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DIRECTORY AND CAPABILITIES

Texas res judicata and co-insurer defense costs contribution

March 23, 2011 — CDCoverage.com

In Truck Ins. Exchange v. Mid-Continent Casualty Co., No. 03-08-00526-CV (Tex. App. 3d Aug. 27, 2010), insured contractor DCI was sued by the project owner seeking damages for defective construction. DCI tendered its defense to its CGL insurers Truck and Mid-Continent. Truck agreed to defend while Mid-Continent denied a defense. While the underlying suit was pending, Mid-Continent sued DCI, but not Truck, and obtained a judicial declaration of no duty to defend or indemnify DCI in the underlying suit. After settling the underlying suit, Truck sued Mid-Continent seeking contribution towards defense costs and indemnity payments. The state trial court entered summary judgment for Mid-Continent. The intermediate appellate court affirmed.



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Texas Federal Court Upholds Professional Services Exclusion to Preclude Duty to Defend

March 16, 2020 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In Project Surveillance, Inc. v. The Travelers Indemnity Company, No. 4:19-CV-03324, 2020 WL 292247 (S.D. Tex. Jan. 21, 2020), a Texas federal court held that a professional services exclusion in a commercial general liability policy precluded Travelers’ duty to defend its insured. The underlying lawsuit was a wrongful death action brought by the family of a worker killed on a construction site. Project Surveillance was present at the construction site “to provide safety supervision or other services.” The underlying lawsuit alleged that Project Surveillance negligently failed to inspect or adequately inspect the project and failed to warn or adequately warn the decedent of a dangerous condition. The underlying lawsuit also alleged that Project Surveillance was negligent in failing to stop work. At the time of the incident, Project Surveillance had commercial general liability insurance through Travelers and professional liability insurance through RLI. RLI agreed to defend Project Surveillance in the underlying lawsuit. Travelers, however, denied owing a duty to defend or indemnify based on an exclusion for “bodily injury” arising out of the rendering or failure to render any “professional service.” The Traveler policy defined the term “professional services” to mean any service requiring specialized skill or training, including “failure to prepare [. . .] any warning,” “supervision,” “inspection,” “control,” “surveying activity or service,” “job site safety,” “construction administration,” and “monitoring [. . .] necessary to perform and of [those] services.” Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

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Hawaii Construction Defect Law Increased Confusion

August 27, 2013 — CDJ STAFF
Hawaii’s Act 83 put into the law that in determining if a construction defect was due to an occurrence, the courts needed to ignore any case law that arose after the insurance policy was taken out. The hope, according to Bibeka Shrestha, writing at Law360, was to provide certainty to builders. The effect, however, “further muddled the litigation landscape.” Carl Shapiro said of the Hawaii legislature that “instead of solving the problem, they’ve created an even bigger miss.” Tred Eyerly, an insurance attorney says that the state “needs a decision from the Hawaii Supreme Court.” One result is that now the state court and the federal courts have different views on how to look at prior cases. The state courts are holding that “the uncertainly should be resolved in favor of the policyholder,” while the federal courts “pointed to earlier case law that nixed coverage for these types of claims. The legislature seems unlikely to resolve this confusion on its own. One legislative liaison said that “nobody knew how to pass a law saying ‘you will grant coverage.’” Brian Yamane also told Law360 that “there has been no attempt by anybody to introducte legislation to amend the law.” Read the court decision
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Fatal Boston Garage Demolition Leaves Long Road to Recovery

April 04, 2022 — Scott Van Voorhis - Engineering News-Record
Massachusetts' officials are bracing for a lengthy recovery process following the March 26 fatal collapse during demolition of a section of a hulking Brutalist-era parking garage in Boston. JDC Demolition was razing the Government Center structure to make way for a 410,000-sq-ft life-sciences complex, when a multistory portion near the top failed, killing 51-year-old operating engineer Peter Monsini. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Oregon Courthouse Reopening after Four Years Repairing Defects

April 01, 2014 — Beverley BevenFlorez-CDJ STAFF
The Courthouse Square in Marion County, Oregon is due to reopen after four years and nearly $23 million of repair costs to fix structural defects, according to the Statesman Journal. The square includes a courthouse building and bus mall, and is jointly owned by the county and transit district. Two years after the Courthouse Square had been built, cracks were observed “in the building’s walls” and “paving stones on the bus mall shifted and settled.” A construction defect suit was filed in 2006. However, the situation worsened in July of 2010 when “engineers determined that the entire complex was dangerous,” according to the Statesman Journal. “Building safety officials gave Courthouse Square’s occupants 60 days to move out, forcing county and transit district operations into temporary leased space.” Now that the structural repairs have been completed, Dave Clark, project manager with Structural Preservation Systems LLC (the company awarded the repair contract), stated that the building’s structure is now stronger than most buildings. “If there’s an earthquake, come to this building,” Clark said. Read the court decision
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Building in the Age of Technology: Improving Profitability and Jobsite Safety

June 10, 2019 — Maria Laguarda-Mallo - Construction Executive
New virtual design and construction (VDC) technologies are quickly shifting how the AEC industry is designing, documenting and building. From the use of new software, apps and laser scanners, to the deployment of drones and robots, many early adopters are benefitting from fully integrating these solutions into their workflows. Virtual and Augmented Reality In an industry where collaboration is becoming increasingly important, regardless of the firm size, VR is enabling stakeholders to “see” and “walk” through a building before ground is broken. In other words, teams can foresee issues, ask questions and provide feedback in the preconstruction phase. The inclusion of AR and VR in the daily workflows of AEC firms signifies expedited decision-making, reduced rework and real-time collaboration, which in turn translates to a reduction of unexpected costs. Reprinted courtesy of Maria Laguarda-Mallo, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Laguarda-Mayllo may be contacted at maria.laguarda-mallo@viatechnik.com

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Georgia Court Clarifies Landlord Liability for Construction Defects

June 02, 2016 — Chadd Reynolds - AHHC Construction Law Blog
In Cowart v. Schevitz, the Georgia Court of Appeals clarified the instances in which an out-of-possession landlord can be liable in a premises liability claim. No. A15A2036, 2016 WL 563114, at *4 (Ga. Ct. App. Feb. 15, 2016). In this case, the plaintiff was leaving a restaurant and injured herself stepping down off of a sidewalk near the bottom of a ramp. The plaintiff filed a premises liability claim against the owner of commercial property (the “landlord”) and the operator of the restaurant (who later settled), seeking medical expenses and costs of litigation. An expert testifying on behalf of the plaintiff stated that the ramp was required to have railings pursuant to building codes and, had the railings been installed on the ramp, the plaintiff’s fall more than likely would not have occurred. The landlord moved for summary judgment, arguing that as an out-of-possession landlord, his liability to third persons for the use of the property by his tenant was precluded under O.C.G.A. § 44-7-14. The trial court denied the motion without comment, and the owner subsequently appealed. Read the court decision
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Reprinted courtesy of Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLP
Mr. Reynolds may be contacted at reynolds@ahclaw.com

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Between Scylla and Charybids: The Mediation Privilege and Legal Malpractice Claims

August 19, 2015 — Garret Murai – California Construction Law Blog
I attended a mediation earlier this month in a real estate case. I won’t say more through because . . . well . . . it’s confidential. The confidentiality of mediations and of settlement discussions generally – the idea being that parties are more likely to resolve their differences if they can speak honestly and frankly with one another without fear that their words or actions can later be used against them in trial – has long been a hallmark of California law. But that may not be the case for long. In 2012, the California State Legislature directed the California Law Review Commission (“Commission”), the state agency responsible for recommending reforms to California law, to review and make recommendations regarding the relationship between California’s laws which make mediation discussions confidential and attorney malpractice. And it appears that the Commission will be reaching a recommendation soon. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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