Landmark Montana Supreme Court Decision Series: Trigger and Allocation
January 24, 2022 —
Lorelie S. Masters, Patrick M. McDermott & Rachel E. Hudgins - Hunton Insurance Recovery BlogIn one of the top insurance-coverage decisions of 2021, the Montana Supreme Court at the end of the year handed down a landmark decision adopting the continuous trigger of coverage and “all sums” allocation, finding a duty to defend and ruling that the qualified, or “sudden and accidental” pollution exclusion did not apply. Nat’l Indem. Co. v. State, 499 P.3d 516 (Mont. 2021). The Supreme Court affirmed in part and reserved in part the rulings entered by the trial court, largely upholding a $98,000,000 judgment for the State against its CGL insurer for the policy years 1973 to 1975. The ruling thus helps ensure coverage for the hundreds of claims alleging that the State had failed to warn claimants of the dangers of asbestos exposures to workers in vermiculite mining and milling operations in Libby, Montana, operated by W. R. Grace (the “Libby Mine”).
Representing amicus curiae United Policyholders (“UP”), Hunton Andrews Kurth supported the position of the policyholder, the State of Montana, on the key rulings on trigger of coverage, allocation, and the pollution exclusion, with the court specifically citing to the Hunton brief in adopting all-sums allocation. This first post in our series covering the Montana Supreme Court’s decisions will address the court’s rulings on trigger of coverage and allocation.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth,
Patrick M. McDermott, Hunton Andrews Kurth and
Rachel E. Hudgins, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. McDermott may be contacted at pmcdermott@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
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Checking the Status of your Contractor License During Contract Work is a Necessity: The Expanded “Substantial Compliance” under B&P 7031 is Here
June 05, 2017 —
Ivo G. Daniele – Newmeyer & Dillion LLP News AlertIt is paramount that a contractor diligently maintains its license prior to and during the performance of any contract work. Failure to do so could result in barring a contractor from receiving payment and/or disgorgement of profits received under the construction contract.
California Business and Professions Code section 7031 is part of the Contractors State License Law (Business & Prof. section 700 et seq.), and is both feared and loathed by all contractors performing work in the state of California. This draconian statute is known as the “Shield” and was enacted over 70 years ago for the singular purpose to bar all actions by contractors seeking compensation for unlicensed contract work – even precluding a contractor from enforcing his or her mechanic’s lien rights. However, a contractor could potentially avoid the harshness of B&P 7031 by establishing that he or she had substantially complied with the appropriate licensing requirements.
SUBSTANTIAL COMPLIANCE WITH LICENSE REQUIREMENTS PRIOR TO 2017 AMENDMENT
The substantial compliance exception is found in section B&P 7031(e), which authorizes the court to determine that there has been substantial compliance with licensure requirements, if the contractor has shown at an evidentiary hearing that he or she engaged in the unlicensed work had:
- Been duly licensed as a contractor in this state prior to the performance of the act or contract;
- Acted reasonably and in good faith to maintain the license;
- Did not know or reasonably should not have known that he or she was not licensed when he or she performed the work; and
- Acted promptly and in good faith to reinstate the license once it learned the license had lapsed.
Although not impossible, satisfying all four requirements of the exception was challenging for the contractor, specifically, requirement # (3) – the lack of knowledge that he or she was unlicensed during performance of work.
SUBSTANTIAL COMPLIANCE POST 2017
Fortunately, Governor Brown heard the collective cry for relief and signed Assembly Bill 1793 (“AB 1793”) into law. The new bill revises the criteria for the court to determine if a contractor is in substantial compliance with the licensing requirements by deleting requirement # (3) in its entirety and modestly amending requirement # (4) to require the contractor to act promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.
As a result, the substantial compliance exception under B&P 7031(e) reads as follows:
(e) The judicial doctrine of substantial compliance shall not apply under this section where the person who engaged in the business or acted in the capacity of a contractor has never been a duly licensed contractor in this state. However, notwithstanding subdivision (b) of Section 143, the court may determine that there has been substantial compliance with licensure requirements under this section if it is shown at an evidentiary hearing that the person who engaged in the business or acted in the capacity of a contractor
(1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.
This new legislation has tempered the burden of proof born by the contractor in establishing substantial compliance, although be it minor in its modification, the fact of the matter remains the same – be diligent in maintaining your license during all phases of contract work.
Ivo Daniele is a seasoned associate in the Walnut Creek office focusing his practice on commercial transactions and business and construction litigation. For questions regarding California Business and Professions Code section 7031, please feel free to contact Ivo Daniele at (925) 988-3222 or ivo.daniele@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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Citigroup Reaches $1.13 Billion Pact Over Mortgage Bonds
April 09, 2014 —
Dakin Campbell – BloombergCitigroup Inc. (C) agreed to pay $1.13 billion to settle claims from mortgage-bond investors as it seeks to curb liabilities tied to the financial crisis. It took a $100 million first-quarter charge.
The 68 securitization trusts covered by the settlement issued a combined $59.4 billion in mortgage-backed securities from 2005 to 2008, the New York-based bank said yesterday in a statement. The agreement covers 18 investors represented by Gibbs & Bruns LLP and trustees have until June 30 to accept the deal, the law firm said in a separate statement. The accord must be approved by the Federal Housing Finance Agency.
Citigroup, the third-biggest U.S. bank, is resolving a portion of liabilities tied to mortgages it packaged and sold to investors in the run-up to the 2008 crisis. JPMorgan Chase & Co. (JPM) and Bank of America Corp. (BAC), the two largest U.S. lenders, previously agreed to multibillion-dollar settlements with Gibbs & Bruns clients.
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Dakin Campbell, BloombergMr. Campbell may be contacted at
dcampbell27@bloomberg.net
Judge Nixes SC's $100M Claim Over MOX Construction Delays
February 16, 2017 —
Engineering News-RecordA federal judge on Feb. 8 dismissed a claim by the state of South Carolina against the U.S. Dept. of Energy over delayed construction of the Mixed-Oxide Fuel Fabrication Facility, near Aiken, S.C. The claim for financial compensation was part of a lawsuit the state filed in February 2016 seeking payment of $1 million per day—or an annual maximum of $100 million—for the MOX facility not producing fuel by Jan. 1, 2016.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
William Doerler Recognized by JD Supra 2022 Readers’ Choice Awards
March 14, 2022 —
William Doerler - White and Williams LLPCongratulations to Bill Doerler, Counsel of the Subrogation Group who has been recognized as a
top author in Product Liability in the 2022 JD Supra Readers' Choice Awards. Bill was ranked number 9 out of a pool of approximately 800 authors writing about product liability matters on JD Supra in 2021.
The Readers’ Choice Awards recognize top authors and firms for their thought leadership in key topics read by C-suite executives, in-house counsel, media and other professionals across the JD Supra platform during 2021. These annual awards (now in their seventh year) recognize JD Supra contributors for the visibility and engagement their thought leadership earned among readers in select subjects during the previous 12 months.
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William Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Los Angeles Could Be Devastated by the Next Big Earthquake
October 15, 2013 —
CDJ STAFFA group of scientists have made a list of about 1,500 concrete buildings in Los Angeles which could potentially collapse in an earthquake. They have offered to make the list available to Los Angeles officials, although the city has yet to take them up on the offer. In response, a group of Times reporters combed through records to identify which buildings were of the sort most likely to collapse in an earthquake. The group found more than 1,000 concrete buildings built before 1976 when Los Angeles increased the requirements for steel rebar.
Experts estimate that in a major earthquake, five percent of these buildings could collapse, which for Los Angeles would mean about 50 buildings. Many of these buildings could be seismically retrofitted, but the article notes that a retrofit starts with a $100,000 structural study. Carol Schatz of the Central City Association notes that the cost of retrofitting “would be greater than the value of the building.”
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My Employees Could Have COVID-19. What Now?
March 23, 2020 —
Amy R. Patton, Leila S. Narvid, Matthew C. Lewis, Robert Tadashi Matsuishi & Sarah J. Odia - Payne & FearsUpdated Guidance as of March 19, 2020.
You are concerned about potentially sick employees in the workplace. One employee is off work sick for a couple of days, and then wants to return to work. Another plans to return to work after a week of travel. Another appears to be sick at work. They are coughing, sneezing, and appear to be short of breath. You are concerned they may have COVID-19. What can you do? You're not the only one concerned -- your other employees are, too.
Your public-facing employees want to wear masks to protect themselves. One employee tells you he doesn’t want to touch anything that others in the office have touched. What are your obligations to these employees?
Below, we address questions relating to keeping employees safe from COVID-19 in the workplace without violating the Americans with Disabilities Act (ADA) or employee privacy laws.
Can I require an employee returning from days away from work due to illness to report the symptoms the employee was experiencing that kept him/her out of work?
Short answer: yes, so long as the questions are limited to whether the employee has had flu-like symptoms. Though the ADA prohibits asking employees questions related to an employee disability, COVID-19 (like the seasonal flu) likely does not rise to the level of a disability, so asking an employee about flu-like (or COVID-19-like) symptoms is unlikely to elicit information related to a disability. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer may ask if an employee is experiencing flu-like symptoms if the employee reports being ill during a pandemic.
Reprinted courtesy of Payne & Fears attorneys
Amy R. Patton,
Leila S. Narvid,
Matthew C. Lewis,
Robert Tadashi Matsuishi and
Sarah J. Odia
Ms. Patton may be contacted at arp@paynefears.com
Ms. Narvid may be contacted at ln@paynefears.com
Mr. Matthew may be contacted at mcl@paynefears.com
Mr. Robert may be contacted at rtm@paynefears.com
Ms. Odia may be contacted at sjo@paynefears.com
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California Supreme Court to Examine Arbitration Provisions in Several Upcoming Cases
December 09, 2011 —
CDJ STAFFGlen C. Hansen, writing on Abbott & Kinderman’s Land Use Law Blog looks at several cases pending before the California Supreme Court which ask if a developer can insist on arbitration of construction defect claims, based on provision in the CC&Rs. Currently, there is a split of opinions in the California appeals courts on the issue.
Four of the cases are in California’s Fourth Appellate District. In the earliest case, Villa Milano Homeowners Association v. Il Davorge, from 2000, the court concluded that the arbitration clause was sufficient to require that construction defect claims undergo arbitration. However, the Fourth Appellate District Court concluded in three later cases that the arbitration clauses did not allow the developer to compel arbitration. In two cases, argued in 2008 and 2010, the court concluded that to do otherwise would deprive the homeowners of their right to a jury trial. In the most recent case, Villa Vicenza Homeowners Association v. Nobel Court Development, the court decided that the CC&Rs did not create contractual rights for the developer.
The Second Appellate District Court came to a similar decision in Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc. In their decision, the court noted that CC&Rs could be enforced by homeowners and homeowners associations, but not developers.
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