The Construction Project is Late—Allocation of Delay
November 17, 2016 —
David Adelstein – Florida Construction Legal UpdatesThe construction project is late. Very late. The owner is upset and notifies the contractor that it is assessing liquidated damages. The contractor, in turn, claims that the project is late because of excusable, compensable delays and, perhaps, excusable, noncompensable delays. This is a common and unfortunate story between an owner and contractor on any late construction project. Now the fun begins regarding the allocation of the delay!
Through previous articles, I discussed that in this scenario the burden really falls on the contractor to establish that the liquidated damages were improperly assessed against it and, thus, it is entitled to additional time and/or extended general conditions as a result of excusable delays. Naturally, this requires the contractor to develop a critical path analysis (time impact analysis) allocating the impacts / delays (and the reasons for the impacts/ delays) to the project completion date. The reason the burden really falls on the contractor is because the owner’s burden is relatively easy – the project was not complete on time pursuant to the contract and any approved changed orders.
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David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.Mr. Adelstein may be contacted at
dma@katzbarron.com
South Carolina Supreme Court Finds that Consequential Damage Arise From "Occurrence"
October 10, 2013 —
Tred Eyerly — Insurance Law HawaiiThe South Carolina Supreme Court held that continuing damage that was part of a continuum of property damage constituted an "occurrence." Auto-Owners Ins. Co. v. Rhodes, 2013 S.C. LEXIS 248 (Sept. 25, 2013).
Rhodes hired Eadon to design, fabricate, and erect three outdoor advertising signs on Rhodes' property bordering an interstate highway. After the signs were erected, one fell across the highway, blocking both lanes of southbound traffic. The state Department of Transportation ordered Rhodes to remove the remaining two signs and revoked Rhodes' permit to maintain signs on the property.
Rhodes sued Eaton. Eaton's insurer, Auto-Owners, filed a declaratory judgment action to determine whether there was coverage under the CGL policy. The trial court found the sign falling on the interstate constituted an "occurrence" that resulted in damages beyond the defective work to property other than the defective work itself.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Insurer’s Discovery Requests Ruled to be Overbroad in Construction Defect Suit
October 28, 2011 —
CDJ STAFFThe US District Court has ruled in the case of D.R. Horton Los Angeles Holding Co. Inc. v. American Safety Indemnity, Co. D.R. Horton was involved in a real estate development project. Its subcontractor, Ebensteiner Co., was insured by ASIC and named D.R. Horton as an additional insured and third-party beneficiary. D.R. Horton, in response to legal complaints and cross-complaints, filed for coverage from ASIC under the Ebensteiner policy. This was refused by ASIC. ASIC claimed that “there is no potential coverage for Ebensteiner as a Named Insurer and/or D.R. Horton as an Additional Insured.” They stated that “the requirements for coverage are not satisfied.”
The case same to trial with the deadline for discovery set at March 1, 2011. ASIC stated they were seeking the developer’s “job file” for the Canyon Gate project. D.R. Horton claimed that ASIC’s discovery request was overbroad and that it would be “unduly burdensome for it to produce all documents responsive to the overbroad requests.”
D.R. Horton did agree to produce several categories of documents, which included:
“(1) final building inspection sign-offs for the homes that are the subject of the underlying litigation;(2) an updated homeowner matrix for the underlying actions; (3) the concrete subcontractor files; (4) the daily field logs for D.R. Horton’s on-site employee during Ebensteiner’s work; (5) documents relating to concrete work, including documents for concrete suppliers; (6) documents relating to compacting testing; (7) documents relating to grading; and (8) D.R. Horton’s request for proposal for grading”
The court found that the requests from ASIC were overbroad, noting that the language of the ASIC Request for Production of Documents (RFP) 3-5 would include “subcontractor files for plumbing, electric, flooring, etc. - none of these being at issue in the case.” The court denied the ASIC’s motion to compel further documents.
The court also found fault with ASIC’s RFPs 6 and 7. Here, D.R. Horton claimed the language was written so broadly it would require the production of sales information and, again, subcontractors not relevant to the case.
Further, the court found that RFPs 8, 10, 11, and 13 were also overbroad. RFP 8 covered all subcontractors. D.R. Horton replied that they had earlier complied with the documents covered in RFPs 10 and 11. The court concurred. RFP 13 was denied as it went beyond the scope of admissible evidence, even including attorney-client communication.
The court denied all of ASIC’s attempts to compel further discovery.
Read the court’s decision…
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Legislation Update: S-865 Public-Private Partnerships in New Jersey Passed by Both Houses-Awaiting Governor’s Signature
July 02, 2018 —
Steven M. Charney & Charles F. Kenny - Peckar & Abramson, P.C.New Jersey is finally close to being among the many states with broad authority to develop or improve public projects through a Public-Private Partnership (P3) delivery method. This contracting model has stimulated growth and improvements in other States and led to the delivery of projects that may not otherwise have happened. Senate Bill 865 (“S-865”), after undergoing some last-minute amendments in a frenzied legislature dealing with budget and other critical issues, has passed in both houses of the Legislature and is waiting for Governor Murphy’s signature, which is expected shortly. The law will be effective 180 days from formal enactment. The administrative framework is now in place to make Public-Private Partnerships a reality in New Jersey.
Reprinted courtesy of
Steven M. Charney, Peckar & Abramson, P.C. and
Charles F. Kenny, Peckar & Abramson, P.C.
Mr. Charney may be contacted at scharney@pecklaw.com
Mr. Kenny may be contacted at ckenny@pecklaw.com
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Contractual Assumption of Liability Does Not Bar Coverage
August 27, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Michigan Court of Appeals rejected the insurer's argument that coverage was barred for the insured's contractual assumption of liability of another. Travelers Prop. Cas. Co. of Am v. Peaker Serv., Inc., 2014 WL 3605680 (Mich. Ct. App. July 22, 2014).
The contractor was hired to install an "electronic over-speed system" at the University of Michigan. The hope was that the new system would prevent the steam turbines at the central power plant from turning too quickly. The parties' contract provided,
“Section 15.18. Supplier Damage to University Property. Without regard to any other section of the Agreement, Supplier shall be responsible for the costs to return to ‘as was’ condition from any damage caused to the building, grounds, or other equipment and furnishings caused in whole or part by Supplier Personnel while performing activities arising under this Agreement.”
The contractor improperly calibrated the system, causing one of the university's turbines to operate at twice the safe operational speed, causing significant damage to the generator equipment. The university sued the contractor for more than $3 million in damages. Travelers defended, but filed a declaratory judgment action, contending that coverage did not exist because the "contractual liability" exclusion applied. Section 15.18 of the contract purportedly constituted an "assumption" of the insured's own liability, and was therefore not covered under the CGL policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Formal Opinion No. 2020-203: How A Lawyer Is to Handle Access to Client Confidential Information and Anticipation of Potential Security Issues
December 07, 2020 —
Bremer Whyte Brown & O'Meara LLPRecently, the California Bar Association (“CBA”) published Formal Opinion No. 2020-203[1] concerning a lawyer’s ethical obligations with respect to unauthorized access to electronically stored client information. The onset of the COVID-19 pandemic greatly accelerated the growing trend of storing and maintaining data and information online so that employees and clients can access the data from anywhere in the world at any time. Now, in today’s working world, the reality is nearly all information and data is stored and shared digitally online for ease of access, use, and dissemination.
Unfortunately, a major draw-back of this switch to a cyber paradigm is serious exposure to data breaches as a result of hacking, inadvertence, or theft. Formal Opinion No. 2020-203 outlines how a lawyer is to handle access to client confidential information and anticipation of potential security issues. This article will briefly cover the key aspects addressed in Formal Opinion No. 2020-203.
What is the duty owed by a lawyer to his or her client regarding the use of technology?
At the outset, the CBA reminds lawyers of the ongoing duty of competence (Rule 1.1) and the duty to safeguard clients’ confidences and secrets (Rule 1.6; Cal. Bus. & Prof. Code, § 6068(e)) which impose the requirement that a lawyer must have a basic understanding of the risks posed when using a given technology and (if necessary) obtain help from appropriate experts to assess those risks and take reasonable steps to prevent data breaches.
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Bremer Whyte Brown & O'Meara LLP
Candis Jones Named to Atlanta Magazine’s 2021 “Atlanta 500” List
March 01, 2021 —
Candis Jones - Lewis Brisbois NewsroomAtlanta Partner Candis Jones has been named to Atlanta Magazine’s 2021 “Atlanta 500” list of the most powerful business leaders in Atlanta. To compile this list, the publication reviewed nominations from the public and consulted experts across various sectors. The magazine’s editors and writers considered not only the status of the nominees within their respective organizations, but also whether the nominees were visionary by, for example, leading programs for their communities or creating opportunities for employees.
Ms. Jones is a member of Lewis Brisbois’ General Liability Practice. Representing a wide array of clients, including Fortune 500 companies, insurance carriers, and a major metropolitan transit authority, she focuses her practice on insurance defense, premises liability, personal injury, and medical malpractice. She was recently installed as the President of the Gate City Bar Association, the oldest African-American bar association in the state of Georgia, and also serves as a member of the Georgia Defense Lawyers Association and the Georgia Association of Black Women Attorneys.
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Candis Jones, Lewis BrisboisMs. Jones may be contacted at
Candis.Jones@lewisbrisbois.com
Sales of Existing Homes in U.S. Fall to Lowest Since 2012
March 26, 2014 —
Shobhana Chandra – BloombergPurchases (ETSLTOTL) of previously owned homes in the U.S. declined in February to the lowest level since July 2012, a sign the industry may be slow to recover.
Contract closings on existing properties fell 0.4 percent to a 4.6 million annual rate, matching the median projection in a Bloomberg survey, figures from the National Association of Realtors showed today in Washington. Prices rose 9.1 percent from a year earlier, the group said.
The slowdown in sales since the middle of last year reflects a pickup in borrowing costs, declining affordability and, more recently, bad weather. Faster job growth that generates bigger income gains are needed to spur demand and allow housing to contribute more to the economy.
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Shobhana Chandra, BloombergMs. Chandra may be contacted at
schandra1@bloomberg.net
