Chicago Debt Document Says $8.5B O'Hare Revamp May Be Delayed
October 26, 2020 —
Jeff Yoders - Engineering News-RecordThe $8.5-billion revamp of O'Hare International Airport may have to be delayed because of COVID-19 related economic impacts, according to documents included in paperwork to refinance existing airport debt. The city forcefully disagreed with that summation, however, and says the project will move forward and is not endangered.
Reprinted courtesy of
Jeff Yoders, Engineering News-Record
Mr. Yoders may be contacted at yodersj@enr.com
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Eleven Newmeyer Dillion Attorneys Named to 2023 U.S. News Best Lawyers in Multiple Practice Areas
August 29, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – August 18, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that eleven of the firm’s attorneys were recently selected for inclusion and will be recognized in their respective areas in The Best Lawyers in America© 2023.
Additionally, Greg Dillion, Thomas Newmeyer and Michael McClellan have been selected to Best Lawyers 2023 Lawyer of the Year list in Litigation - Construction, Construction Law and Litigation - Real Estate respectively.
The eleven 2023 Best Lawyers are:
Best Lawyers is the oldest peer-review publication for the legal profession. Attorneys are chosen through intensive peer-review surveys in which leading lawyers evaluate their professional peers. Best Lawyers listings are published in almost 70 countries worldwide and are recognized for their reliable and unbiased selections.
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Sinking Buildings on the Rise?
July 01, 2019 —
Jason M. Adams - Gibbs GidenBy now everyone in the construction and insurance industries is familiar with the 58-story Millennium Tower building in San Francisco that has sunk 17 inches and tilted another 14 inches to the northwest. Another recent New York lawsuit alleges that a 58-story luxury Manhattan condo high-rise is also sinking and causing significant damage. With construction booming in the Southeast and other areas with questionable soils, sinking building cases may be on the rise. Given this reality, the issue of subsidence should be of paramount importance to every construction and insurance professional when insuring a project.
Most insurance carriers will include a subsidence and/or other earth movement exclusion on a commercial general liability ("CGL") quote for insurance as a matter of course. Construction professionals (owners/developers, general contractors, and subcontractors) or their brokers may be under the mistaken impression that they have no choice but to accept these subsidence exclusions as part of a standard construction policy. This is not the case. To the contrary, most insurance carriers are willing to remove subsidence exclusions if the underwriters are provided with acceptable geotechnical/soils reports when considering the project.
The insured construction professional often pushes back on the insurance carrier's request for soils reports because the insured sees the request as an unnecessary hassle, expense or unwelcome interference in the job. However, the carrier's soils review is designed to benefit everyone. If potential soils issues are discovered during the underwriting process they can be addressed at the outset of the project rather than after the project is built, which will typically cost substantially more to remedy. Moreover, a thorough analysis of the condition of the soils at the outset of the project allows the risk management team to recognize any potential issues and ensure that the proper coverage is obtained in order to provide protection down the road. Even if the insurance carrier charges more money to sign off on questionable soils after a review of the reports, the slight increase in premium is likely a worthwhile investment in the event of a subsidence loss.
The lesson is that the insured should not blindly accept a subsidence exclusion and should negotiate its removal. The insured should provide its broker and the insurance carrier the information they need in order to make a fully-informed decision as it pertains to the soils. Once the insurance carrier has had the opportunity to review and sign off on the condition of the soil, the carrier should feel comfortable enough to remove any subsidence exclusions or other similar earth movement limitations.
Subsidence is a relatively straightforward issue to deal with as long as the project team’s lawyers, brokers, risk managers and insurance company underwriters are working together toward the common goal of properly evaluating the risk and adequately insuring the project. This simple cooperative process between the entire risk management team could mean the difference between being covered or not covered in the event of a loss related to earth movement.
Jason M. Adams, Esq. is Senior Counsel at Gibbs Giden representing construction professionals (owners/developers, contractors, architects, etc.) in the areas of Construction Law, Insurance Law and Risk Management, Common Interest Community Law (HOA) and Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms. Mr. Adams can be reached at jadams@gibbsgiden.com.
The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. The transmission of information by email, or any transmission or exchange of information over the Internet, or by any of the included links is not intended to create and does not constitute an attorney-client relationship. This publication may not be reproduced or used in whole or in part without written consent of the author. Copyright 2019 ©
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Client Alert: Court of Appeal Applies Common Interest Privilege Doctrine to HOA Litigation Meetings
March 19, 2014 —
David W. Evans, Steven M. Cvitanovic, and Michael C. Parme - Haight Brown & Bonesteel LLPIn Seahaus La Jolla Owners Assoc. v. Superior Court (No. D064567, March 12, 2014), the California Court of Appeal held a homeowners association’s (“HOA”) litigation meetings related to the HOA’s construction defect lawsuit were subject to protection under the attorney-client privilege. Specifically, the court concluded the common interest doctrine applied to the subject litigation meetings, thereby barring the defendants in the HOA’s lawsuit from seeking discovery related to the content and disclosures made during those meetings.
The plaintiff HOA initiated a construction defect lawsuit against a residential developer and builder, seeking damages for construction defects related to common areas. The defendants took the depositions of individual homeowners and inquired regarding the communications and disclosures made at informational litigation update meetings. The meetings were conducted by the HOA’s counsel with groups of homeowners, some of whom had filed their own, separate lawsuits against the same defendants. Motions to compel were filed after attorney-client privilege objections were asserted by counsel for the HOA. After the court-appointed discovery referee opined that the common interest doctrine applied and that the communications presented at the meetings were subject to the attorney-client privilege, the trial court rejected this recommendation and overruled the HOA’s privilege objections. The HOA filed a petition for a writ of mandate.
The defendants argued the privilege had been waived based on the presence of persons who were not the clients of the HOA’s attorney, that the subject communications were not “confidential communications” and that the individual homeowners and the HOA did not share common interests at the time. After setting forth a comprehensive discussion of the statutory principles underlying the attorney-client privilege and the bases for waiver, as provided in California Evidence Code §§ 912 and 952, and summarizing applicable decisional law, the court specifically analyzed the question of whether the common interest doctrine applied in the context of the disputed HOA litigation meetings. The common interest doctrine protects confidential communications made by counsel to third parties if the third parties are present to further the interest of the client or are those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer was consulted.
Reprinted courtesy of
David W. Evans,
Steven M. Cvitanovic, and
Michael C. Parme of Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com, Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com, and Mr. Parme may be contacted at mparme@hbblaw.com
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Preventing Acts of God: Construction Accidents Caused by Outside Factors
September 20, 2017 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover.
There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Illinois Court of Appeals Addresses What It Means to “Reside” in Property for Purposes of Coverage
July 16, 2023 —
James M. Eastham - Traub LiebermanIn Dardar v. Farmers Auto. Ins. Ass'n, 2023 IL App ( 5th ) 220357-U, the Illinois Fifth District Court of Appeals addressed an insured’s suit against her property insurer after the carrier denied coverage for a fire loss. The property in question was inherited by the Plaintiff from her brother and was in the process of being renovated at the time of the fire loss. After the fire, the Plaintiff’s homeowners carrier denied the claim on the grounds that the Plaintiff was not occupying the property at the time of the fire and was therefore not covered under the terms of the policy. It was undisputed that the Plaintiffs never lived in or physically occupied the home. Correspondingly, the carrier denied the claim on the basis that the policy only covered the Plaintiff’s "residence premises," which was defined as: (1) the one-family dwelling where you reside; (2) the two, three, or four-family dwelling where you reside in at least one of the units; or (3) that part of any other building in which you reside. The carrier determined that the Plaintiff did not “reside” at the property and therefore were not covered under the policy terms.
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James M. Eastham, Traub LiebermanMr. Eastham may be contacted at
jeastham@tlsslaw.com
Retainage on Pennsylvania Public Contracts
January 31, 2018 —
Wally Zimolong - Supplemental ConditionsAh yes, retainage, what could represent your profit on a project and something frequently abused by owners on private and public projects alike. Fortunately, Pennsylvania law offers public works contractors some protection from retainage abuse. The Public Prompt Payment Act dictates when retainage can be withheld and when it must be released. Agencies that fail to follow the Prompt Payment Act’s retainage rules can end up owing you interest, penalty, and attorney’s fees.
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Wally Zimolong, Zimolong LLC
Your Work Exclusion Applies to Damage to Tradesman's Property, Not Damage to Other Property
March 30, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe New Mexico Court of Appeals presented a cogent analysis of claims for construction defects and the application of the "your work" exclusion under a CGL policy in Pulte Homes of New Mexico, Inc. v. Indiana Lumbermens Ins. Co., 2015 N.M. App. LEXIS 134 (N. M. Ct. App. Dec. 17, 2015).
Pulte built 107 homes. Pulte contracted with 'Western Building Supply (WBS) to provide windows and sliding glass doors for the homes. Pulte was named as an additional insured under WBS's policy with Lumbermens (ILM).
In 2007, a large group of homeowners sued Pulte, alleging numerous construction defects in their homes. Among the defects were windows that leaked and sliding glass doors that stuck and did not close completely. Many of the homeowners arbitrated their claims against Pulte. In May 2009, Pulte tendered its first demand for a defense to ILM. The arbitration award against Pulte found that windows and doors did not operate properly and had been replaced by Pulte.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
