Sometimes a Reminder is in Order. . .
February 18, 2020 —
Christopher G. Hill - Construction Law MusingsRecently, I was talking with my friend Matt Hundley about a recent case he had in the Charlottesville, VA Circuit Court. It was a relatively straightforward (or so he and I would have thought) breach of contract matter involving a fixed price contract between his (and an associate of his Laura Hooe) client James River Stucco and the Montecello Overlook Owners’ Association. I believe that you will see the reason for the title of the post once you hear the facts and read the opinion.
In James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, the Court considered Janes River Stucco’s Motion for Summary Judgment countering two arguments made by the Association. The first Association argument was that the word “employ” in the contract meant that James River Stucco was required to use its own forces (as opposed to subcontractors) to perform the work. The second argument was that James River overcharged for the work. This second argument was made without any allegation of fraud or that the work was not 100% performed.
Needless to say, the Court rejected both arguments. The Court rejected the first argument stating:
In its plain meaning, “employ” means to hire, use, utilize, or make arrangements for. A plain reading of the contractual provisions cited–“shall employ” and references to “employees”–and relied on by Defendant does not require that the persons performing the labor, arranged by Plaintiff, be actual employees of the company or on the company’s payroll. It did not matter how the plaintiff accomplished the work so long as it was done correctly. The purpose of those provisions was to allocate to Plaintiff responsibility for supplying a sufficient workforce to get the work done, not to impose HR duties or require the company to use only “in house” workers. So I find that use of contracted work does not constitute a breach of the contract or these contractual provisions.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Reinsurer Must Reimburse Health Care Organization for Settlement Costs
June 17, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Indiana Supreme Court reversed summary judgment issued to reinsurer Continental Casualty Company (CNA) and determined it must reimburse the insured for settlement costs under the E & O policy. Wellpoint, Inc., et al. v. National Union Fire Ins. Co. of Pittsburgh, PA, et al., 2015 Ind. LEXIS 316 (Ind. April 22, 2015).
Anthem, Inc. was a large managed health care organization. Anthem was its own primary and excess insurer for E&O liability. It had numerous excess reinsurers. Beginning in 1998, anthem was confronted by various lawsuits alleging it and other managed care organizations failed to pay claims in a full and timely manner, thereby breaching state and federal statutes. The various lawsuits alleged substantially the same wrongful conduct, namely that after promising to pay doctors in a timely manner for their services, Anthem sought to improperly deny, delay and diminish payments due.
The cases were consolidated into a federal multi-district litigation proceeding in the Southern District of Florida. Claims for breach of contract, unjust enrichment, and violations of state prompt pay statutes were dismissed or dropped. Anthem then settled the underlying litigation in July 2005 without admitting and instead denying any wrongdoing or liability. The settlement called for both cash payments and implementation of specific business practices consistent with requested injunctive relief.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Justin Clark Joins Newmeyer & Dillion’s Walnut Creek Branch as its Newest Associate
May 03, 2017 —
Newmeyer & Dillion LLPWALNUT CREEK, Calif. – APR. 28, 2017 – Up and coming associate and insurance attorney
Justin Clark is the newest associate to join the ever-growing litigation practice at Newmeyer & Dillion LLP’s Walnut Creek office. Clark brings experience in the areas of insurance litigation, construction defect litigation, and business transactions.
Walnut Creek’s managing partner Brian Morrow explained why he is so excited by the addition of Clark: “We are thrilled to have Clark on board, as his emphasis on insurance coverage will assist in a key area for our clients, and further expand our capabilities in our northern California office.”
Clark has a background in a variety of practice areas, including insurance coverage, products liability, and asbestos litigation. He advocates for manufacturers, suppliers, distributers, and contractors in all phases of litigation. Clark represents developers, builders, and general contractors in construction and insurance disputes. He also helps small business clients draft commercial contracts to better serve their growing business needs. Clark can be reached at justin.clark@ndlf.com or 925-988-3263.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
Read the court decisionRead the full story...Reprinted courtesy of
Alexander Moore Promoted to Managing Partner of Kahana Feld’s Oakland Office
May 08, 2023 —
Alexander R. Moore - Kahana FeldKahana Feld is pleased to announce that Alexander R. Moore, Esq., has been promoted to Managing Partner of our Oakland office. Mr. Moore has been at Kahana Feld since 2021 and is a member of the construction defect and general liability practice groups.
Mr. Moore has over 23 years of experience representing individual and commercial clients in complex disputes arising out of construction contracts, construction defect allegations, premises liability matters, landlord-tenant disputes, and contractual disputes arising out of various business relationships involving financial services companies, technology companies, telecommunications companies, real estate brokerages, non-profits, and a range of small businesses. When not focused on litigation, Mr. Moore enjoys consulting on transactional matters including the development of construction and business contracts. He has extensive experience evaluating rights and obligations under construction contracts and related insurance programs. He also assists clients in the implementation of pre-litigation risk management strategies.
Read the court decisionRead the full story...Reprinted courtesy of
Alexander R. Moore, Kahana FeldMr. Moore may be contacted at
amoore@kahanafeld.com
How One Squirrel Taught us a Surprising Amount about Insurance Investigation Lessons Learned from the Iowa Supreme Court
April 03, 2019 —
Graham C. Mills - Newmeyer & DillionA recent decision issued by the Iowa Supreme Court, City of West Liberty, Iowa v. Employers Mutual Casualty Company, highlights the importance for a policyholder to investigate a loss fully so that a wide range of evidence can be gathered and presented to show why there is coverage. The facts of City of West Liberty are a little unusual, but its lesson is not limited to Iowa insurance law; the issues litigated in this case show the value of investigating what caused a loss regardless of whether the loss occurred in California, Iowa, or elsewhere.
Background on the Case
City of West Liberty involved an insurance coverage dispute between a municipality owned electrical power plant and its insurance company. The dispute arose from a single adventurous squirrel who climbed onto an outdoor electrical transformer, touching two different parts of the power plant: a portion of the steel frame and a bare cable clamp. In doing so, the squirrel created a “conductive path,” in the words of the Iowa Supreme Court, between the high voltage clamp and the grounded frame. The path, once created, caused significant damage to the transformer and other electrical equipment at the city’s power plant.
The city submitted a claim for the resulting damage, but the insurance company denied it. The insurer denied based on an exclusion in the insurance policy for property damage “caused by arcing or by electrical currents other than lightning.” According to the insurance company, the squirrel had no role in causing the damage; all of the damage resulted from arcing, which was excluded from coverage. The ensuing lawsuit focused upon whether the squirrel had a role in causing the damage. If yes, then there would be coverage according to Iowa insurance law; when a loss results from two causes, one of which is covered and the other is not, then there is coverage if the loss occurs from the covered cause. Due to this legal standard, the city contended that, apart from the arcing causing any damage, the squirrel caused the damage too. Because the insurance policy provided protection against mischievous actions performed by squirrels, the city contended that it was entitled to coverage, even if the excluded arcing contributed to the same damage too. Unfortunately, for the city, the Iowa Supreme Court rejected that argument, finding instead that the property damage resulted only from the arcing, which was excluded from coverage. In reaching its conclusion, the court absolved the squirrel of any wrongdoing, finding that it did not cause any of the property damage.
Read the court decisionRead the full story...Reprinted courtesy of
Graham C. Mills, Newmeyer & DillionMr. Mills may be contacted at
graham.mills@ndlf.com
Contractors May be Entitled to Both Prompt Payment Act Relief and Prejudgment Interest for a Cumulative 24%!
August 22, 2022 —
Margarita Kutsin - Ahlers Cressman & SleightThe Washington Prompt Payment Act, in Ch. 39.76 RCW and in RCW 39.04.250, ensures that contractors and subcontractors are promptly paid for their performance on public works contracts. Where a government entity or a prime contractor wrongfully withholds undisputed amounts due, that government entity or prime contractor must pay interest at a rate of 12% per annum.
Separately, prejudgment interest is awarded “based on the principle that a defendant ‘who retains money which he ought to pay to another should be charged interest upon it.’” Hansen v. Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662 (1986) (quoting Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 34, 442 P.2d 621 (1968)). The purpose is to “compensate the plaintiff for the use value of the money representing liquidated or determinable damages.” Id.
Read the court decisionRead the full story...Reprinted courtesy of
Margarita Kutsin, Ahlers Cressman & SleightMs. Kutsin may be contacted at
margarita.kutsin@acslawyers.com
Court Upholds Denial of Collapse Coverage Where Building Still Stands
October 02, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe Michigan Court of Appeals affirmed the trial court's decision finding the policy's collapse coverage did not apply. Cmty. Garage v. Auto-Owners Ins. Co., 2018 Mich. App. LEXIS 2680 (Mich. Ct. App. June 19, 2018).
The insured operated a truck repair business. In June 2016, the insured's place of business sustained damage due to failure of several trusses providing structural support to the building's roof. The failure was due to latent construction defects leading to an insufficient load bearing capacity. The roof began to sag while one of the walls bulged outward due to the sudden pressure overload. The insured hired a construction firm to install temporary shoring to support the roof and prevent further damage. All of the building's walls remained standing and, although the roof sagged, it also remained intact. However, the building could not be safely occupied until repairs were completed.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Former NJ Army Base $2B Makeover is 'Buzzsaw' of Activity
June 14, 2021 —
Tom Stabile - Engineering News-RecordTake a developed property the size of New York City’s Central Park with 5 million sq ft of building area, program in new construction or renovation over 20 years and across three dozen parcels for 1,600 housing units, 300,000 sq ft of civic or government space, 500,000 sq ft for retail and 2 million sq ft of offices, and you have a pretty ambitious undertaking. The $2-billion effort to redevelop Fort Monmouth, a decommissioned former U.S. Army base in the thick of New Jersey’s suburban sprawl, is all kinds of ambitious.
Reprinted courtesy of
Tom Stabile, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
