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DIRECTORY AND CAPABILITIES

Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court

June 21, 2021 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In the recent case of Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.” 5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

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Insurer's Refusal to Consider Supplemental Claim Found Improper

June 17, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventy Circuit reversed the district court's finding that the insurer had properly rejected the insured's supplemental claim. Great Lakes Ins. SE v. Concourse Plaza A Condomiium Association, Inc., 2024 U.S. App. LEXIS 8958 (11th Cir. April 15, 2024). On September 10, 2017, Hurrican Irma struck Concourse Plaza's building, causing wind and water damage. Great Lakes sent a adjuster to inspect the property. The adjuster found damages to the building were $31,035.21, well below the policy's deductible. Accordingly, Great Lakes advised that the net amount of the claim was zero. Concourse Plaza responded on September 4, 2020, just shy of three years after the cliam accured. Concourse Plaza disputed the damages estimate, but did not include a competing estimate. The letter said an estimate was being prepared and Great Lakes should consider the letter as notice of the intent to pursue additional benefits for the loss pursuant to the policy's notice provisions and Florida law. 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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The Risk of A Fixed Price Contract Is The Market

August 03, 2022 — David Adelstein - Florida Construction Legal Updates
When performing work on a fixed price or unit, there is risk that is being assumed on your end. One risk is the market. You are ultimately banking on the fact that the market is not going to make your fixed prices unprofitable. That’s not an unforeseeable occurrence because the market shifts and that shift can have a negative ripple effect. In a recent case out of the Federal Circuit, U.S. Aeroteam, Inc. v. U.S., 2022 WL 243176 (Fed.Cir. 2022), this market risk played a role in a fixed price contract. Here, a contractor was hired by the federal government to produce ground support trailers. A key component of these trailers was a running gear. The contractor relied on a vendor for these running gears. Due to financial difficulties, the vendor had to raise its unit price for the running gears. Based on the increased price, the contractor elected to manufacture the running gears itself. The contractor asked the government if this was ok and the government approved the request. Once the contractor started manufacturing these running gears, it had an “awe” moment – the manufacturing costs were higher than anticipated. The contractor submitted a request for equitable adjustment which the government denied. The Contractor than sued the government raising three arguments to support its entitlement to additional costs: (1) constructive change; (2) cardinal change; and (3) commercial impracticability. The contractor lost on all arguments. It probably should have lost on all arguments. 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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Haight Welcomes New Attorneys to Los Angeles, Sacramento and San Francisco

October 07, 2019 — Haight Brown & Bonesteel
Haight Brown & Bonesteel is happy to announce the addition of new attorneys to our Los Angeles, Sacramento and San Francisco offices.

• Alexandra Angel – Los Angeles: Alexandra is a member of the firm’s Business Solutions, General Liability and Transportation Law Practice Groups. Her practice focuses on a variety of civil litigation matters involving premises liability, personal injury, judgment collection, breach of contract, and landlord-tenant. Her clients have included individual private clients, international property management companies, national and local real estate investment companies, a large car finance company, and local businesses.
• Josh Maltzer – San Francisco: Josh is a partner in the firm’s Construction Law, General Liability and Risk Management & Insurance Law Practice Groups. He is a seasoned civil litigator who focuses his practice on construction defect, general liability and insurance coverage. Josh is an experienced trial attorney who has litigated matters in state and federal courts throughout California and in Arizona, Washington and Wyoming. He has represented business owners, property managers, developers, real estate purchasers and public housing agencies in matters that resulted in millions of dollars in insurance recovers, judgments and settlements for his client.

Reprinted courtesy of Haight Brown & Bonesteel attorneys Alexandra Angel, Josh A. Maltzer, Philip E. McDermott, Patrick F. McIntyre, Evan M. Reese, and Amanda F. Riley Ms. Angel may be contacted at aangel@hbblaw.com Mr. Maltzer may be contacted at jmaltzer@hbblaw.com Mr. McDermott may be contacted at pmcdermott@hbblaw.com Mr. McIntyre may be contacted at pmcintyre@hbblaw.com Mr. Reese may be contacted at ereese@hbblaw.com Ms. Riley may be contacted at ariley@hbblaw.com Read the court decision
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Construction Workers Face Dangers on the Job

November 18, 2011 — CDJ STAFF

OSHA calculates that for each 33,000 active construction workers, one will die on the job each year, making their risk over the course of their careers at one out of every 200 workers. This puts it many times over OSHA’s definition of “significant risk” of 1 death per 1,000 workers over the course of their careers. According to an article in People’s World, “the main risk of death is from falls.”

At a talk at the American Public Health Association’s meeting, one expert noted that “construction workers make up 6 percent to 8 percent of all workers, but account for 20 percent of all deaths on the job every year.”

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Another Guilty Plea In Nevada Construction Defect Fraud Case

April 25, 2012 — CDJ STAFF

The eleventh defendant has entered a guilty plea in the ongoing federal investigation of construction defect fraud in the Las Vegas area. Mahin Quintero plead guilty to producing a false authentication feature, a misdemeanor. Ms. Quintero’s part in the scheme was to falsely authenticate signatures on loan documents for straw buyers. Ms. Quintero stated in court that she had been ordered to destroy her notary book three years ago. According to her plea bargain, the straw buyers did not appear in front of her when she notarized their signatures. As part of the scheme, the straw buyers would take control of homeowners associates, sending construction defect complaints and repairs to favored firms.

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Condominium Exclusion Bars Coverage for Construction Defect

August 17, 2011 — Tred R. Eyerly - Insurance Law Hawaii

Coverage was denied under the policy’s condominium exclusion in California Traditions, Inc. v. Claremont Liability Ins. Co.,2011 Cal. App.LEXIS912 (Cal. Ct. App., ordered published July 11, 2011).



California Traditions was the developer and general contractor for a housing development. California Traditions subcontracted with Ja-Con to perform the rough framing work for 30 residential units. The project had 146 separate residences that were freestanding with no shared walls, roof, halls, or plumbing or electrical lines. To allow a higher density development, the project was developed, marketed and sold as condominiums.



The purchaser of one of the units filed a complaint against California Traditions alleging property damage from the defective construction. California Traditions cross-complained against Ja-Con.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Do Change Orders Need to be in Writing and Other Things That Might Surprise You

June 02, 2016 — Garret Murai – California Construction Law Blog
You’ve likely heard it before or maybe you’ve even said it yourself: “Go ahead and get started, we’ll get you a change order later.” The only thing is, “later” never happens, and after you’ve finished performing the work you find yourself in a fight over whether you’re entitled to get paid for the work you performed. So, do you need a written change order to get paid for extra work you performed? Read on, you may be surprised. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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