Claims for Negligence? Duty to Defend Triggered
July 09, 2019 —
Michael S. Levine & Adriana A. Perez - Hunton Andrews KurthOn June 17, 2019, the First Circuit held that an insurer’s duty to defend was triggered because the underlying complaint set forth claims that required a showing of intent as well as claims that sought recovery for conduct that “fits comfortably within the definition of an ‘accident.’” In Zurich American Ins. Co v. Electricity Maine, LLC, Zurich sought declaratory judgment that, under a D&O policy, it had no duty to defend the insured, Electricity Maine, an electrical utility company being sued in the underlying class action. Zurich argued it had no duty to defend because the underlying complaint failed to allege that Electricity Maine engaged in conduct that qualified as an “occurrence” or that caused “bodily injury” under the terms of the policy. The First Circuit disagreed.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Adriana A. Perez, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Perez may be contacted at aperez@HuntonAK.com
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The Utility of Arbitration Agreements in the Construction Industry
December 30, 2019 —
Brian L. Gardner & Jason R. Finkelstein - Construction ExecutiveIn today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements.
To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA.
With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators).
Reprinted courtesy of
Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Gardner may be contacted at bgardner@coleschotz.com
Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com
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Alabama Still “An Outlier” on Construction Defects
October 14, 2013 —
CDJ STAFFWhile many state Supreme Courts have determined that faulty construction work can be an occurrence under a standard commercial liability policy, the Alabama Supreme Court has taken the contrary view. Writing on the Kilpatrick Townsend blog, Carl A. Salisbury and Edmund M. Kneisel point out that the decision makes Alabama “an outlier,” and they ask, “how much longer will the outliers hold out?”
They note that in the underlying construction defect case, “the arbitrator awarded $3 million in compensatory damages to the homeowners because of improperly installed flashing; improperly installed brick; the lack of weep holes in the brick; improperly installed doors and windows; improper construction of the upper porches; faulty construction of the roof; improper installation of a bathtub.” They summarize: “the house must have leaked like a colander.”
When the insurer denied coverage, the contractor sued. The insurer argued that “the CGL policy form does not cover construction-related acts or omissions because such acts are not an insured ‘occurrence.’” Mr. Salisbury and Mr. Kneisel point out that “the Alabama Supreme Court agreed.”
The problem they see is that “if there is no insurance for any intentional act, then insurance is simply a rip-off — it covers nothing.” They quote Justice Benjamin Cardozo to this effect: “To restrict insurance to cases where liability is incurred without fault of the insured would reduce indemnity to a shadow.” Their argument is that the Alabama decision was not the “correct position,” as exemplified by recent decisions from West Virginia, North Dakota, Connecticut and Georgia. The case “was a prime opportunity for the Alabama Supreme Court to leave the ranks of the outliers and join the majority view.”
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Tejon Ranch Co. Announces Settlement of Litigation Related to the Tejon Ranch Conservation and Land Use Agreement
December 05, 2022 —
Tejon Ranch Co.TEJON RANCH, Calif., Nov. 30, 2022 (GLOBE NEWSWIRE) -- Tejon Ranch Co. is pleased to announce the resolution of a legal dispute involving the Tejon Ranch Conservancy and the signatories to the 2008 Tejon Ranch Conservation and Land Use Agreement (Agreement), namely, Audubon California, Endangered Habitats League, Natural Resources Defense Council, Planning and Conservation League, and the Sierra Club. The dispute stemmed from the signatories' participation in the Antelope Valley Regional Conservation Strategy (AVRCIS), which was subsequently used by the Center for Biological Diversity (CBD) and the California Native Plant Society (CNPS) to oppose Tejon Ranch Co.'s Centennial development.
The 2008 Tejon Ranch Conservation and Land Use Agreement has been widely hailed as a historic conservation achievement in preserving one of California's great natural and working landscapes. Tejon Ranch Co.'s agreement to conserve 90 percent of its landholdings pursuant to the Agreement is a monumental contribution to conservation in California. Tejon Ranch Co. continues to be a leader in balancing the stewardship of the ranch as a natural treasure for California and achieving economic opportunities for its shareholders. The Company demonstrated that leadership with the actions it took to enforce the terms of the Agreement, which led to this legal dispute.
As part of a settlement agreement, the Conservancy and the signatories dismissed with prejudice the lawsuit they filed. They also acknowledge that the AVRCIS does not contain the "best available scientific data" regarding Tejon Ranch Co.'s landholdings, and further, that they will not use, or support the use of, the AVRCIS or any other similar endeavors, to challenge Tejon Ranch Co.'s development projects and/or any Ranch uses consistent with the Agreement.
In turn, Tejon Ranch Co. released from escrow 50% of the advance payments it withheld under the terms of the Agreement. The remaining funds will be released over a three-year period as matching funds to monies raised by the Conservancy as well as others who participate in Conservancy capital raising programs, after which the remaining funds with be released to the Conservancy to further its mission. These funds are the final fulfilment of Tejon Ranch Co.'s full funding obligations under the Agreement, totaling $11,760,000 over the past 14 years, again demonstrating Tejon Ranch Co.'s commitment to fulfilling the implementation of the 2008 Tejon Ranch Conservation and Land Use Agreement.
All parties are glad to put this dispute behind them and move forward in a cooperative manner to achieve the goals envisioned in the historic 2008 Agreement.
About Tejon Ranch Co.
Tejon Ranch Co. (NYSE: TRC) is a diversified real estate development and agribusiness company, whose principal asset is its 270,000-acre land holding located approximately 60 miles north of Los Angeles and 30 miles south of Bakersfield. More information about Tejon Ranch Co. can be found on the Company's website at www.tejonranch.com.
Forward Looking Statements
This press release contains forward-looking statements, including without limitation statements regarding commitments of the parties under the settlement agreement and the achievement of certain goals related to Tejon Ranch Co.'s landholdings. These forward-looking statements are not a guarantee of future results, performance, or achievements, are subject to assumptions and involve known and unknown risks, uncertainties and other important factors that could cause the actual results, performance, or achievements to differ materially from those implied by such forward-looking statements. These risks, uncertainties and important factors include, but are not limited to, the ability and willingness of the parties to the Settlement Agreement to take the actions (or refrain from taking the actions) specified in the Settlement Agreement, and the risks described in the section entitled "Risk Factors" in our annual and quarterly reports filed with the SEC.
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Tidal Lagoon Plans Marine Project to Power Every Home in Wales
March 05, 2015 —
Louise Downing – Bloomberg(Bloomberg) -- Tidal Lagoon Power Ltd., a U.K. marine-energy developer, is planning its second project, a 2.8-gigawatt power plant that will use the tides to generate enough electricity for every home in Wales.
The company submitted an environmental impact assessment for the marine power plant that would use 90 turbines installed between Cardiff and Newport, according to an e-mailed statement Monday. The closely held company expects to submit a full planning application in 2017 and the project may go into operation in 2022.
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Louise Downing, BloombergMs. Downing may be contacted at
ldowning4@bloomberg.net
BIOHM Seeks to Turn Plastic Waste into Insulation Material with Mushrooms
July 27, 2020 —
Aarni Heiskanen - AEC BusinessBIOHM is a research and development led UK start-up that aims to revolutionize the construction industry with its bio-based materials. Among their products are insulation panels made from mycelium, the root formations of fungi. Recently, the company discovered that certain fungal species can consume plastic as a food source. This invention could bring about new construction materials that originate from plastic waste.
“Evolving from eating leaf matter and the odd bit of tree bark, to eating plastic might seem like a huge jump, but for certain fungi, it can actually happen very quickly. The inhabitants of the microbial world are far more genetically flexible than humans, able to evolve and adapt to their environment within a generation, constantly modifying and improving upon their genome to maximize their productivity,” says Samantha G.R. Jenkins, Lead Biotechnology Engineer.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Staying the Course, Texas Supreme Court Rejects Insurer’s Argument for Exception to Eight-Corners Rule in Determining Duty to Defend
April 27, 2020 —
John C. Eichman, Sergio F. Oehninger, Grayson L. Linyard & Leah B. Nommensen - Hunton Insurance Recovery BlogIn responding to a certified question from the Fifth Circuit in Richards v. State Farm Lloyds, the Texas Supreme Court held that the “policy-language exception” to the eight-corners rule articulated by the federal district court is not a permissible exception under Texas law. See Richards v. State Farm Lloyds, 19-0802, 2020 WL 1313782, at *1 (Tex. Mar. 20, 2020). The eight-corners rule generally provides that Texas courts may only consider the four corners of the petition and the four corners of the applicable insurance policy when determining whether a duty to defend exists. State Farm argued that a “policy-language exception” prevents application of the eight-corners rule unless the insurance policy explicitly requires the insurer to defend “all actions against its insured no matter if the allegations of the suit are groundless, false or fraudulent,” relying on B. Hall Contracting Inc. v. Evanston Ins. Co., 447 F. Supp. 2d 634, 645 (N.D. Tex. 2006). The Texas Supreme Court rejected the insurer’s argument, citing Texas’ long history of applying the eight-corners rule without regard for the presence or absence of a “groundless-claims” clause.
The underlying dispute in Richards concerned whether State Farm must defend its insureds, Janet and Melvin Richards, against claims of negligent failure to supervise and instruct after their 10-year old grandson died in an ATV accident. The Richardses asked State Farm to provide a defense to the lawsuit by their grandson’s mother and, if necessary, to indemnify them against any damages. To support its argument that no coverage under the policy existed, and in turn, it had no duty to defend, State Farm relied on: (1) a police report to prove the location of the accident occurred off the insured property; and (2) a court order detailing the custody arrangement of the deceased child to prove the child was an insured under the policy. The federal district court held that the eight-corners rule did not apply, and thus extrinsic evidence could be considered regarding the duty to defend, because the policy did not contain a statement that the insurer would defend “groundless, false, or fraudulent” claims. In light of the extrinsic police report and extrinsic custody order, the district court granted summary judgment to State Farm.
Reprinted courtesy of Hunton Andrews Kurth attorneys
John C. Eichman,
Sergio F. Oehninger,
Grayson L. Linyard and
Leah B. Nommensen
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Linyard may be contacted at glinyard@HuntonAK.com
Ms. Nommensen may be contacted at leahnommensen@HuntonAK.com
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Fracking Fears Grow as Oklahoma Hit by More Earthquakes Than California
July 09, 2014 —
Zain Shauk – BloombergSquinting into a laptop perched on the back of his pickup, Austin Holland searches for a signal from a coffee-can-sized sensor buried under the grassy prairie.
Holland, Oklahoma’s seismology chief, is determined to find the cause of an unprecedented earthquake epidemic in the state. And he suspects pumping wastewater from oil and gas drilling back into the Earth has a lot to do with it.
“If my research takes me to the point where we determine the safest thing to do is to shut down injection -- and consequently production -- in large portions of the state, then that’s what we have to do,” Holland said. “That’s for the politicians and the regulators to work out.”
So far this year, Oklahoma has had more than twice the number of earthquakes as California, making it the most seismically active state in the continental U.S. As recently as 2003, Oklahoma was ranked 17th for earthquakes. That shift has given rise to concern among communities and environmentalists that injecting vast amounts of wastewater back into the ground is contributing to the rise in Oklahoma’s quakes. The state pumps about 350,000 barrels of oil a day, making it the fifth largest producer in the U.S.
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Zain Shauk, BloombergMr. Shauk may be contacted at
zshauk@bloomberg.net
