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Awarding Insurer Summary Judgment Before Discovery Completed Reversed

August 29, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The Florida Court of Appeal reversed the trial court's awarding of summary judgment to the insurer because discovery was not completed. Sacramento v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 4292 (Fla. Ct. App. June 22, 2022). The insured filed a claim under the all-risk policy for water damage caused by Hurricane Irma. Citizens denied the claim based upon a policy exclusion. The insured filed suit on March 8, 2019. On April 24, 2020, Citizens moved for summary judgment. A hearing was set for August 10, 2020. Citizens filed a notice for a deposition of a Mitigation Company representative scheduled to occur on December 1, 2020. On August 14, 2020, the insured filed an opposition to the summary judgment motion arguing that it would be premature to grant the motion because there were still pending depositions. The insured specifically requested that the trial court not enter summary judgment until the mitigation company's representative was deposed because he was a key witness who would be testifying regarding the cause of loss. 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

Recent Developments in Legislative Efforts To Combat Climate Change

October 30, 2023 — Dominick Weinkam & Robert B. Cimmino - ConsensusDocs
Governments across the United States have been increasingly integrating climate considerations into legislation affecting various sectors of the economy. The construction industry is no exception. Recent legislative developments at various levels of government are reshaping construction practices to mitigate the industries’ greenhouse gas emissions and vulnerability to climate-related risks. These developments include incentivizing eco-friendly construction projects, mandating stricter regulations to reduce carbon emissions, and enhancing building resilience to more severe weather events. Contractors must stay abreast of these developments to ensure compliance with new substantive and administrative requirements to remain competitive in a changing environment. Funding Greener Construction Projects: The Inflation Reduction Act The federal Inflation Reduction Act (IRA) enacted in August 2022 marked a significant milestone in the pursuit of greener construction. The IRA is widely considered to be the single largest investment into climate change in history, with potential ripple effects throughout the construction industry. The IRA allocates substantial funds for projects utilizing “low-carbon” materials, with an explicit focus on climate-conscious construction. This initiative aligns with the broader goal of curbing emissions from sectors like steel, concrete, and glass, which have been major contributors to the nation’s carbon footprint. Reprinted courtesy of Dominick Weinkam, Watt Tieder and Robert B. Cimmino, Watt Tieder Mr. Weinkam may be contacted at dweinkam@watttieder.com Mr. Cimmino may be contacted at rcimmino@watttieder.com Read the court decision
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Texas Mechanic’s Lien Law Update: New Law Brings a Little Relief for Subcontractors and a Lot of Relief for Design Professionals

June 07, 2021 — Tracey L. Williams - Peckar & Abramson, P.C.
After several recent failed attempts to amend Chapter 53 of the Texas Property Code (the “Texas Mechanic’s Lien Statute”), it appears that long awaited relief may, at least in part, be on the horizon for subcontractors in Texas. Additionally, architects, engineers, and surveyors also appear to be significant benefactors of House Bill 2237 (“HB 2237”). Under existing law, many subcontractors often fail to perfect their mechanic’s liens under the Texas Mechanic’s Lien Statute because of complex notice requirements which must be sent for every month in which labor or material are furnished. And architects, engineers and surveyors currently have no lien rights unless they have a direct contractual relationship with the owner of the project. Effective January 1, 2022, HB 2237 amends the Texas Mechanic’s Lien Statute in several significant respects. Subcontractor Impacts HB 2237 impacts subcontractors in the following ways:

Establishes uniformity in the notice requirements by imposing the same notice obligation on all subcontractors regardless of with whom they have contracted. Rather than sending one notice to the owner and one to the general contractor, the single notice now required must be sent to both simultaneously. Additionally, HB 2237 prescribes the form of the notice to be given under both Section 53.056 (notice of derivative claimant) and 53.057 (notice of contractual retainage).

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Reprinted courtesy of Tracey L. Williams, Peckar & Abramson, P.C.
Ms. Williams may be contacted at twilliams@pecklaw.com

Consumer Protections for California Residential Solar Energy Systems

September 25, 2018 — Robert A. James & Alexandra Brandt - Gravel2Gavel Construction & Real Estate Blog
It was already the case that in order to offer to install California residential solar energy systems, a contractor must be licensed by the California Contractors State License Board (CSLB) and must hold an appropriate specialty classification. Under AB 1070 enacted late last year (Chapter 662, Statutes of 2017), special consumer protections are being deployed for the benefit of homeowners. Those protections are steadily rolling out. Step one is the requirement of new Business & Professions Code (B&P Code) Section 7169 that, as of January 1, 2019, a disclosure document must be provided to consumers prior to sale and included on page 1 of the sale contract. The initial version of this document, which was developed by the CSLB and endorsed on August 23, 2018 by the California Public Utilities Commission (CPUC), is available here. The disclosure requirement doesn’t apply to systems included in new home construction. Reprinted courtesy of Robert A. James, Pillsbury and Alexandra Brandt, Pillsbury Mr. James may be contacted at rob.james@pillsburylaw.com Ms. Brandt may be contacted at alexandra.brandt@pillsburylaw.com Read the court decision
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English v. RKK- There is Even More to the Story

May 17, 2021 — Christopher G. Hill - Construction Law Musings
Just when you thought that the litigation between W. C. English and RKK had no more to give (after all, there have been posts with wisdom from this case here, here, and here), it keeps on giving. A relatively recent opinion from this litigation involved, among other pre-trial motions, motions by English to exclude expert witness testimony. English sought to exclude Defendant CDM Smith, Inc’s expert testimony relating to CDM’s standard of care, the replacement of the bridge deck, English’s failure to fire CDM, and additional contributing factors regarding the spacing of the reinforcing steel. English sought to exclude RKK’s expert opinion regarding English’s owed standard of care vis a vis VDOT. In evaluating these motions, the Court applied the following standard:

An expert qualified “by knowledge, skill, experience, training, or education, may testify “as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. However, such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles and methods,” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” [citations excluded here but stated in the opinion]

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments

May 13, 2014 — Mark Scheer and Brent Williams-Ruth – Scheer & Zehnder LLP
CASE: Miller v. Kenny, 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014). Snapshot Synopsis: $21 million bad faith consent judgment verdict upheld. $4.15 million underlying stipulated consent judgment was the “floor,” and additional damages allowed. ISSUES: 1. Can a jury award damages for an insurer’s bad faith in excess of the amount of the stipulated covenant judgment? YES 2. Can a trial court admit evidence of insurance liability reserves in a bad faith action? YES 3. *Note: Other evidentiary and procedural issues were addressed by the court in its decision but not analyzed in this summary* FACTS: This appeal arose out of an automobile accident on August 23, 2000. Patrick Kenny was driving a 1994 Volkswagen Passat owned by one of the passengers, when he rear-ended a cement truck. The accident severely injured his three passengers: Ryan Miller, Ashley Bethards, and Cassandra Peterson. Kenny was covered for liability under the insurance policy issued to Peterson's parents by Safeco Insurance Company. Safeco defended Kenny without a reservation of rights. Reprinted courtesy of Mark Scheer, Scheer & Zehnder LLP and Brent Williams-Ruth, Scheer & Zehnder LLP Mr. Scheer may be contacted at mscheer@scheerlaw.com; Mr. Williams-Ruth may be contacted at bwilliamsruth@scheerlaw.com Read the court decision
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Construction Defect Scam Tied to Organized Crime?

July 31, 2013 — CDJ STAFF
The Las Vegas Review-Journal reports that the initial tip-off came from Scott Canepa, a construction defect attorney who alerted the FBI about Leon Benzer’s activities in taking over homeowner boards. Canepa learned that Nancy Quon was taking part in the scheme and went to the FBI with the information. After FBI officials met with Canepa, they launched an investigation, which they named “Operation GrandMaster.” Although a Benzer associate stated that Benzer claimed not to have ties to organized crime, and according to the Review-Journal, “preferred to think of himself as ‘just a bully,’” the case involves connections to a number of figures with ties to organized crime. Benzer with associated with John V. Spilotro, a lawyer whose uncle was an alleged overseer for Chicago organized crime operating in Las Vegas in the 70s and 80s. Another conspirator, Paul Citelli, reportedly has ties to organized crime in Buffalo. Read the court decision
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Insurance Agent Sued for Lapse in Coverage after House Collapses

October 29, 2014 — Beverley BevenFlorez-CDJ STAFF
Property Casualty 360 reported a Hawaii case where the court ruled that an “insurance brokerage firm is responsible for the wrongful conduct of its employees, agents and independent contractors as long as they give the public the appearance that the individual is working as an agent of the brokerage.” The case involved a home that collapsed “during an attempted structural renovation.” The original insurance policy had lapsed, and the “application used to procure the second policy stated that there was no renovation work underway on the property, and thus contained a material misrepresentation which voided the second policy, the [homeowners] were left without insurance on the house.” Read the court decision
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