Steven Cvitanovic Recognized in JD Supra's 2017 Readers' Choice Awards
April 05, 2017 —
Steven M. Cvitanovic - Haight Brown & Bonesteel LLPJD Supra named Partner Steven Cvitanovic among the Top 10 Authors in the construction industry in its 2017 Readers’ Choice Awards, which recognizes the excellence and achievement of firms and authors who published their substantive work on JD Supra in 2016.
JD Supra editors chose the 25 industries and topics covered in these awards for their timeliness as well as their proven, ongoing importance. In each category, one firm and ten authors were recognized for consistently achieving the highest readership and engagement for all of 2016.
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Steven M. Cvitanovic, Haight Brown & Bonesteel LLPMr. Cvitanovic may be contacted at
scvitanovic@hbblaw.com
July Sees Big Drop in Home Sales
August 27, 2013 —
CDJ STAFFThe Commerce Department reported a 13.9 percent drop in sale of new homes for July. Over the course of the last 12 months, home sales had risen 7 percent. According to economists, an annual rate of about 700,000 homes would be a sign of a healthy economy. The July sales fell well short of that, at an annual rate of 394,000. New home starts were also down.
Experts attribute the decline in sales and building to increases in mortgage rates, even though the rates remain historically low. Despite the slump in home sales in July, builder confidence rose to a high in August.
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Prospective Additional Insureds May Be Obligated to Arbitrate Coverage Disputes
September 07, 2020 —
Danielle S. Ward - Balestreri Potocki & HolmesThe Court of Appeal closed out 2019 by ruling that an additional insured can be bound to the arbitration clause in a policy when a coverage dispute arises between that additional insured and the carrier. (Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal. App. 5th 834, 837.)
In 2009, Future Farmers of America (“Future Farmers”) entered into a license agreement with SMG Holdings Incorporated (“SMG”) to use the Fresno Convention Center. As part of the agreement, Future Farmers was required to secure comprehensive general liability (“CGL”) coverage and name SMG and the City of Fresno as additional insureds (“AI”) on its policies.
Future Farmers purchased a general liability policy from Plaintiff Philadelphia Indemnity Insurance Company (“Philadelphia”). Neither SMG nor the City of Fresno were added as AIs, but the policy contained a “deluxe endorsement” which extended coverage to lessors of premises for “liability arising out of the ownership, maintenance or use of that part of the premises leased or rented” to the named insured. The policy also contained an endorsement that extended coverage where required by a written contract for liability due to the negligence of the named insured. Philadelphia’s policy also stated that if the insurance company and insured “do not agree whether coverage is provided . . . for a claim made against the insured, then either party may make a written demand for arbitration.”
A patron to Future Farmer’s event at the Fresno Convention Center was seriously injured after he tripped over a pothole in the parking lot and hit his head. He sued both Fresno and SMG. In turn, Fresno and SMG tendered their defense to Philadelphia. Philadelphia denied coverage finding that the incident did not arise out of Future Farmer’s negligence, and that SMG had the sole responsibility for maintaining the parking lot. Consequently, Philadelphia concluded that neither Fresno nor SMG qualified “as an additional insured under the policy” for the injury in the parking lot.
The coverage dispute continued, and in 2016, Philadelphia issued a demand for arbitration which was rejected by SMG. Philadelphia then petitioned the state court to compel arbitration arguing that SMG could not avoid the burdens of the policy while seeking to obtain policy benefits. SMG used Philadelphia’s conclusion that it did not qualify as an AI under the policy to argue that Philadelphia was “estopped from demanding arbitration”. In other words, SMG argued that it could not be held to the burdens of the policy without being provided with the benefits of the policy.
The trial court sided with SMG finding that there was no arbitration agreement between the parties. The court noted that while third party beneficiaries can be compelled to arbitration there was no evidence that applied here, and Philadelphia could not maintain its inconsistent positions on the policy as its respects SMG.
Disagreeing with the trial court, the Court of Appeal concluded that SMG was a third-party beneficiary of the policy. The AI obligations in the license agreement and the deluxe endorsement in the Philadelphia policy collectively establish an intended beneficiary status. The Court saw SMG’s tender to Philadelphia as an acknowledgement of that status.
Relatedly, the Court found that SMG’s tender to Philadelphia – its demand for policy benefits – equitably estopped them from avoiding the burdens of the policy. The Court stated it defied logic to require a named insured to arbitrate coverage disputes but free an unnamed insured demanding policy coverage from the same requirement. Conversely, the Court found no inconsistency in Philadelphia’s denial of coverage to SMG and its subsequent demand for arbitration. Philadelphia did not outright reject SMG’s status as a potential insured, but rather concluded that there was no coverage because the injury occurred in the parking lot. In other words, the coverage determination turned on the circumstances of the injury not SMG’s status under the policy.
In short, the Court concluded that the potential insured takes the good with the bad. If one seeks to claim coverage as an additional insured, they can be subject to the restrictions of the policy including arbitration clauses even if they did not purchase the policy.
Securing additional insurance has become increasingly more difficult and limited over the years, and this holding presents yet another hurdle to attaining AI coverage. For those seeking coverage, it is important to note that the Court’s ruling may have turned out differently had the carrier outright denied SMG’s AI status, rather than concluding that the injury was not covered.
Your insurance scenario may vary from the case discussed above. Please contact legal counsel before making any decisions. BPH’s attorneys can be reached via email to answer your questions.
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Danielle S. Ward, Balestreri Potocki & HolmesMs. Ward may be contacted at
dward@bph-law.com
Recording a Lis Pendens Is Crucial
January 04, 2023 —
David Adelstein - Florida Construction Legal UpdatesIf you are in a construction dispute where you are pursuing a construction lien foreclosure action, recording a lis pendens is crucial. Did I say crucial? “[O]ne purpose of a notice of lis pendens is to alert all others that title to the property is involved in litigation and that ‘future purchasers or encumbrancers of that property’ are at risk of being bound by an adverse judgment.” Henry v. AIM Industries, LLC, 47 Fla.L.Weekly D653b (Fla. 2d DCA 2022). There really is never a reason not to record a
lis pendens when pursing a construction lien foreclosure. Please remember that – don’t forget to record the lis pendens!
There are times a lis pendens is recorded when the lis pendens is NOT based on a duly recorded instrument (e.g., construction lien or mortgage). A
lis pendens, however, is recorded because the dispute is tied to the property in which the lis pendens is being recorded. The lis pendens is recorded to best safeguard the plaintiff’s interest in the real property without fear that the real property will be sold impacting the purpose (and, of course, security) of the lawsuit.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Supreme Court Grants Petition for Review Regarding Necessary Parties in Lien Foreclosure Actions
August 17, 2017 —
Lindsay K. Taft - Ahlers & Cressman PLLCFor several years, the requirements for which parties must be named in a lien foreclosure action when a release of lien bond is in place have been cloudy. RCW 60.04 et seq., the “mechanics’ lien” or “construction lien” statute, provides protection for a party or person who provides labor, materials, or equipment to a construction project. That person or party, if not paid, can file a lien against the construction project property to secure recovery. As the lien impacts the property by “clouding title” and could potentially result in foreclosure of the property, the statute sets forth strict requirements with respect to timing, notice, and parties. For example, the lien must be recorded within 90 days of the person or party’s last day of work or materials or equipment supplied, and the lien claimant must then give a copy of the claim of lien to the owner or reputed owner within 14 days of the lien recording. RCW 60.04.081.
The statute also allows a property owner or other party to “free” the property from the lien prior to the claim being resolved by issuing a release of lien bond. While the claim is still in dispute, the lien then attaches to the bond and not the property. The same rules about foreclosure, however, still apply but not without some confusion.
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Lindsay K. Taft, Ahlers & Cressman PLLCMs. Taft may be contacted at
ltaft@ac-lawyers.com
Insured's Complaint Against Flood Insurer Survives Motion to Dismiss
May 07, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer's attempt to dismiss the insured's multi-count complaint for failure to provide full coverage for flood damage failed. Ragusa Corp. v. Standard Fire Ins. Co., 2014 U.S. Dist. LEXIS 40812 (D. Conn. March 27, 2014).
The insureds' house suffered significant damage due to flood associated with Hurricane Irene. The insureds submitted a claim. Standard Fire paid $35,216.75, well below what the insureds thought they were owed. The insureds returned the check and demanded what they believed was full payment. The insureds demanded an appraisal because the parties did not agree on the amount being paid under the policy, including disagreement about the amount owed for items that both sides agreed were covered under the policy. Standard Fire refused to participate in an appraisal.
The insureds ended up suing Standard Fire, alleging, among other things, breach of contract, negligent misrepresentation, and breach of the implied covenant of good faith and fair dealing.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Mass-Timber Furnished Apartments Fare Well in Fire Tests
August 24, 2017 —
Nadine M. Post - Engineering News-RecordAdvocates for a code change that would allow taller heavy-timber frames are buoyed by the good performance of mass-timber structures in the first U.S. fire tests on full-scale furnished apartments.
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Nadine M. PostMs. Post may be contacted at
postn@enr.com
BHA Sponsors the 9th Annual Construction Law Institute
January 21, 2016 —
CDJ STAFF Bert L. Howe & Associates, Inc. is proud to be partnering with the Florida Bar Continuing Legal Education Committee and the Construction Law Committee of the Florida Bar Real Property, Probate and Trust Law Section, as a sponsor and exhibitor at 9th Annual Construction Law Institute to be held March 11th, 12th & 13th, 2016 at the JW Marriott Orlando Grande Lakes in Orlando.
With offices in Miami serving all of Florida, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,000 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors.
BHA’s experience covers the full range of construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well.
As the litigation climate in Florida continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders here to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Florida, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results.
For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA.
For your convenience, here is a link to the registration page for the 9th Annual Construction Law Institute:
http://www.floridabar.org/FBWEB/CLEReg.nsf/zLocations2/MAOS-A4UK4Z?OpenDocument
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