New NEPA Rule Restores Added Infrastructure Project Scrutiny
May 10, 2022 —
Pam McFarland - Engineering News-RecordThe White House Council on Environmental Quality has finalized a regulation that restores basic project environmental review practices that were in place prior to changes made during the Trump administration. The rule is the first of two that will have the Biden administration’s stamp on how such reviews are done under the National Environmental Policy Act (NEPA) for major federal construction projects.
Reprinted courtesy of
Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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Insurance Coverage for COVID-19? Two N.J. Courts Allow Litigation to Proceed
March 06, 2022 —
Bethany L. Barrese - Saxe Doernberger & Vita, P.C.Courts across the nation have struggled to determine whether insurance policies that provide coverage for “direct physical loss or damage” insure losses stemming from COVID-19. Many courts have been applying an overly stringent pleading standard, inappropriately granting insurers’ motions to dismiss as a result of the insureds’ purported failure to allege that COVID-19 caused damages covered by their policies or because certain exclusions supposedly barred coverage. However, two New Jersey state courts recently decided these issues in favor of the insureds in well-reasoned opinions that give proper deference to procedural pleading standards and substantive insurance coverage law.
A. COVID-19 causes “direct physical loss or damage”
In AC Ocean Walk, LLC v. American Guarantee and Liability Ins. Co., the New Jersey Superior Court held that physical alteration to an insured’s property is not a prerequisite to coverage for losses due to COVID-19. The insured, Ocean Casino, sued multiple insurers for COVID-19 losses, alleging that the virus caused Ocean Casino to shut down and suffer a loss of use of its property. Looking at the language of the policies, the court explained that each policy’s insuring agreement substantially read the same:
“This policy insures against direct physical loss of, or damage caused by, a covered cause of loss to covered property, at an insured location [the casino] … subject to the terms, conditions, and exclusions stated in this policy.”
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Bethany L. Barrese, Saxe Doernberger & Vita, P.C.Ms. Barrese may be contacted at
BBarrese@sdvlaw.com
Golden Gate Bridge's $76 Million Suicide Nets Near Approval
June 30, 2014 —
Alison Vekshin – BloombergOfficials of the agency that runs San Francisco’s Golden Gate Bridge today approved a $76 million funding plan to erect a suicide barrier along the span, where people plunge to their deaths at a rate of about once a week.
The Golden Gate Bridge Highway and Transportation District’s 19-member board voted unanimously to approve the funding, which includes $20 million from district reserves.
“We must fight mental illness on many fronts and this budget action is a critical component of saving the lives of people who might not see that their brightest days are ahead of them,” Senator Mark Leno, a Democrat from San Francisco, said in a news release yesterday ahead of the meeting.
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Alison Vekshin, BloombergMs. Vekshin may be contacted at
avekshin@bloomberg.net
Water Seepage, Ensuing Mold Damage Covered by Homeowner's Policy
August 13, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe appellate court reversed the trial court's determination that the policy covered only mold damage, but not damage caused by water seepage. Henderson v. Georgia Farm Bureau Mut. Ins. Co., 2014 Ga. App. LEXIS 539 (Ga. Ct. App. July 16, 2014).
The homeowner's policy covered losses caused by constant seepage or leakage of water or the presence of condensation or moisture over a period of time. The insureds also paid for additional coverage for "ensuing mold . . . caused by or resulting from" one of the covered risks, including water seepage.
Ms. Henderson discovered a puddle of water in her kitchen and contacted Georgia Farm Bureau. The insurer's contractor tore out a section of the floor, but found no other problems of water seepage. Later, the Hendersons removed another part of the floor and discovered standing water and black mold underneath. The Hendersons had to vacate their house for one year.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Top 10 Cases of 2019
February 10, 2020 —
Jeffrey J. Vita, Grace V. Hebbel & Andrew G. Heckler - Saxe Doernberger & Vita, P.C.In the 2019 edition of SDV’s Top Ten Insurance Cases, we probe wiretapping claims under an armed security services policy, delicately sniff out E&O coverage for a company using cow manure to create electricity, scour the earth for coverage for crumbling foundation claims, and inspect D&O policies for government investigation coverage. In addition, we preview some important and exciting decisions due in 2020. Without further ado, SDV raises the curtain on the most informative and influential insurance
coverage decisions of 2019.1
1.
ACE American Ins. Co. v. American Medical Plumbing, Inc.,
206 A.3d 437 (N.J. Super. Ct. App. Div. 2019)
April 4, 2019
Is waiver of subrogation language in a standard AIA201 contract sufficient to bar an insurer’s subrogation rights?
The New Jersey Supreme Court held that it was. Equinox Development obtained a comprehensive blanket all-risk policy with limits of $32 million per occurrence from ACE American Ins. Co. (“ACE”). The policy covered Equinox’s new project in Summit, New Jersey. Equinox hired Grace Construction as GC, who in turn subcontracted the plumbing scope of work to American Medical Plumbing, Inc. (“American”). After completion of the work under the subcontract, a water main failed and flooded the entire project. ACE paid the limits of the policy and subrogated against American to recover its losses. American argued that there was a waiver of subrogation in the AIA201 contract that barred the suit. ACE challenged the validity of the AIA provision, arguing that it applied only to claims before completion of construction and that it only applied to damage to the work itself and not to adjacent property. The court rejected both arguments, finding that the AIA provision effectively barred ACE’s subrogation claim. This decision provides guidance on a frequently used contract form for contractors across the country.
Reprinted courtesy of Saxe Doernberger & Vita, P.C. attorneys
Jeffrey J. Vita,
Grace V. Hebbel and
Andrew G. Heckler
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. Hebbel may be contacted at gvh@sdvlaw.com
Mr. Heckler may be contacted at agh@sdvlaw.com
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Client Alert: Restaurant Owed Duty of Care to Driver Killed by Third-Party on Street Adjacent to Restaurant Parking Lot
January 07, 2015 —
R. Bryan Martin, Lawrence S. Zucker II, & Kristian B. Moriarty – Haight, Brown, & Bonesteel, LLPIn Annocki v. Peterson Enterprise, LLC, (Filed 11/14/2014, Certified for Publication 12/5/2014, No. B251434) the Court of Appeal, Second District, held a restaurant owed a duty of care to the driver of a motorcycle who died as a result of the negligent driving of a third party exiting the restaurant’s parking lot.
Decedent, Joseph M. Annocki, was driving his motorcycle on Pacific Coast Highway in Malibu, when it collided with the vehicle operated by Terry Allen Turner, who was exiting the parking lot of “Geoffrey’s" restaurant, which was owned and operated by the Defendant, Peterson Enterprise, LLC (“Peterson”).
The parents of the decedent (“Plaintiffs”) filed suit against Peterson, alleging Peterson failed to adequately staff the restaurant parking lot, which caused Turner to become confused and make an illegal left turn onto Pacific Coast Highway, thereby causing the accident that killed decedent. Plaintiffs further alleged Peterson knew, or should have known, that its parking lot and driveway were designed and in such condition as to create a danger of decreased visibility of the adjacent highway, and failed to adequately provide signage directing patrons that only right turns could be made onto Pacific Coast Highway.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Lawrence S. Zucker II and
Kristian B. Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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Construction Payment Remedies: You May be Able to Skate by, But Why?
April 06, 2016 —
Garret Murai – California Construction Law BlogMy grandfather used to say that “anything worth doing, is worth doing well.”
It wasn’t until later that I learned the quote wasn’t his, but a quote from Philip Stanhope the Fourth Earl of Chesterfield, who said in his posthumously published and quite lengthily titled Letters to His Son on the Art of Becoming a Man of the World and a Gentleman, that “whatever is worth doing at all, is worth doing well.” I’m not sure where my grandfather, who wasn’t a man of letters, picked up this quote, but I like his version better.
While “anything worth doing, is worth doing well” can be said to apply to a wide variety of things in life, including living itself, it applies equally to the world of construction payment remedies, which have requirements that are both detailed and deadline driven.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona
January 23, 2023 —
Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation BlogThe Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally.
The case:
Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived.
From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract.
Reprinted courtesy of
Robert A. Henry, Snell & Wilmer and
Emily R. Parker, Snell & Wilmer
Mr. Henry may be contacted at bhenry@swlaw.com
Ms. Parker may be contacted at eparker@swlaw.com
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