Recent Decision Further Jeopardizes Availability of Additional Insured Coverage in New York
July 08, 2024 —
Nina Catanzaro & Bethany L. Barrese - Saxe Doernberger & Vita, P.C.Additional insured endorsements often provide “blanket” coverage to persons or organizations as required by a written contract. However, the wording of the “blanket” language is critically important, as the inclusion of certain phrases in an additional insured endorsement can result in a denial of coverage for the upstream party.
For example, risk transfer issues can arise when an additional insured endorsement provides coverage to parties “when you [the named insured] and such person or organization [the additional insured] have agreed in writing in a contract or agreement.” Courts in New York (among other jurisdictions) have interpreted this phrase to require contractual privity – that is, only the entity that contracted directly with the named insured is entitled to additional insured coverage, even if the named insured agreed in that contract to provide additional insured coverage for others as well. The same goes for the phrase “any person or organization with whom you [the named insured] have agreed to add as an additional insured by written contract.”
Reprinted courtesy of
Nina Catanzaro, Saxe Doernberger & Vita, P.C. and
Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Catanzaro may be contacted at NCatanzaro@sdvlaw.com
Ms. Barrese may be contacted at BBarrese@sdvlaw.com
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Waiving Consequential Damages—What Could Go Wrong?
March 19, 2024 —
Curtis W. Martin & Kellie M. Ros - Peckar & Abramson, P.C.You are inexcusably late with construction of a football stadium, a casino, or similar project that generates large income for the owner. The indirect damages, often referred to as consequential damages, that flow from the delay can be astronomical to the point of breaking your company if it must pay them. As a result, many construction contracts, at every tier, contain a provision that waives consequential damages. By this waiver, a party seeks to limit its risk for these damages.
Over the years, courts have interpreted these provisions in a widely variable and inconsistent manner. The courts typically start with the specific language of the waiver to discern the parties’ intent. Thus, the language of the provision itself is critical. But construction professionals should not overlook other provisions in the contract that may have an impact on a court’s analysis of the parties’ intent. As one of my colleagues likes to say, “the large print giveth and the small print taketh away.”
Reprinted courtesy of
Curtis W. Martin, Peckar & Abramson, P.C. and
Kellie M. Ros, Peckar & Abramson, P.C.
Mr. Martin may be contacted at cmartin@pecklaw.com
Ms. Ros may be contacted at kros@pecklaw.com
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A Funny Thing Happened to My Ground Lease in Bankruptcy Court
November 25, 2024 —
Christopher F. Graham & Morgan A. Goldstein - White and Williams LLPEXECUTIVE SUMMARY
Ground leases are an important – if somewhat unusual – part of the real estate finance industry. Because they typically cover large expensive properties like Rockefeller Center and The Empire State Building, to name two, and last a long time (99 years and up to start) the likelihood of something unexpected or unintended happening is high. This likelihood increases dramatically if, as highlighted below, one or both of the lease parties’ files for bankruptcy. Accordingly, real estate professionals should take note and take care when entering into any transaction involving a ground lease.
Reprinted courtesy of
Christopher F. Graham, White and Williams LLP and
Morgan A. Goldstein, White and Williams LLP
Mr. Graham may be contacted at grahamc@whiteandwilliams.com
Ms. Goldstein may be contacted at goldsteinm@whiteandwilliams.com
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The New “White Collar” Exemption Regulations
August 19, 2015 —
Craig Martin – Construction Contractor AdvisorThis summer the Department of Labor’s Wage and Hour Division issued proposed changes to the white-collar overtime regulations under the Fair Labor Standards Act (FLSA). The white collar exemptions include the executive, administrative, professional, outside sales and computer employee exemptions. The focus of the proposed regulations is to increase the salary level required to qualify for the exemption from $23,660 per year to $50,440 per year. The DOL predicts this will cause employers to change the exempt status of nearly 5 million workers who are currently exempt from overtime requirements to non-exempt status – requiring the payment of overtime.
Current Regulations
Under today’s regulations, the white collar exemption applies to employees who are paid at least $455 per week ($23,660 per year) and who customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee.
Proposed Changes
The most significant change is the sizeable increase in the minimum salary requirements for the exemptions. The proposed regulations more than double the current minimum salary of $455 per week to $921. This corresponds to the 40th percentile of weekly earnings projected for the first quarter of 2016, based on the Bureau of Labor Statistics. The DOL also proposes annual adjustments to the minimum salary requirements.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Construction Contract Clauses Only a Grinch Would Love – Part 4
November 30, 2016 —
Garret Murai – California Construction Law BlogScope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The fourth and final part in a multi-part series, here are some other important construction contract clauses that can put a damper on your holidays.
Provision: Warranty Provisions
- Typical Provision: “Subcontractor warrants to Contractor that all materials and equipment furnished shall be new unless otherwise specified and that all Work performed shall be performed in a good and workmanlike manner, of good quality and free from defects, and in conformance with industry standards, manufacturer’s recommendations and the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved, shall be considered defective. Subcontractor agrees to promptly make good any and all defects due to faulty workmanship, materials and/or equipment which may appear within the Contract Documents, and if no such period is stipulated in the Contract, then for a period of one year from the date of acceptance by the Owner. Nothing herein shall shorten or limit any applicable periods of limitations including, but not limited to, those set forth in Civil Code, Part 2, Title 2, Chapter 3.”
- What it Means: Warranty periods are subject to the agreement of the parties. However, warranties are different than limitations periods, such as California’s 4 year statute of repose for patent defects and 10 year statute of repose for latent defects (note: a statute of repose is different than a statute of limitation. A statute of repose sets a deadline based on an event. So, for example, under the 10 year statute of repose for latent defects a claimant must bring a latent defect claim within 10 years following substantial completion even if the latent defect wasn’t discovered until 10 years and 1 month following substantial completion. A statute of limitation, in contrast, sets a deadline based on the occurrence of an injury or damage. So, for example, California has a 2 year statute of limitation for personal injuries, which sets a deadline of 2 years from the date of injury to bring a personal injury claim). Warranty periods are also different from limitations periods because most warranties require work to be corrected at no cost, and because many contracts include attorney’s fee provisions, breach of a warranty can give rise to claim for attorney’s fees as well.
- What You Can Do: Lower-tiered parties should examine warranty provisions to see if they are reasonable, and if not reasonable, should seek to either eliminate or limit those provisions, such as by reducing the warranty period or providing different warranty periods for different components of work, etc.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Following My Own Advice
October 21, 2015 —
Craig Martin – Construction Contractor AdvisorI often advise clients on the use of E-Verify and the importance of getting policies and in place to ensure compliance. This is particularly true for clients that do federal and state work. Now it’s my turn to follow my own advice.
I was recently appointed to represent the Nebraska Board of Engineers and Architects. As such, I am a contractor for the State of Nebraska. That means I have to use E-Verify.
Here is a refresher of “our” E-Verify obligations as a contractor for the State.
Nebraska adopted an E-Verify law in 2009. Nebraska statute section 4-114 requires all contractors that are awarded a contract by a state agency or political subdivision to register with ta federal immigration verification system. Although not explicit in the statute, the Department of Labor has indicated that the obligation to E-Verify applies only to new employees that will be working on the project.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
In Texas, a General Contractor May be Liable in Tort to a Third-Party Lessee for Property Damage Caused by a Subcontractor’s Work
February 16, 2016 —
Michael L. DeBona – White and Williams LLPIn Zbranek Custom Homes, Ltd. v. Joe Allbaugh, et al., No. 03-14-00131-CV, 2015 WL 9436630 (Tex.App.-Austin Dec. 23, 2015), the Court of Appeals of Texas, Austin, considered the circumstances under which a general contractor can be held liable for injuries to a non-contracting party’s property. The court held that, because the general contractor, Zbranek Custom Homes, Ltd. (Zbranek), exercised control over the construction of the fireplace at issue, Zbranek owed a duty of care to the first lessees of the home that Zbranek built.
In Zbranek, Bella Cima Developments, L.P. (Bella Cima) hired Zbranek to act as the general contractor for the construction of a home. As the general contractor, Zbranek engaged various subcontractors to perform different aspects of the construction, including the framing, stucco and masonry work for an outdoor fireplace.
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Michael L. DeBona, White and Williams LLPMr. DeBona may be contacted at
debonam@whiteandwilliams.com
Leaning San Francisco Tower Seen Sinking From Space
November 30, 2016 —
The Associated Press (Jocelyn Gecker) – BloombergSan Francisco (AP) -- Engineers in San Francisco have tunneled underground to try and understand the sinking of the 58-story Millennium Tower. Now comes an analysis from space.
The European Space Agency has released detailed data from satellite imagery that shows the skyscraper in San Francisco's financial district is continuing to sink at a steady rate — and perhaps faster than previously known.
The luxury high-rise that opened its doors in 2009 has been dubbed the Leaning Tower of San Francisco. It has sunk about 16 inches into landfill and is tilting several inches to the northwest.
A dispute over the building's construction in the seismically active city has spurred numerous lawsuits involving the developer, the city and owners of its multimillion dollar apartments.
Engineers have estimated the building is sinking at a rate of about 1-inch per year. The Sentinel-1 twin satellites show almost double that rate based on data collected from April 2015 to September 2016.
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Bloomberg
