California Court Broadly Interprets Insurance Policy’s “Liability Arising Out of” Language
December 20, 2017 —
Garret Murai - California Construction Law BlogIn McMillin Mgmt. Servs. v. Financial Pacific Ins. Co., Cal.Ct.App. (4th Dist.), Docket No. D069814 (filed 11/14/17), the California Court of Appeal held that the term “liability arising out of,” as used in an ongoing operations endorsement, does not require that the named insured’s liability arise while it is performing work on a construction project.
In the McMillin case, the general contractor and developer (McMillin) contracted with various subcontractors, including a concrete subcontractor and stucco subcontractor insured by Lexington Insurance Company. Both subcontractors performed their work at the project prior to the sale of the units.
The Lexington policies contained substantively identical additional insured endorsements that provided coverage to McMillin “for liability arising out of your [the named insured subcontractor’s] ongoing operations performed for [McMillin].” Several homeowners filed suit against McMillin, alleging that they had discovered various defective conditions arising out of the construction of their homes, including defects arising out of the work performed by Lexington’s insureds. Lexington argued that there was no potential for coverage in McMillin’s favor under the endorsements because there were no homeowners during the time that the subcontractors’ operations were performing work at the project (the homes closed escrow after the subcontractors had completed their work); thus, McMillin did not have any liability for property damage that took place while the subcontractors’ operations were ongoing.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel Rose Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Gordon & Rees Ranks #5 in Top 50 Construction Law Firms in the Nation
June 29, 2020 —
Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani has been ranked the #5 construction law firm in the nation by Construction Executive in the magazine’s 2020 ranking of The Top 50 Construction Law Firms. Gordon & Rees is the only California-based law firm to rank in the Top 25.
The firm was ranked in the Top 10 in more specific areas as well.
- #1 in the Top 10 Law Firms Ranked by Most Locations
- #2 in the Top 10 Law Firms Ranked by Number of Construction Attorneys
- #6 in the Top 10 Law Firms Ranked by Number of States Admitted to Practice
“With offices throughout the nation and outstanding construction attorneys in many of those offices, we are able to offer our construction clients a diverse range of legal services wherever they do business,” said
Ernie Isola partner and co-chair of the firm’s construction practice group.
Read the court decisionRead the full story...Reprinted courtesy of
Gordon Rees Scully Mansukhani
Hawaii Supreme Court Finds Climate Change Lawsuit Barred by “Pollution Exclusion”
November 05, 2024 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn October 7, 2024, the Hawaii Supreme Court answered the question of whether an “accident” includes an insured’s reckless conduct in emitting harmful greenhouse gases (“GHGs”) and whether such emissions are “pollutants” as defined in a general liability policy’s pollution exclusion. In Aloha Petro., Ltd. v. National Union Fire Insurance Co. of Pitt., PA, No., 2024 Haw. LEXIS 179 (Oct. 7, 2024), the Hawaii Supreme Court answered in the affirmative as to both certified questions from the United States District Court for the District of Hawaii, holding that an insured’s reckless conduct can be an “accident” and that GHGs are “pollutants” under the policies’ pollution exclusions.
In the underlying case, the County of Honolulu and the County of Maui (the “Counties”) sued Aloha Petroleum, Ltd. (“Aloha”) and several other fossil fuel companies for climate change-related harms. Namely, the Counties alleged that the fossil fuel industry knew that its products would cause catastrophic climate change, and rather than mitigating their emissions, defendants concealed such knowledge, promoted climate science denial, and increased their production of fossil fuels. Aloha was allegedly on notice that its products caused harmful climate change through its former parent company, Phillips 66, and its current parent company, Sunoco. Given this knowledge, the District Court determined that the Counties allegations constituted reckless conduct by Aloha.
Read the court decisionRead the full story...Reprinted courtesy of
Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Pennsylvania Civil Engineers Give the State's Infrastructure a "C-" Grade
November 28, 2022 —
American Society of Civil EngineersPENNSYLVANIA. — The Pennsylvania Council of the American Society of Civil Engineers (ASCE) released the 2022 Report Card for Pennsylvania's Infrastructure today at three congruent news conferences across the state including Harrisburg, Lehigh Valley, and Pittsburgh, with 15 categories of infrastructure receiving an overall grade of a "C-". This is the same grade issued by the council in its 2018 report. A "C-" means Pennsylvania's infrastructure is in mediocre condition and requires attention. Pennsylvania's aviation and rail networks are helping to drive economic growth in the region and an improved roadway network is helping increase efficiency for the regional and national economies, but an aging infrastructure network and struggling water systems threaten the health, safety and welfare of the region. Civil engineers graded aviation (B-), bridges (D+), dams (C), drinking water (D), energy (C), hazardous waste (B-), levees (C), parks (C+), ports (C+), rail (C), roads (C-), solid waste (C+), stormwater (D), transit (D), and wastewater (D-).
"Considering Pennsylvania's aging infrastructure and its critical role in our state's economy, policy makers must continue to prioritize dedicated funding to update and improve all infrastructure assets," said Rep. Mike Carroll, D-118. "Failure to do so will seriously harm the quality of life for every citizen."
"This report shows that Pennsylvania's infrastructure has seen some noteworthy improvements and that our lawmakers are prioritizing the built environment, but out-of-sight, out-of-mind systems such as water and wastewater pipelines are lacking the necessary attention," said David DiGioia, chair, 2022 Report Card for Pennsylvania's Infrastructure. "With help from the Bipartisan Infrastructure Law, we could improve our communities for generations if we double down on investment and close our funding gaps across all sectors included in this report."
The Report Card was created as a public service to citizens and policymakers to inform them of the infrastructure needs in their state. Civil engineers used their expertise and school report card-style letter grades to condense complicated data into an easy-to-understand analysis of Pennsylvania's infrastructure network. ASCE State and Regional Infrastructure Report Cards are modeled after the national Infrastructure Report Card, which gave America's infrastructure an overall grade of 'C-' in 2021.
To view the report card and all five categories, visit https://infrastructurereportcard.org/state-item/Pennsylvania/.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
Read the court decisionRead the full story...Reprinted courtesy of
Contractor Disputes Report Amid Amazon Warehouse Collapse Lawsuit
May 02, 2022 —
James Leggate - Engineering News-RecordA contractor facing a lawsuit related to the December partial collapse of an Amazon.com Inc. warehouse that was hit by a tornado is pushing back on claims in a fire marshal’s report that highlighted possible “significant structural issues” with the building.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
2019 Legislative Changes Affecting the Construction Industry
July 09, 2019 —
Melinda S. Gentile & Cadian T. Baker - Peckar & Abramson, P.C.The 2019 Florida Legislative Session recently concluded and a number of important construction-related House Bills (HB) and Senate Bills (SB) were presented during the Session. Below is a summary of those construction-related bills set to become law in 2019.
Bills Becoming Law in 2019
HB 1247: Relating to Construction Bonds. This bill passed both the House and the Senate and is awaiting the Governor’s signature. Once the Governor has approved the bill it becomes effective as of October 1, 2019.
This bill addresses how to properly perfect a claim against a contractor’s payment bond.
(1) The Notice of Nonpayment that must be served on the contractor and the surety, must be made under oath and include the following provisions:
The nature of the labor or services performed or to be performed;
The materials furnished or to be furnished;
The amount paid on the account; and if known, the amount owed and the amount to become due.
A Notice of Nonpayment that includes the sums for retainage must specify the portion of the amount claimed for retainage.
(2) A subcontractor, laborer, or material supplier (claimant) who files a fraudulent Notice of Nonpayment loses their rights under the bond. The filing of a fraudulent notice is a complete defense to claimant’s claim against the bond. A notice is fraudulent if the claimant willfully exaggerated the amount due, willfully included a claim for work not performed or materials not furnished or prepared the notice with willful and gross negligence, which resulted in willful exaggeration. However, a minor mistake in the notice, or a good faith dispute as to the amount due, is not considered fraudulent. Please note that this provision mirrors the existing statute relative to a fraudulent lien.
Read the court decisionRead the full story...Reprinted courtesy of
Melinda S. Gentile, Peckar & Abramson, P.C.Ms. Gentile may be contacted at
mgentile@pecklaw.com
Loss Ensuing from Faulty Workmanship Covered
April 28, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe court found coverage for damage resulting from faulty workmanship. Drury Co. v. Mo. United Sch. Ins. Counsel, 2014 Mo. App. LEXIS 319 (Mo. Ct. App. March 25, 2014).
The School District entered a contract with general contractor, Penzel Construction Company, Inc., to build an addition to a high school. Under the prime contract, the School District was to purchase property insurance, including builder's risk "all-risk" coverage. The policy was to cover the interests of the owner, the contractor, subcontractors and sub-subcontractors in the project.
The School District obtained a policy from Missouri United School Insurance Counsel (MUSIC). Exclusions in the all-risk policy included loss due to faulty workmanship or materials, "unless loss by a peril not otherwise excluded ensues and then MUSIC shall be liable only for such ensuing loss."
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Developer Pre-Conditions in CC&Rs Limiting Ability of HOA to Make Construction Defect Claims, Found Unenforceable
August 16, 2021 —
Garret Murai - California Construction Law BlogThe Davis-Stirling Common Interest Development Act (Civ. Code §4000, et seq.), also known simply as “Davis-Stirling,” is a statute that applies to condominium, cooperative and planned unit development communities in California. The statute, which governs the formation and management of homeowners associations or HOAs, also governs lawsuits filed by HOAs for construction defects.
In the next case,
Smart Corners Owner Association v. CJUF Smart Corner LLC, Case No. D076775 (May 20, 2021), the 4th District Court of Appeal addressed the pre-litigation voting requirements of Davis-Stirling and the impact of recent amendments to the Act.
The Smart Corners Case
In 2004, CJUF Smart Corner LLC contracted with Hensel Phelps Construction Company for the construction of the Smart Corner condominium project, a 19-story mixed-use development with 301 residential units and common areas, in San Diego, California. As part of the development an HOA was formed, the Smart Corner Owner Association.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
