Protect Workers From Falls: A Leading Cause of Death
August 14, 2018 —
Mark McGhiey - Construction ExecutiveOne of the leading causes of death for construction workers is falls from elevated surfaces, according to the Bureau of Labor Statistics. In 2016, these accidents accounted for more than 30 percent of all construction fatalities. The top four causes of worker deaths (excluding highway collisions) in the private sector construction industry are:
- falls: 384 (38.7%);
- struck by object: 93 (9.4 percent);
- electrocutions: 82 (8.3 percent); and
- caught-in/between:1 72 (7.3 percent).
One of the most common — and costly — causes of claims occur when construction workers fall from elevated surfaces. These accidents represent more than 30 percent of all construction claim payments.
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Mark McGhiey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Judge Sentences Roofing Contractor Owner in Florida PPP Fraud Case
July 25, 2021 —
Richard Korman - Engineering News-RecordA federal judge in Fort Myers, Fla., sentenced Casey David Crowther, 35, the owner of a successful Florida roofing contracting company, to 37 months in prison for using fictitious employee lists to obtain a $2.7-million federal pandemic-aid loan and then purchasing a $689,000 boat with the funds.
Reprinted courtesy of
Richard Korman, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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SB800 CONFIRMED AS EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS
January 24, 2018 —
Jeffrey Brower and Nathan Owens - Newmeyer & Dillion, LLPIn
McMillin Albany LLC v. Superior Court (Cal. Ct. App., Aug. 26, 2015) 2015 Daily Journal D.A.R. 9931 (“
McMillin”), the Fifth Appellate District Court of Appeal in California published a resounding win for builders, general contractors, and others entities seeking the protections of the Right to Repair Act, Civil Code sections 895, et seq. (“SB800”). The
McMillin Court firmly rejected the reasoning and outcome of both
Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 (“
Liberty Mutual”) and
Burch v. Superior Court (2014) 223 Cal.App.4th 1411 (“
Burch”), and held that:
the Legislature intended that all claims arising out of defects in residential construction, involving new residences sold on or after January 1, 2003 (§ 938), be subject to the standards and the requirements of the Act; the homeowner bringing such a claim must give notice to the builder and engage in the prelitigation procedures in accordance with the provisions of Chapter 4 of the Act prior to filing suit in court.
(
McMillin, Opinion, p. 15.) The
McMillin Court further held that even if the claimant’s counsel intentionally pleads around SB800 by asserting only tort causes of action, SB800 still applies to all defect claims and a stay of the action to require SB800 compliance is appropriate.
Newmeyer & Dillion has strongly supported builders’ efforts to enforce the Right to Repair Act since its inception. The firm filed an amicus brief in
McMillin on behalf of Leading Builders of America (“LBA”), an association of the leading residential homebuilders in the United States. For years, LBA members developed their warranty and dispute resolution procedures according to the Right to Repair Act and performed prelitigation repairs to the satisfaction of thousands of homeowners.
Liberty Mutual and
Burch undermined the Right to Repair Act by allowing plaintiffs’ attorneys to circumvent the prelitigation procedures to the detriment of homeowners and builders, resulting in confusion and increased litigation. The
McMillin decision breathes new life into the Right to Repair Act and sets the stage for future review by the California Supreme Court.
The
McMillin Court focused on the express language of the Right to Repair Act to arrive at its conclusion that Civil Code sections 896, 897, 943 and 944 demonstrate a clear Legislative intent to occupy the field of construction defect litigation – a belief held by nearly all in the construction industry and the California Superior Courts before
Liberty Mutual. The
McMillin Court found further support for SB800’s comprehensive nature in the Legislative history, which consistently described the Act as “groundbreaking reform” and a “major change” in construction defect litigation, designed to “significantly reduce the cost of construction defect litigation and make housing more affordable.” (
McMillin, Opinion, pp. 18-19.) The
McMillin Court found it inescapable that the Right to Repair Act exclusively governs construction defect litigation involving homes sold on or after January 1, 2003.
The
McMillin, decision will have a significant impact on construction litigation moving forward in two respects. First,
McMillin, is the only appellate decision to date to address whether a builder has the right to enforce SB800 when the claimant’s counsel deliberately attempts to plead around SB800 by asserting only tort claims. Second, the decision provides trial courts with the authority and precedent to ensure compliance with the Right to Repair Act. Trial courts may also find it necessary to revisit prior rulings against builders that relied on
Liberty Mutual.
Newmeyer & Dillion will continue to advocate in support of builders and general contractors by working vigorously to gain further support for the
McMillin, decision and setting the stage for review by the California Supreme Court.
Jeffrey R. Brower is an associate at the Newport Beach office of Newmeyer & Dillion, LLP. His practice focuses on business and construction litigation. Jeffrey can be reached at jeffrey.brower@ndlf.com.
Nathan Owens is the managing partner of the Las Vegas office for Newmeyer & Dillion, LLP. He represents businesses and individuals operating in a wide array of economic sectors including real estate, construction, insurance and health care in all stages of litigation in state and federal court. Nathan can be reached at nathan.owens@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit
www.ndlf.com
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The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part One: Coverage, Exposure, and Losses
August 22, 2022 —
Michael Kopit - Lewis Brisbois(August 10, 2022) - The Russia-Ukraine conflict has far-reaching implications for the insurance industry and for insurers and insureds alike. Many corporate policy holders around the world have withdrawn or scaled back operations with Russia and/or Russian-based corporations. In doing so, the corporate policy holders left behind property, assets, and inventory in Russia and/or suffered losses in revenue. Corporate policy holders are looking to their insurers to offset the losses. It is estimated that the insurance and reinsurance markets could face losses at nearly $20 billion. S&P Global predicts that losses could reach $35 billion. Additionally, the conflict in Ukraine creates uncertainty for insurers on how to navigate the influx of claims, especially from the cybersecurity sector.
A key issue with the rise in claims is coverage. The general rule is that coverage under a policy for any loss must be evaluated by considering the policy language, the law applicable to the governing jurisdiction, and the facts surrounding the loss. Many policies contain a “war exclusion” clause, which can exclude property losses resulting from acts of war or governmental instability. However, corporate policy holders may have Political Risk Insurance, which can provide coverage for losses for items such as damaged property, seized property, and lost assets at a time of political turmoil or war. Even if a policy has Political Risk Insurance, it does not guarantee payout. Careful analysis of the policy language and facts surrounding the loss must still take place. For example, in the event of property claims, an insurer must still determine whether the loss is related to the conflict and/or whether the subject property was voluntarily abandoned or seized.
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Michael Kopit, Lewis BrisboisMr. Kopit may be contacted at
Michael.Kopit@lewisbrisbois.com
Insurer Ordered to Participate in Appraisal
March 27, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that the insured's request for an appraisal was timely and ordered the insurer to participate. Cloisters of Naples, Inc v. Landmark Am. Ins. Co., 2023 U.S. Dist. LEXIS 6884 (M.D. Flag. Jan. 13, 2023).
A hurricane damaged Cloisters, a condominium. Cloisters made a claim under its commercial insurance policy with Landmark. Landmark acknowledged coverage but failed to pay what Cloisters thought was needed. Cloisters sued.
The policy had a standard appraisal provision, but another clause had a suit litigation provision requiring a request for appraisal within two years after physical loss to the property. The dispute was whether Florida law, allowing appraisal clauses to be valid for 130 years, or Georgia law, which had no such extension on requesting an appraisal. Landmark contended the contract was formed in Georgia, so its law should apply. Florida followed the lure of lex loci, which provided that the law of the jurisdiction where the contract was executed governed.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Don’t Be Lazy with Your Tenders
October 24, 2022 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogOur clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical provisions. Tenders demanding defense and indemnity are strictly interpreted based on what the contract documents require. Getting tenders wrong can result in losing one of the most significant risk-shifting tools in the contract. It can also be a monumental mistake if insurance coverage for indemnification damages and defense costs are lost because of an inadequate tender.
The legal definition of “tender” is simple; it is “[a]n unconditional offer of money or performance to satisfy a debt or obligation.” Black’s Law Dictionary 1479-80 (7th ed. 1999). Whereas “tender of defense” for insurance is “the act in which one party places its defense and all costs associated with said defense with another due to a contract or other agreement … [which] transfers the obligation of the defense and possible indemnification to the party to which the tender was made.” Int’l Risk Mgmt. Inst., Glossary. Thus, when claims arise on your projects, notice by tenders of defense and indemnity will often determine dispute resolution and available insurance proceeds.
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Rick Erickson, Snell & WilmerMr. Erickson may be contacted at
rerickson@swlaw.com
Assignment of Construction Defect Claims Not Covered
April 20, 2017 —
Tred R. Eyerly - Insurance Law HawaiiAssignment of insurance proceeds as part of a settlement against the subcontractor for faulty workmanship was not covered under the CGL policy in accordance with Illinois law. Allied Prop. & Cas. Ins Co v. Metro North Condominium Assoc., 2017 U.S. App. LEXIS 4107 (7th Cir. March 8, 2017).
Metro North Condominium Association hired a developer to build a condominium. The developer used CSC Glass to install the building's windows. CSC installed the windows defectively, causing the building to sustain significant water damage following a rain storm.
Metro North sued the developer, who turned out to be insolvent. Metro North amended its complaint to add a claim against CSC for breach of the implied warranty of habitability. Metro North eventually dismissed its lawsuit in exchange for an assignment of CSC's policy with Allied and payment of any right to $700,000 worth of insurance coverage. The settlement specified that it was not intended to compensate Metro North for the cost of repairing or replacing CSC's defectively installed windows, but rather for the damage to the remaining parts of Metro North's condominium.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Falls Requiring Time Off from Work are Increasing
January 14, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Safety News Alert reported that while “overall occupational injuries that require time off from work” have decreased, other injuries, such as falls, have increased, according to findings from the Bureau of Labor Statistics (BLS) annual report.
“The rate of falls on the same level increased to 15.4 in 2013 from 14.8 in 2012, with increases in construction, wholesale trade, and transportation and warehousing,” Safety News Alert wrote. Furthermore, “Incidence rates and counts for private sector heavy and tractor-trailer truck drivers and food preparation workers increased in 2013.”
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