California Supreme Court Rejects Insurers' Bid for Horizontal Exhaustion Rule in New Montrose Decision
April 20, 2020 —
J. Kelby Van Patten - Payne & FearsIn Montrose Chemical Corp. v. Superior Court, 2020 WL 1671560 (April 6, 2020), the California Supreme Court held that, when one primary policy exhausts in a continuing injury claim, the excess insurer sitting above that policy must drop down and provide coverage for the entire claim (up to its policy limits), even if primary policies in other years remain unexhausted.
Montrose was sued for environmental contamination between 1947 and 1982. In many years, Montrose had primary insurance as well as multiple layers of excess coverage. Montrose’s excess insurers argued for a “horizontal exhaustion” rule, which would have required that all implicated primary policies exhaust before any excess insurers provide coverage. The California Supreme Court rejected the insurers’ arguments and found that Montrose was entitled to coverage from an excess insurer once the specific primary policy sitting below that insurer was exhausted. The Supreme Court also confirmed that, under California’s “all sums” rule, each excess insurer must provide coverage for the entire amount of the loss (up to its policy limits).
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J. Kelby Van Patten, Payne & FearsMr. Van Patten may be contacted at
kvp@paynefears.com
Increasing Use of Construction Job Cameras
January 27, 2014 —
Beverley BevenFlorez-CDJ STAFFJob site cameras are increasingly used on construction sites, for various reasons, reports Tom Sawyer of Engineering News-Record. Mark Penny, senior vice president of the Dallas Region Manhattan Construction Inc., told Sawyer that he uses the camera primarily for marketing purposes: “We have a lot of high-profile jobs that people want to see. They are a great opportunity for us and the client to showcase the construction, which makes the job of selling what we do a lot easier.”
Warren Andres, senior vice president at Andres Construction uses cameras for safety monitoring. Andres told Sawyer that “he has three monitors on his desk. One shows live feeds from all his cameras. If he sees unsafe work, he sends a photo to the superintendent and demands action. Similarly, he says he can spot slow work crews and do enough quality control to send the message that management is watching.”
Vendors commented to Sawyer that “the growing use [of cameras] include the rise of building information modeling and its increased need for accountability; as well as companies chasing work beyond usual areas of operations and needing to extend supervision while holding down travel of staffs trimmed by the recession.”
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How SmartThings Wants to Automate Your Home
July 02, 2014 —
Beverley BevenFlorez-CDJ STAFFSmartThings, a U.S. start-up company, “has built a first-of-its-kind platform that allows the objects in your home–doors, locks, lightbulbs, even sprinkler systems–to talk to one another and prioritize your needs,” according to Time. The only requirements are a smartphone and a $200 starter kit.
Alex Hawkinson created SmartThings after he returned from a family vacation and discovered that pipes had burst, resulting in a $100,000 repair bill: “How is it possible that someone hasn’t created something I could plug in that would alert me when something went wrong?” Hawkinson commented to Time.
SmartThings got its start through Kickstarter (Ashton Kutcher was one of the investors), but is now a General Electric partner.
Time reported that there are “legitimate fears of cybercriminals commandeering your smart locks and cameras [that] have made people wary of making their homes potentially hackable.” Hawkinson stated that SmartThings has hired “white-hat hackers to continuously probe SmartThings’ technology and pinpoint vulnerabilities that must be fixed.”
“We’re at the outset of this wave where … your home can give you security, peace of mind and more,” Hawkinson told Time. “Eventually, everything that should be connected will be connected.”
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No Coverage for Faulty Workmanship Based Upon Exclusion for Contractual Assumption of Liability
August 06, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Supreme Court for West Virginia determined the policy's contractual assumption exclusion barred coverage for the general contractor based upon claims of faulty workmanship. J.A. St & Assocs. v. Bitco Gen. Ins. Corp., 2019 W. Va. LEXIS 205 (May 1, 2019).
J.A. Street & Associates, Inc. entered a contract with the developer, Thundering Herd Development, L.L.C., to build a commercial shopping center on seventy-eight acres of land. Street agreed to oversee the site preparation for the development and the construction of many of the buildings. Thundering Herd retained an engineering firm, S&ME, Inc. to do geotechnical exploration and to provide advice regarding land preparation for the shopping center. Thundering Heard also entered an agreement with the Target Corporation to construct a store on a pad to be prepared at the shopping center.
Street hired subcontractors to prepare the site by grading the land and installing fill material. A slope was constructed at the rear of the proposed Target site, but it failed, causing a landslide, damage to the pad, and damage to adjacent property owned by a third party. Thundering Heard incurred $721,875 in additional costs to repair this slope, reconstruct the Target site, and compensate the neighbor for the damage to the adjacent property.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Toolbox Talk Series Recap – Considerations for Optimizing Dispute Resolution Clauses
June 05, 2023 —
Michael Filbin - The Dispute ResolverIn the April 27, 2023 edition of Division 1's Toolbox Talk Series moderated by Manuel del Valle, Sergio Andre Laclau (Partner at Mello Torres) and Liza Akins (Senior Assistant GC and Division Counsel at ARCO Design/Build) offered the following strategies for drafting effective ADR clauses in construction contracts:
- Define the ADR process for various types of disputes.
Not all disputes on a construction project are the same, and the parties can tailor the ADR process to different situations. For example, the parties could choose to arbitrate complex disputes and resolve minor claims through mediation. Differentiating the ADR process between complex and minor disputes can save parties time and money.
While Liza prefers arbitration for complex claims because you can get a quick and final decision from an arbitrator experienced with construction disputes, she noted that arbitration costs can add up quickly. Therefore, if the dollar amount in dispute is relatively small, arbitration may not make sense financially. Mediation tends to be a comparatively cheaper and faster option.
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Michael Filbin, Cozen O'ConnorMr. Filbin may be contacted at
mfilbin@cozen.com
Construction Defect Litigation at San Diego’s Alicante Condominiums?
March 25, 2011 —
Alicante HOA WebsiteAccording to recent posts in the Alicante HOA website, construction experts and legal counsel have been retained. The HOA board has been informed that testing of a variety of the building’s components are underway or will begin in the near future.
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How To Lock Disputes Out Of Your Project In Construction
July 22, 2019 —
Anastasios Koutsogiannis – LetsBuildDisputes are seen as one of the main threats for the successful completion of a project in construction. There is a plethora of factors which could lead to a construction dispute (e.g. contracts, behavior, environment) but, strangely enough, the industry seems to invest more attention on the resolution of a conflict instead of its prevention.
Thanks to the progress that digital technologies have witnessed during the last few years, there is a good chance that things in construction will change for the better soon. The ability to exchange crucial updates in real time, while keeping a detailed record of everything that happens on the field adds an extra level of protection to your project and ensures that all agents are on the same page.
In an effort to shed some light on the issue of construction disputes, we present below four tips that could help your team to lock conflicts out of your project:
1. Standardize your processes
Before you kickstart your project, it is of paramount importance that you standardize all your systems and processes. In that way, you will be able to add extra clarity to your workflow and eliminate misunderstandings.
Once you have achieved that, you can replicate the same process to your future projects. The more you manage to repeat the same project structure the better your team will become in completing their tasks without ending up in any kind of conflict.
In that sense, standardization could be a long-term investment for your organization.
2. Go digital
As soon as your processes are defined, it is time for the digital journey to begin. Finding the right tool for your project will result in a streamlined construction process where all the members of the team are on the same page without any room for costly mistakes or disagreements.
Furthermore, with the help of digital solutions it becomes easier for project managers to measure the performance on site and monitor the completion of the set benchmarks. Like that, all payments will be on time and the program of the project will reflect reality.
3. Be extra careful with the contracts
A poorly-written contract can have a big impact on the effort to lock disputes out of your construction project. While putting together a new contract, you should always make sure that you have taken into account all the different scenarios for your project.
Either that is a delay due to weather conditions or an accident on site everything should be described in detail in the contracts and be well understood by those in charge.
In any other case, things can get a bit risky and a costly dispute might wait to happen.
4. Hold regular meetings with all stakeholders
Last but certainly not least, meet regularly with all project stakeholders. The frequent contact with the different members of your team will allow you to discuss and resolve any problematic situations before they grow out of proportion.
What is more, regular meetings will help both your field teams and the people in the office to remain aligned and will eliminate the possibility of having people working on outdated versions of the program.
Of course, these meetings don’t need to be time-consuming or even in person. With the help of technology, you can keep these meetings short and to the point. In that manner, everybody involved will be able to get the most out of them.
Final word
All in all, it becomes clear that locking disputes out of your project in construction requires continuous work and a carefully-elaborated plan. Thankfully, the emergence and progress of digital solutions have made this process much easier contributing significantly to the development of the industry far from disputes and project misunderstandings.
About the author: Anastasios Koutsogiannis is Content Marketing Manager at LetsBuild.
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Anastasios Koutsogiannis, LetsBuild
Granting Stay, Federal Court Reviews Construction Defect Coverage in Hawaii
January 06, 2012 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court ultimately stayed a construction defect case, but offered comments on the current status of coverage disputes for such defects in Hawaii. See National Union Fire Ins. Co. of Pittsburgh, Pa. v. Simpson Mfg. Co., 2011 U.S. Dist. LEXIS 128481(D. Haw. Nov. 7, 2011).
National Union filed a complaint for declaratory relief to establish it had no duty to defend or to indemnify Simpson Manufacturing Company in four actions pending in the Hawaii state courts. The state court actions concerned allegedly defective hurricane strap tie hold downs that were manufactured and sold by Simpson. The hurricane ties allegedly began to prematurely corrode and rust, causing cracking, spalling and other damage to homes.
National Union contended the underlying allegations did not constitute "property damage" caused by an "occurrence," as defined in the policies.
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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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