25 Days After Explosion, Another Utility Shuts Off Gas in Boston Area
October 30, 2018 —
Johanna Knapschaefer - Engineering News-RecordThree hundred thirty-nine homes in Woburn, Mass., were without power on Oct. 8 after National Grid shut off gas meters following the inadvertent over-pressurization of the natural gas line on Oct. 8, according to the Woburn Fire Dept.
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Johanna Knapschaefer, ENRENR may be contacted at
ENR.com@bnpmedia.com
NY Court Holds Excess Liability Coverage Could Never be Triggered Where Employers’ Liability Policy Provided Unlimited Insurance Coverage
February 28, 2018 —
Theresa A. Guertin and Samantha M. Martino - SDV Blog In a potentially significant development in New York insurance law, a recent appellate level decision held that an excess liability policy was not obligated to provide coverage where the underlying employer’s liability policy provided unlimited coverage pursuant to New York regulations.
The
Arthur Vincent & Sons Construction, Inc. v. Century Surety Insurance Co.1 case arose out of an underlying wrongful death claim. Fordham University hired Arthur Vincent and Sons Construction, Inc. (“AVSC”) to install a new roof on its Lewis Calder Center. As is typical of most construction contracts, AVSC agreed to indemnify the University against any claims arising out of its negligence, and to name the University as an additional insured on its commercial general liability policy. AVSC was insured by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insur¬ance Company (“CIIC”); (2) a primary CGL policy issued by Century Surety Insurance Company (“Century”); and (3) an excess liability policy issued by Admiral Insurance Company (“Admiral”).
Reprinted courtesy of
Theresa A. Guertin, Saxe Doernberger & Vita, P.C. and
Samantha M. Martino, Saxe Doernberger & Vita, P.C.
Ms. Guertin may be contacted at tag@sdvlaw.com
Ms. Martino may be contacted at smm@sdvlaw.com
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Study Finds San Francisco Bay is Sinking Faster than Expected
July 15, 2019 —
Alan Rider - Engineering News-RecordAll coastal cities in the U.S. face some potential threat from sea-level rise, but areas around San Francisco Bay may be more vulnerable than previously thought according to a recent study by Arizona State University’s Manoochehr Shirzaei and UC Berkley’s Roland Bürgmann published in the peer-reviewed journal Science Advances.
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Alan Rider, ENRENR may be contacted at
ENR.com@bnpmedia.com
OSHA: What to Expect in 2022
December 20, 2021 —
Stephen E. Irving - Construction ExecutiveCOVID-19 created great upheaval throughout the economy and the legal compliance world as well. The pandemic has been a great disruptor and has brought rules, regulations and related agency guidance that have served to overwhelm even the most conscientious and attentive employer. The welcomed arrival of COVID-19 vaccines, and now the perhaps less welcome OSHA vaccine mandate, simply add to an employer’s compliance burden.
While OSHA is busy attempting to implement its vaccine/testing mandate, it also has numerous other significant matters in the works of which employers in the construction industry should be aware. These include new rule drafting and several national and regional emphasis programs, which illustrate OSHA’s current priorities.
1. The Vaccine Mandate
Pursuant to a directive from President Biden, in October 2021, OSHA issued an emergency temporary standard implementing a mandate for all employers with more than 100 employees. This mandate requires that employees of such employers be vaccinated for COVID-19 or submit to regular testing. OSHA has also expressed interest in issuing a permanent standard and potentially expanding to include smaller employers.
Reprinted courtesy of
Stephen E. Irving, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Insurer's Motion in Limine to Dismiss Case for Lack of Expert Denied
June 26, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe court denied the insurer's motion in limine seeking to dismiss the insureds' complaint due to the absence of expert testimony. Fabozzi v. Lexington Ins. Co., 2014 U.S. Dist. LEXIS 74069 (E.D. N.Y. May 30, 2014).
During the policy period, the insureds noticed their house had serious structural problems, including cracks in the walls and floors that were pitched toward the rear of the house. The insureds had to move from their house. When they submitted a claim, it was denied by Lexington because the losses were caused by "wear and tear, deterioration, earth movement, settlement, shrinking, bulging or expansion of the property leading to cracking of structural components."
The insureds sued. Lexington filed a motion in limine to preclude the testimony of the insureds' expert and to dismiss the complaint for inability to offer prima facie proof of a covered loss absent such expert testimony.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Foreman in Fatal NYC Trench Collapse Gets Jail Sentence
December 21, 2016 —
Mary B. Powers – Engineering News-RecordWilmer Cueva, a construction foreman for Queens, N.Y.-based excavation subcontractor Sky Materials, was sentenced on Dec. 15 to up to three years in prison for causing the death of 22-year-old worker Carlos Moncayo, and endangering other workers at a lower Manhattan retail project site. Manhattan District Attorney Cyrus Vance said the workers were in an unprotected 13-ft trench that collapsed in 2015.
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Mary B. Powers, Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
THE CALIFORNIA SUPREME COURT HAS RULED THAT THE RIGHT TO REPAIR ACT (SB800) IS THE EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS NOT INVOLVING PERSONAL INJURIES WHETHER OR NOT THE UNDERLYING DEFECTS GAVE RISE TO ANY PROPERTY DAMAGE in McMillin Albany LL
January 24, 2018 —
Chapman, Glucksman, Dean, Roeb, & BargerRICHARD H. GLUCKSMAN, ESQ.
GLENN T. BARGER, ESQ.
JON A. TURIGLIATTO, ESQ.
DAVID A. NAPPER, ESQ.
The Construction Industry finally has its answer. The California Supreme Court ruled that the Right to Repair Act (SB800) is the exclusive remedy for construction defect claims alleged to have resulted from economic loss, property damage, or both. Our office has closely tracked the matter since its infancy. The California Supreme Court’s holding resolves the split of authority presented by the Fifth Appellate District’s holding in
McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which outright rejected the Fourth Appellate District’s holding in
Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.
By way of background, the Fourth District Court of Appeal held in
Liberty Mutual that compliance with SB800’s pre-litigation procedures prior to initiating litigation is only required for defect claims involving violations of SB800’s building standards that have not yet resulted in actual property damage. Where damage has occurred, a homeowner may initiate litigation under common law causes of action without first complying with the pre-litigation procedures set forth in SB800. Two years later, the Fifth District Court of Appeal, in
McMillin Albany, held that the California Legislature intended that all claims arising out of defects in new residential construction sold on or after January 1, 2003 are subject to the standards and requirements of the Right to Repair Act, including specifically the requirement that notice be provided to the builder prior to filing a lawsuit. Thus, the Court of Appeal ruled that SB800 is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003.
After extensive examination of the text and legislative history of the Right to Repair Act, the Supreme Court affirmed the Fifth District Court of Appeal’s ruling that SB800 preempts common law claims for property damage. The Complaint at issue alleged construction defects causing both property damage and economic loss. After filing the operative Complaint, the homeowners dismissed the SB800 cause of action and took the position that the Right to Repair Act was adopted to provide a remedy for construction defects causing only economic loss and therefore SB800 did not alter preexisting common law remedies in cases where actual property damage or personal injuries resulted. The builder maintained that SB800 and its pre-litigation procedures still applied in this case where actually property damages were alleged to have occurred.
The Supreme Court found that the text and legislative history reflect a clear and unequivocal intent to supplant common law negligence and strict product liability actions with a statutory claim under the Right to Repair Act. Specifically the text reveals “…an intent to create not merely
a remedy for construction defects but
the remedy.” Additionally certain clauses set forth in SB800 “…evinces a clear intent to displace, in whole or in part, existing remedies for construction defects.” Not surprisingly, the Court confirmed that personal injury damages are expressly not recoverable under SB800, which actually assisted the Court in analyzing the intent of the statutory scheme. The Right to Repair Act provides that construction defect claims not involving personal injury will be treated the same procedurally going forward whether or not the underlying defects gave rise to any property damage.
The Supreme Court further found that the legislative history of SB800 confirms that displacement of parts of the existing remedial scheme was “…no accident, but rather a considered choice to reform construction defect litigation.” Further emphasizing how the legislative history confirms what the statutory text reflects, the Supreme Court offered the following summary: “the Act was designed as a broad reform package that would substantially change existing law by displacing some common law claims and substituting in their stead a statutory cause of action with a mandatory pre-litigation process.” As a result, the Supreme Court ordered that the builder is entitled to a stay and the homeowners are required to comply with the pre-litigation procedures set forth in the Right to Repair Act before their lawsuit may proceed.
The seminal ruling by the California Supreme Court shows great deference to California Legislature and the “major stakeholders on all sides of construction defect litigation” who participated in developing SB800. A significant win for builders across the Golden State, homeowners unequivocally must proceed via SB800 for all construction defect claims arising out of new residential construction sold on or after January 1, 2003. We invite you to contact us should you have any questions.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard Glucksman,
Glenn Barger,
Jon Turigliatto and
David Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Barger may be contacted at gbarger@cgdrblaw.com
Mr. Turgliatto may be contacted at jturigliatto@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Taylor Morrison Home Corp’ New San Jose Development
October 15, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Silicon Valley Business Journal reported that Taylor Morrison Home Corp has made the “biggest land acquisition so far in San Jose” after acquiring “an 8-acre chunk of dirt in the developing Montecito Vista area where it has plans to build out 184 townhomes.”
The developer “paid about $32.5 million, or roughly $176,600 per buildable unit, for the land, according to public tax records,” according to the Silicon Valley Business Journal. Construction is scheduled to begin November of 2015 and models should be ready by April of 2016.
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