Nagpal on his Nomination for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!

March 27, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to share that Downtown San Diego and Encinitas Managing Partner Vik Nagpal is nominated for West Coast Casualty’s Jerrold S. Oliver Award of Excellence! Every year, West Coast Casualty recognizes an individual who is committed, trustworthy, and has contributed to the betterment of the construction defect community. The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation. Each year, members of the construction community are asked to nominate individuals who invoke the same spirit as Judge Oliver. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Texas “Loser Pays” Law May Benefit Construction Insurers

June 07, 2011 — CDJ STAFF

Under a new law, Texas HB 274, the Texas Supreme Court will be making rules for motions to dismiss and to expedite suits of less than $100,000. The law also contains two “loser pays” provisions. If a lawsuit is found dismissed for having “no basis in fact or law,” the losing side must pay attorney costs. The other provision caps award of attorney fees if plaintiffs reject settlement offers. Texas Lawyer quotes Houston attorney Mike Gallagher as saying this will affect “the practice of everyone who handles significant lawsuits.”



Gregory Marcum, whose practice includes construction defect litigation, plans to contact insurance companies, as the new law may save them money. “It will definitely be a factor in the defense strategy for handling a case.” He notes that “any insurance carrier would want that done.”



Marcum notes that the offer-of-settlement rules only apply when cases go to trial. “Almost all cases settle.”



Read HB 274



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Texas Supreme Court Holds Anadarko’s $100M Deepwater Horizon Defense Costs Are Not Subject To Joint Venture Liability Limits

February 27, 2019 — Sergio F. Oehninger & Michael S. Levine - Hunton Andrews Kurth
Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019). While the Lloyd’s of London insurers had agreed to pay Anadarko $37.5 million for damages, they declined to cover $100 million-plus in defense fees, arguing that both Anadarko’s liability and defense expenses are subject to the $37.5 million joint venture limit for “liability” insured. Anadarko asserted that only amounts paid as damages to third parties are subject to that limit. Defense costs, however, are not amounts paid as damages to a third party and, thus, are not a “liability.” Those amounts, therefore, are not subject to the joint venture limit and are instead subject to the policy’s $150 million coverage limit. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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Insurer Motion to Intervene in Underlying Case Denied

August 10, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Colorado Supreme Court determined that the insurer defending under a reservation of rights could not intervene in the underlying case after the insured assigned its rights to any bad faith claim against the insurer. Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass'n, Inc., 2021 Colo. LEXIS 365 (Colo. May 24, 2021). Bolt Factory initiated a construction defects lawsuit against various contractors. Several defendants filed third-party complaints against subcontractors, including Sierra Glass Company. Auto-Owners agreed to defend its insured, Sierra Glass, under a reservation of rights. Auto-Owners declined to settle with Bolt Factory for $1.9 million, within policy limits. Sierra Glass then retains independent counsel and entered into a settlement with Bolt Factory. The settlement allowed Sierra Glass to assign its bad faith claims to Bolt Factory in exchange for the right to pursue the insurer for payment of the excess judgment rather than Sierra Glass. Instead of entering into a stipulated judgment, Bolt Factory and Sierra Glass proceeded to an abbreviated trial. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star

July 06, 2020 — Balestreri Potocki & Holmes
The law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders Thomas A. Balestreri, Jr. and Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate Robin H. Smith has been named a 2020 Rising Star. Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list. Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success. Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas. Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims. Super Lawyers, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com. Read the court decision
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Reprinted courtesy of Balestreri Potocki & Holmes

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Few Homes Available to Reno Buyers, Plenty of Commercial Properties

January 22, 2013 — CDJ STAFF
Saying that "new home inventory does not exist," Mark Krueger of ArchCrest Commercial Partners tells the Reno Gazette Journal that this had lead to a problem, in that there are no homes for prospective buyers in the Reno and Sparks area. Adding to the problem is that investors are buying up resale homes with the intent of selling them at a profit later, which adds to the scarcity of available homes. While the residential market is suffering from not enough homes to satisfy buyers, there are ample commercial properties. As a result, there are no plans for any additional retail, office, or industrial projects in the Reno area for 2013. Vacancy rates are expected to fall only slightly to 12.3% for industrial properties and 17.7% for retail properties. Read the court decision
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FAA Plans Final Regulation on Commercial Drone Use by Mid-2016

June 17, 2015 — Rachel Adams-Heard and Alan Levin – Bloomberg
The Federal Aviation Administration intends to issue final regulations for operating small commercial drones by the middle of 2016, a top administrator told a U.S. House committee Wednesday. “The rule will be in place within the year,” FAA Deputy Administrator Michael Whitaker said at the House Oversight Committee hearing. He said, “hopefully before June 17, 2016.” While the FAA has previously said it was seeking to complete the rule as swiftly as possible, Whitaker’s comments in answering lawmakers’ questions are the most specific yet about timing. Reprinted courtesy of Rachel Adams-Heard, Bloomberg and Alan Levin, Bloomberg Read the court decision
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COVID-19 Vaccine Considerations for Employers in the Construction Industry

July 11, 2021 — Maggie Spell - ConsensusDocs
1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment? In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats. First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key. Read the court decision
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Reprinted courtesy of Maggie Spell, Jones Walker LLP
Ms. Spell may be contacted at mspell@joneswalker.com

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