Corvette museum likely to keep part of sinkhole
June 26, 2014 —
Bruce Schreiner – BloombergA massive sinkhole that swallowed eight prized sports cars at the National Corvette Museum has become such a popular attraction that officials want to preserve it — and may even put one or two of the crumpled cars back inside the hole.
The board of the museum in Bowling Green, Kentucky, said Wednesday it is in favor of preserving a large section of the sinkhole that opened up beneath the museum in February. It happened when the museum was closed, and no one was injured.
What started as a tragedy has turned into an opportunity to lure more people off a nearby interstate to visit the museum, which struggled in prior years to keep its doors open, museum officials said.
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Bruce Schreiner, Bloomberg
No Collapse Coverage Where Policy's Collapse Provisions Deleted
July 26, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found there was no coverage for the homeowners' collapse claim because the collapse provisions were deleted from the policy. Gueng-Ho Kim v. State Farm Fire & Cas. Co., 2017 U.S. Dist. LEXIS 97871 (D. Conn. June 26, 2017).
The homeowners purchased their home in 2004. They also purchased a homeowners policy from State Farm. In the policy, State Farm deleted the additional coverage for collapse.Also deleted from the policy was language excluding coverage for "collapse, except as specifically provided in Section I - Additional Coverages, Collapse."
The homeowners discovered a problem with the property's foundation when they attempted to sell the house in 2014. The homeowners hired an engineer who found that the interior and exterior foundation had numerous spider-web cracks and the foundation walls in several locations bowed inward by as much as one and a half inches.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Arizona Purchaser Dwelling Actions Are Subject to a New Construction
September 04, 2019 —
William L. Doerler - The Subrogation StrategistArizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law.
Notice to Contractors and Proportional Liability
Under the revised law, a “Seller” who receives notice of a Purchaser Dwelling Action (PDA) from a residential dwelling purchaser pursuant to A.R.S. § 12-1363* has to promptly forward the notice to all construction professionals—i.e. architects, contractors, subcontractors, etc., as defined in A.R.S. § 12-1361(5)—that the Seller reasonably believes are responsible for an alleged construction defect. A.R.S. § 12-1363(A). Sellers can deliver the notice by electronic means. Once construction professionals are placed on notice, they have the same right to inspect, test and repair the property as the Seller originally placed on notice. A.R.S. § 12-1362(B), (C).
To the extent that the matter ultimately goes to suit, A.R.S. § 12-1632(D) dictates that, subject to Arizona Rules of Court, construction professionals “shall be joined as third-party defendants.” To establish liability, the purchaser has the burden of proving the existence of a construction defect and the amount of damages. Thereafter, the trier of fact determines each defendant’s or third-party defendant’s relative degree of fault and allocates the pro rata share of liability to each based on their relative degree of fault. However, the seller, not the purchaser, has the burden of proving the pro rata share of liability for any third-party defendant. A.R.S. § 12-1632(D).
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
An Occurrence Under Builder’s Risk Insurance Policy Is Based on the Language in the Policy
April 03, 2023 —
David Adelstein - Florida Construction Legal UpdatesBuilder’s risk insurance coverage is a vital property insurance coverage during the course of construction. Builder’s risk insurance is not a one-size-fits-all product so please make sure you are working with your insurance broker to procure this product that factors in and covers risk associated with the project.
Builder’s risk insurance is typically an occurrence-based policy. No different than other occurrence-based policies (such as commercial general liability), a dispute may arise as to the occurrence. This could be due to the triggering of the actual policy during the coverage period or it could be due deductible obligations, as in the case discussed below. When dealing with a builder’s risk insurance policy–again, no different than any policy–the language in the policy matters. Definitions used in the policy to define specific terms matter and, in numerous cases, the ordinary dictionary meanings of terms matter. But it all starts with the policy language.
In KT State & Lemon, LLP v. Westchester Fire Insurance Co., 2023 WL 2456499 (M.D.Fla. 2023), a builder’s risk policy provided coverage from April 2018 through the end of November 2019. There was a $50,000 per occurrence deductible for loss caused by or from water damage. An extension to the builder’s risk policy was negotiated through the end of January 2020 that increased this water damage deductible to $250,000 per occurrence. During construction and the testing of the fire suppression (sprinkler) system, leaks started to occur resulting in water damage. Two leaks occurred in September 2019, one leak in October 2019, one leak in November 2019, and two leaks in December 2019 (during the extension and higher water damage deductible period).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
New Orleans Reviews System After Storm Swamps Pumps
August 17, 2017 —
Pam Radtke Russell - Engineering News-RecordThe city of New Orleans will hire an independent team of engineers to evaluate the problems that led to severe flooding following an Aug. 5 rainfall of up to 10 in. The decision followed the revelation that 16 of the city’s pumps were not working, despite claims the system was at capacity. Further, the power system that operates those pumps was severely crippled.
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Pam Radtke Russell, ENRMs. Russell may be contacted at
Russellp@bnpmedia.com
Do We Really Want Courts Deciding if Our Construction Contracts are Fair?
March 19, 2015 —
Christopher G. Hill – Construction Law MusingsAs I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would
essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction.
Of course, as soon as I posted last week, my friend and colleague
Scott Wolfe (@scottwolfejr) commented on that post and then
gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or
discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that
you should read your contracts carefully because they will be the law of your business relationship in the future.
The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.”
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Rainwater Collecting on Rooftop is not Subject to Policy's Flood Sublimits
October 15, 2024 —
Tred R. Eyerly - Insurance Law HawaiiResponding to a certified question from the First Circuit, the Supreme Judicial Court of Massachusetts determined that rainwater collecting on the insureds' rooftop and causing interior damage was not "flood" as defined in the policy and subject to sublimits. Zurich Am. Ins. Co. v. Medical Properties Trust, Inc., 2024 Mass. LEXIS ___ (Mass. July 23, 2024).
A severe thunderstorm caused heavy rain and strong winds which damaged a hospital. The hospital was owned by Medical Properties Trust, Inc. (MPT) and leased to Steward Health Care System LLC (Steward). Ground water accumulated and flooded the basement. Rainwater also accumulated on the hospital's parapet roofs and on the second-story courtyard, and eventually seeped through the parapet roofs and courtyard to the hospital's upper floors, causing damage to the building and property within.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Breaking The Ice: A Policyholder's Guide to Insurance Coverage for Texas Winter Storm Uri Claims
August 30, 2021 —
Kelly A. Johnson - Saxe Doernberger & Vita, P.C.The devastating extreme cold weather event in Texas often referred to as Winter Storm Uri, which lasted from February 14 to February 18, 2021, caused significant damages to homes and businesses in the region. Temperatures during the winter storm were the coldest on record since 1883, with some areas reaching as low as negative 6 degrees.4 Millions of Texans were impacted and many lives were lost.
Insurance analysts predict that Uri will lead to the largest number of insurance claims in the state, totaling $20 billion in claimed losses.5 In fact, Uri is set to surpass Hurricane Harvey as the most devastating natural disaster in Texas, which resulted in $19 billion in insured losses. Further, Uri will be the largest insured loss from a United States winter storm in the industry’s history.6
The catastrophic Uri losses range from damage to property caused by the bursting of frozen pipes, collapsed roofs, weakened structures, loss of power, lack of public utility services, and the expenses incurred in the disruption of normal business operations. In addition, some commercial businesses were unable to operate due to bad weather conditions on the roads, while others were forced to halt operations due to power outages.
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Kelly A. Johnson, Saxe Doernberger & Vita, P.C.Ms. Johnson may be contacted at
KJohnson@sdvlaw.com
