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Wisconsin Court of Appeals Re-affirms American Girl To Find Coverage for Damage Caused by Subcontractors

September 20, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The trial court's finding of no occurrence and no property damage due to faulty workmanship was reversed by the appellate court. No. 5 Walworth v. Engerman Contracting, Inc., 2021 Wis. App. LEXIS 401 (Wis. Ct. App, July 30, 2021). Engerman was the general contractor on a construction project at a residence. Engerman was hired to build a poll complex. Engerman subcontracted the project to Downes Swimming Pool Co., Inc. Downes purchased shotcrete (sprayed concrete) from Otto Jacobs Company LLC for the swimming poll walls and base. After completion, the pool immediately began leaking. An investigation determined that the shotcrete material was not installed correctly, contributing to cracking in the pool walls and the steel reinforcing bars were not sufficient to prevent cracks in the pool walls. The owner demolished the pool and constructed a new one. Thereafter, the owner sued Engerman, its insurers (General Casualty Company of Wisconsin and West Bend Mutual Insurance Company) and Downes and its insurer. Downes filed a third-party complaint against Jacobs and its insurer (Acuity Mutual Insurance Company) alleging Jacobs negligently provided inferior shotcrete to Downes. 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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TOP TAKE-AWAY SERIES: The 2023 Fall Meeting in Washington, D.C.

November 13, 2023 — Marissa L. Downs & Jennifer M. Kanady - The Dispute Resolver
Over 500 construction lawyers, experts, and consultants descended on Washington last week for the Forum’s 2023 Fall Meeting. Newly minted Forum Chair John Cook and Program Coordinators Catherine Delorey and Brian Zimmerman put together a stellar program focused on navigating government construction. For this installation of the post-meeting post, I'm teaming up with guest contributor, Jennifer Kanady, to bring you 10 of our top take-aways from this unique program. 10. Contracting with the government is replete with risk that could easily trap the unwary. Nobody likes to be taken advantage of. But hell hath no fury like the U.S. Government scorned. Erin Cannon-Wells and Aaron Silberman, gave a (truly) delightful, Indiana-Jones-inspired presentation on the regulations that can doom the unwitting contractor who is less than perfectly forthright in its dealings. The government has created financial incentives for members of the public to report your company’s violations as part of a qui tam action. When you consider the number of potential whistleblowers in the bidding process and the contracting chain, a qui tam action would seem more likely than not. Add to that the sanctions contractors might face for even innocent errors either by their own companies or their downstream subs, and government contracting begins to sound increasingly like the Temple of Doom. Oh, and in case you were only focused on affirmative claims, beware the “reverse false claim” which is concealing information that would rightfully entitle the government to a credit… Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP and Jennifer M. Kanady, FAC Services, LLC Ms. Downs may be contacted at mdowns@lauriebrennan.com Ms. Kanady may be contacted at JKanady@facfin.com Read the court decision
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Don’t Conspire to Build a Home…Wait…What?

June 08, 2020 — Ben Volpe - Colorado Construction Litigation Blog
In 1986, the Colorado General Assembly enacted the Pro Rata Liability Act, codified at C.R.S. § 13-21-111.5, which eliminated joint and several liability for defendants in favor of pro rata liability.[1] The statute was “designed to avoid holding defendants liable for an amount of compensatory damages reflecting more than their respective degrees of fault.”[2] However, the following year, the Colorado legislature carved out an exception to preserve joint liability for persons “who consciously conspire and deliberately pursue a common plan or design to commit a tortious act.”[3] Because of this conspiracy exception, plaintiffs try to circumvent the general rule against joint and several liability by arguing that construction professionals defending construction defect cases were acting in concert, as co-conspirators. Plaintiffs argue that if they can prove that two or more construction professionals consciously conspired and deliberately pursued a common plan or design, i.e., to build a home or residential community, and such a plan results in the commission of a tort, i.e., negligence, the defendants may be held jointly and severally liable for all of the damages awarded. Since 1986, Colorado courts have construed the “conspiracy” provision in § 13-21-111.5(4), but some have disagreed as to what constitutes a conspiracy for purposes of imposing joint liability. Civil Conspiracy In Colorado, the elements of civil conspiracy are that: “(1) two or more persons; (2) come to a meeting of the minds; (3) on an object to be accomplished or a course of action to be followed; (4) and one or more overt unlawful acts are performed; (5) with damages as the proximate result thereof.”[4] Read the court decision
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Reprinted courtesy of Benjamin Volpe, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Volpe may be contacted at volpe@hhmrlaw.com

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Tropical Storms Pile Up Back-to-Back-to-Back Out West

September 17, 2014 — Brian K. Sullivan – Bloomberg
Tropical Storm Polo, the 16th storm of an unusually active eastern Pacific hurricane season, is on a path eerily like that of Odile, which blasted the Baja California peninsula earlier this week. Odile went ashore late Sept. 14 with top winds of 125 miles (201 kilometers) per hour, the strongest storm to hit the region since 1967. As its winds swept the resort city of Cabo San Lucas, it was a Category 3 storm on the five-step Saffir-Simpson scale and a major hurricane. At its peak, hours before landfall, Odile’s winds reached 135 mph, Category 4-force. Photos from Mexico’s Baja California Sur show houses destroyed, hotels piled with debris and gaping holes in the local airport. At least 30,000 tourists were stranded. Read the court decision
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Reprinted courtesy of Brian K. Sullivan, Bloomberg
Mr. Sullivan may be contacted at bsullivan10@bloomberg.net

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When OSHA Cites You

April 22, 2024 — Michael Metz-Topodas - Construction Executive
With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website. Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility. EMPLOYEE EXPOSURE To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard. Reprinted courtesy of Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Metz-Topodas may be contacted at michael.metz-topodas@saul.com

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Certified Question Asks Washington Supreme Court Whether Insurer is Bound by Contradictory Certificate of Insurance

January 21, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit certified a question to the Washington Supreme Court as follows:

Under Washington law, is an insurer bound by representations made by its authorized agent in a certificate of insurance with respect to a party's status as an additional insured under a policy issued by the insurer, when the certificate includes language disclaiming its authority and ability to expand coverage?

T-Mobile USA Inc. v. Selective Ins. Co lf Am., 2018 U.S. App. LEXIS 31863 (9th Cir. Nov. 9, 2018). In 2010, T-Mobile entered into a Field Services Agreement (FSA) with Innovative Engineering, Inc. under which Innovative would provide services in connection with the construction of rooftop cellular antennae towers in New York City. The FSA required Innovative to maintain general liability insurance naming T-Mobile as an additional insured, and required that Innovative provide T-Mobile with certificates of insurance documenting the coverage. Innovative obtained coverage from Selective Insurance Company of America. 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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Congratulations to BWB&O’s Los Angeles Office on Another Successful MSJ!

July 11, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce Partner Daniel Crespo and Associate Stefon Jackson successfully argued and won a Motion for Summary Judgment (“MSJ”) for our client, a property owner of an apartment complex. Plaintiff was involved in a physical altercation with one of the tenants at an apartment complex owned by our client. Plaintiff alleged that our client had notice of a propensity for violence claiming that there were prior instances of contentious interactions between this particular tenant and Plaintiff. As a result, Plaintiff alleged that our client had a duty to prevent further interactions between Plaintiff and the tenant presuming that an act of physical violence was reasonably foreseeable. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Dispute Resolution Provision in Subcontract that Says Owner, Architect or Engineer’s Decision Is Final

March 29, 2021 — David Adelstein - Florida Construction Legal Updates
In subcontracts, it is not uncommon to see a provision that says something to the effect: Should any dispute arise between the parties respecting the true construction or interpretation of the Plans, Specifications and/or the Contract Requirements, the decision of the Owner or the Owner’s designated representative as set forth in the General Contract shall be final. This is a provision in a subcontract dealing with dispute resolution, typically when there is a dispute as to whether the subcontractor is performing extra-contractual or base contract work regarding an “interpretation of the Plans, Specifications, and/or the Contract Requirements.” It is not uncommon for there to be a dispute as to whether certain work is within the subcontractor’s scope of work or outside the subcontractor’s scope of work and subject to a change order. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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