In Supreme Court Showdown, California Appeals Courts Choose Sides Regarding Whether Right to Repair Act is Exclusive Remedy for Homeowners
August 10, 2017 —
Garret Murai - California Construction Law BlogEarlier, we wrote about an appellate court split concerning the Right to Repair Act (Civil Code sections 895 et seq.) which applies to construction defects in newly constructed residential properties including single-family homes and condominiums (but not condominium conversions) sold after January 1, 2003.
The California Court of Appeals for the Fourth District, in Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, held that the Right to Repair Act does not provide the exclusive remedy when pursing claims for construction defects involving “actual” property damage (e.g., a defectively constructed roof causing actual physical damage due to water intrusion as opposed to a defectively constructed roof that while constructed improperly does not cause actual physical damage). However, the California Court of Appeals for the Fifth District, in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which is currently pending before the California Supreme Court, held that the Right to Repair Act does in fact provide the exclusive remedy when pursuing claims for construction defects whether they involve “actual” property damage or merely “economic” damages. For homeowners, they would prefer the option of pursuing remedies under either or both the Right to Repair Act (which includes detailed pre-litigation procedures and statutory construction standards) or under common law claims such as negligence (which do not include pre-litigation procedures and have more flexible standards of care).
The California Court of Appeals for the Third District has now thrown its hat into the ring . . . on the side of McMillan.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Climate Disasters Are an Affordable Housing Problem
October 01, 2024 —
Juan Pablo Garnham & Arjuna Heim - BloombergWhen Maui was devastated by wildfires in August 2023, some residents were initially fortunate. The neighborhood of Makawao, for example, was spared the worst effects of the fire that engulfed Lahaina, 35 miles to the west.
Recently, though, we met a woman in that neighborhood who faces a different kind of threat: Her landlord has now demanded that she pay double her rent or face eviction. As housing advocates in the region, we’ve heard stories like this repeatedly, as residents report an acute fear of displacement and homelessness.
A year after the fires killed more than 100 people, displaced 12,000 and disrupted the economy of the island, the disaster lingers for many in Maui and Hawai'i. Rents across the island have increased sharply, offering a cautionary tale for the rest of the US about how climate change, a housing crisis and the lack of adequate public policies can multiply the suffering of a community already in pain.
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Bloomberg
Bid Bonds: The First Preventative Measure for Your Project
September 03, 2019 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday, Construction Law Musings welcomes Danielle Rodabaugh. Danielle is a principal for Surety Bonds.com, an agency that issues surety bonds to individuals and businesses across the nation. She writes articles to clarify bonding rules and regulations for those who have a stake in the surety bond industry–from contractors to telemarketers, and every professional in between.
In construction we often value performance and payment bonds when considering how to protect the financial investments put into a project. We do so because these bonds provide a legal financial guarantee that the selected contractor will fulfill the contract. However, a third, equally protective kind of construction bond is often overlooked.
Before an official contract has been agreed to and successfully executed, bid bonds guarantee that the selected low-bidder will officially enter into the contract at a later date. Bidders must submit a bid bond with their bid. Without doing so, the bidder becomes non-responsive–or an invalid candidate. Sometimes we overlook the benefits provided by this kind of Virginia surety bond, and yet they frequently act as the only legal protection for a project prior to groundbreaking.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Architectural Democracy – Interview with Pedro Aibéo
July 13, 2017 —
Aarni Heiskanen - AEC BusinessIn this podcast interview with Pedro Aibéo, we discuss Architectural Democracy, a research project, and its practical implementations.
Architectural Democracy started as a doctoral research by Pedro Aibéo, architect and civil engineer. Pedro has been doing his research at Aalto Bim Lab, Aalto University School of Engineering. The project has now grown into a larger working group of researchers and entrepreneurs who are currently putting in practice the developed technologies.
Pedro’s research “aims at investigating possibilities and benefits of combining existing technologies (Smartphones and BIM) in collaboration with government policies, in order to include end-users as participants in the decision making process of the built environment.”
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Liability Insurer’s Duty To Defend Insured Is Broader Than Its Duty To Indemnify
June 03, 2019 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to liability insurance, an insurer’s duty to defend its insured from a third-party claim is much broader than its duty to indemnify. This broad duty to defend an insured is very important and, as an insured, you need to know this. “A liability insurer’s obligation, with respect to its duty to defend, is not determined by the insured’s actual liability but rather by whether the alleged basis of the action against the insurer falls within the policy’s coverage.” Advanced Systems, Inc. v. Gotham Ins. Co., 44 Fla. L. Weekly D996b (Fla. 3d DCA 2019) (internal quotation omitted). This means:
Even where the complaint alleges facts partially within and partially outside the coverage of a policy, the insurer is nonetheless obligated to defend the entire suit, even if the facts later demonstrate that no coverage actually exists. And, the insurer must defend even if the allegations in the complaint are factually incorrect or meritless. As such, an insurer is obligated to defend a claim even if it is uncertain whether coverage exists under the policy. Furthermore, once a court finds that there is a duty to defend, the duty will continue even though it is ultimately determined that the alleged cause of action is groundless and no liability is found within the policy provisions defining coverage.
Advanced Systems, supra(internal citations and quotations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Vaccine Mandate Confusion Continues – CMS Vaccine Mandate Restored in Some (But Not All) US States
January 03, 2022 —
David S. Harvey, Jr. & Sarah Hock - Lewis BrisboisTampa, Fla. (December 16, 2021) - As has been widely publicized, the Biden Administration has attempted to impose various forms of vaccine mandates under a variety laws and programs. At the same time, we have seen a flurry of opposition to these efforts ranging from new state laws (for example, in Florida) to court challenges seeking to enjoin the effort.
One of the federal mandates was issued by the Centers for Medicare & Medicaid Services (CMS) and is applicable to staff at Medicare- and Medicaid-certified healthcare providers. Initially, fourteen states sued in opposition to the CMS mandate and were able to obtain a nationwide injunction issued by a federal district judge in Louisiana. That injunction was appealed to the Fifth Circuit Court of Appeals, which has now issued a decision that awards points to both sides.
The Fifth Circuit ruled the injunction only applies to the 14 states that participated in the Louisiana lawsuit and not nationwide. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. This opinion has the potential to revive the CMS vaccine mandate in just over half of U.S. states. We can anticipate new suits will be filed as to other states, with the outcome still uncertain. It is unknown at this point whether the United States Supreme Court will agree to review the issues when such review is sought in the near future.
Reprinted courtesy of
David S. Harvey, Jr., Lewis Brisbois and
Sarah Hock, Lewis Brisbois
Mr. Harvey may be contacted at David.Harvey@lewisbrisbois.com
Ms. Hock may be contacted at Sarah.Hock@lewisbrisbois.com
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Fourth Circuit Finds Insurer Reservation of Rights Letters Inadequate to Preserve Coverage Defenses Under South Carolina Law
January 17, 2023 —
Jason Taylor - Traub Lieberman Insurance Law BlogIn Stoneledge at Lake Keowee Owners Ass'n v. Cincinnati Ins. Co., 2022 U.S. App. LEXIS 34292 (D.S.C. Dec. 13, 2022), the Fourth Circuit Court of Appeals addressed the adequacy of reservation of rights letters issued by Builders Mutual Insurance Company (“Builders Mutual”) and Cincinnati Insurance Company (“Cincinnati”) to their insureds, Marick Home Builders, LLC (“Marick”) and Rick Thoennes (“Thoennes”), Marick’s managing member, for an underlying construction defect lawsuit. In short, the Fourth Circuit found that the reservation letters were inadequate to preserve the insurers’ coverage defenses because they did not sufficiently explain the basis of the carriers’ position.
Stoneledge, a homeowners association, managed a community of 80 townhomes on South Carolina’s Lake Keowee. In 2009, Stoneledge brought suit against Marick and Thoennes, among other defendants, alleging construction defects in the townhomes that resulted in water intrusion and other physical damage. Marick and Thoennes held commercial general-liability policies through Cincinnati and Builders Mutual covering, in relevant part, “property damage” as defined by the policies. Builders Mutual issued policies covering the period from January 2004 to October 2007, and Cincinnati issued policies covering the period from April 2008 to April 2012. After Marick notified the insurers of the underlying action, Builders Mutual sent Marick two reservation of rights letters, one in May 2009 and one in July 2009. Cincinnati sent Marick one reservation of rights letter in March 2010.
In March 2014, Stoneledge brought a declaratory-judgment action against Cincinnati seeking coverage for a judgment entered in the underlying action. The insurers removed the case to federal court, and in September 2016, Stoneledge amended its complaint, adding Builders Mutual as a defendant and seeking coverage for additional damages pursuant to a settlement agreement entered into by Stoneledge, Marick, Thoennes. The district court granted Stoneledge's motion for summary judgment, primarily on the ground that the insurers failed to reserve the right to contest coverage. The insurers appealed to the Fourth Circuit, which affirmed.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Note on First-Party and Third-Party Spoliation of Evidence Claims
October 30, 2018 —
David Adelstein - Florida Construction Legal UpdatesIn an earlier posting, I talked about spoliation of evidence. This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence. This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
