Court Upholds Plan to Eliminate Vehicles from Balboa Park Complex
June 10, 2015 —
Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLPIn Save Our Heritage Organisation v. City of San Diego, et al. (No. D063992, filed 5/28/15), the California Court of Appeal for the Fourth Appellate District upheld a controversial plan to eliminate vehicles from various plazas in historic Balboa Park. In reaching its decision, the Court of Appeal considered a question of first impression involving the interpretation of San Diego Municipal Code section 126.0504.
Balboa Park, designated a National Historic Landmark in 1940, is a large urban park in the center of San Diego. The City of San Diego (“City”) recently approved a proposed plan (“Project”) to eliminate vehicles from the plazas within the Balboa Park complex and to return the plazas to purely pedestrian zones. Subsequently, a community group named Save Our Heritage Organisation (“SOHO”) filed a petition for a writ of mandate alleging, among other things, the City erroneously approved the Project. SOHO contended Municipal Code section 126.0504 mandated two key findings be made before the Project could be approved: (1) that the intended purpose of the property would not be adversely affected; and (2) without the proposed project, the property would not be put to a “reasonable beneficial use.” SOHO argued that although the City made the requisite findings, those findings lacked substantial evidentiary support. The trial court agreed with SOHO and directed the City to rescind the site development permit.
The City argued on appeal that Municipal Code section 126.0504 vested it with “discretion to make a qualitative determination of whether an existing use of the property, even if deemed beneficial, is also a reasonable use of that property under all of the facts and circumstances applicable to the particular property in question.” The Court of Appeal agreed and reversed.
Reprinted courtesy of
Kristen Lee Price, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Ms. Price may be contacted at kprice@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com
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New York Court Rejects Owner’s Bid for Additional Insured Coverage
September 06, 2021 —
Eric D. Suben - Traub LiebermanTenders for additional insured coverage in construction accidents are frequently litigated in New York courts. Although the past few years have seen changes in the law regarding the causal nexus between the named insured’s work and coverage for the purported additional insured, courts often find there is at least a duty to defend the additional insured where there are allegations of the employer/subcontractor’s presence at the site.
An exception is the recent decision in Gemini Insurance Company v. Certain Underwriters at Lloyd’s, London, Index No. 652669/20 in the Supreme Court of the State of New York, County of New York (Lebovits, J.). In that case, Gemini insured the owner and general contractor of a construction project, and Lloyd’s insured the injured claimant’s employer under a policy endorsed to provide additional insured coverage to entities who “have agreed in writing in a contract or agreement” with the named insured that they must be “added as additional insured.” Although the court found that the contracts here satisfied this requirement for additional insured coverage, the court’s analysis did not end there.
Noting that even where such contract exists, the Lloyd’s policy would not provide additional insured coverage “in all circumstances” (emphasis in original), the court next considered whether the underlying injury was “caused in whole or in part by: 1. [The named insured’s] acts or omissions, or 2. The acts or omissions of those acting on [the named insured’s] behalf,” as required under the endorsement’s wording.
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Eric D. Suben, Traub LiebermanMr. Suben may be contacted at
esuben@tlsslaw.com
Texas and Georgia Are Paying the Price for Sprawl
March 15, 2021 —
Conor Sen - BloombergCities in the Sun Belt South have been needing a more modern development model for a while. That's created tensions, both economically and politically, that have only accelerated during the past year's pandemic. My colleague Noah Smith wrote a column about this specific to Texas, but it's broader than any one state and it's useful to think about how we got to this point and why these issues are relevant in 2021 in a way they weren't a generation ago.
There's an institutional reluctance to pivot away from the Sun Belt model defined by low taxes and cheap land because of how successful it was for key constituencies for decades. Coming out of World War II, there was a scramble nationwide to build more housing in response to soldiers coming home from war and pent-up demand for family formation.
The combination of the automobile as the nation's now-dominant form of transportation and the passage of the Federal Highway Act of 1956 made building out the suburbs of less-populated southern states an irresistible growth model for politicians and economic development interests alike. If it required tax breaks and fewer regulations to lure jobs and people from northern states to accelerate the process, so be it.
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Conor Sen, BloombergMr. Sen may be contacted at
csen9@bloomberg.net
Angela Cooner Receives Prestigious ASA State Advocate Award
April 12, 2021 —
Angela Cooner - Lewis BrisboisPhoenix Partner Angela L. Cooner recently received the American Subcontractors Association, Inc. (ASA) 2020 State Advocate award during ASA’s Virtual Awards Presentation, which took place on February 25. ASA selected Ms. Cooner as the recipient of this honor based upon the significant time that she spent and value she added to subcontractor advocacy in Arizona over the last year.
In nominating Ms. Cooner for this award, ASA of Arizona stated, “Angie’s dedication and track record are second to none. However, it is her leadership in managing the recent merger between the Arizona State Contractors’ Coalition (AZSCC) and Arizonans for Fair Contracting (AFC) where she has distinguished herself most notably.” Moreover, ASA explained that Ms. Cooner’s dedication “has allowed ASA of Arizona to renegotiate a new contract with a government affairs firm that helped secure victory on a critical proportional liability bill and begin the upcoming legislative session on the right foot.” According to ASA, Ms. Cooner has donated the equivalent of $120,000 in billable hours to the organization through her work for AFC and as legal counsel for ASA of Arizona’s Board of Directors.
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Angela Cooner, Lewis BrisboisMs. Cooner may be contacted at
Angela.Cooner@lewisbrisbois.com
Motion to Dismiss Denied Regarding Insureds' Claim For Collapse
October 29, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe federal district court denied the insurer's motion to dismiss claims for loss due to the imminent collapse of the insureds' basement walls. Belz v. Peerless Ins. Co., 2014 WL 4364914 (D. Conn. Sept. 2, 2014).
The insureds noticed cracks throughout their basement walls. It was discovered that the condition was the result of a chemical compound used in the concrete of certain basement walls in the late 1980s and early 1990s. The insureds contended that due to the cracking, the basement walls suffered a substantial impairment to their structural integrity making it only a matter of time until the walls collapsed.
The insureds notified their insurer, Peerless. An engineer hired by Peerless determined the walls' condition was caused by poor workmanship and defective materials. On this basis, Peerless denied coverage.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Be Careful When Walking Off of a Construction Project
November 24, 2019 —
Christopher G. Hill - Construction Law MusingsI am truly grateful that my buddy Craig Martin (@craigmartin_jd) continues his great posts over at The Construction Contractor Advisor blog. He is always a good cure for writer’s block and once again this week he gave me some inspiration. In his most recent post, Craig discusses a recent Indiana case relating to the ever present issue of termination by a subcontractor for non-payment. In the Indiana case, the court looked at the payment terms and determined that the subcontractor was justified in walking from the project when it was not paid after 60 days per the contract.
This result was the correct, if surprising. Why do I say surprising? Because I am always reluctant to recommend that a subcontractor walk from a job for non payment if it is possible to continue. This is not so much for legal reasons (not paying a sub is a clear breach of contract by a general contractor) but practical ones. The practical effect of walking from the job is that the subcontractor is put on the defensive. Instead of arguing later that it performed but was not paid, that subcontractor is put in the position of arguing that the general contractor cannot collect its completion related and other damages because it breached first. This is a more intuitively difficult argument and one that is not as strong as the first.
Of course, all of this is contingent on the language in your contract (is there a “pay if paid” or language like that in the Indiana case?).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Florida Court of Appeals Holds Underlying Tort Case Must Resolve Before Third-Party Spoliation Action Can Be Litigated
December 04, 2018 —
Lian Skaf - The Subrogation StrategistIn Amerisure Ins. Co. v. Rodriguez, 43 Fla. L. Weekly 2225 (Fla. Dist. Ct. App., Sept. 26, 2018), the Third District Court of Appeals of Florida addressed whether a third-party spoliation claim should be litigated and tried at the same time as the plaintiff’s underlying tort case. The court held that since the third-party spoliation claim did not accrue until the underlying claim was resolved, the spoliation cause of action could not proceed until the plaintiff resolved his underlying claim.
The underlying matter in Amerisure involved a personal injury claim by plaintiff Lazaro Rodriguez. While working as an employee for BV Oil, Inc. (BV), Mr. Rodriguez was knocked from the top of a gasoline tanker he was fueling at a gasoline storage warehouse owned by Cosme Investment (Cosme). Mr. Rodriguez filed a personal injury lawsuit against Cosme. He also collected worker’s compensation benefits from Amerisure Insurance Company (Amerisure), BV’s worker’s compensation carrier, while his lawsuit was pending.
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Lian Skaf, White & Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
It’s a COVID-19 Pandemic; It’s Everywhere – New Cal. Bill to Make Insurers Prove Otherwise
August 17, 2020 —
Scott P. DeVries & Andrea DeField - Hunton Andrews KurthOn June 29, in a development that may fundamentally change the landscape for California businesses which have sustained COVID-19 related business interruption loss, two California legislators amended pending legislation to address several of the most hotly contested issues regarding insurance recovery for these devastating losses.
The bill, Assembly Bill 1552, focuses on All-Risk property insurance policies. As amended, it would create a “rebuttable presumption” that COVID-19 was present on and caused physical damage to property which was the direct cause of business interruption. A similar rebuttable presumption would apply to orders of civil authority coverage and to ingress/egress coverage. The bill would further prohibit COVID-19 from being construed as a pollutant or contaminant for purposes of any policy exclusion unless the exclusion specifically referred to viruses. The bill would apply to any All-Risk policy in effect on or after March 4, 2020 and is written to satisfy the standards for an “urgency” statute, taking effect immediately upon being signed into law.
Reprinted courtesy of
Scott P. DeVries , Hunton Andrews Kurth and
Andrea DeField, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Ms. DeField may be contacted at adefield@HuntonAK.com
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