Seattle Washington Building Expert Directory

Insurers Subrogating in Arkansas Must Expend Energy to Prove That Their Insureds Have Been Made Whole

August 06, 2019 — Michael J. Ciamaichelo - The Subrogation Strategist
Arkansas employs the “made whole” doctrine, which requires an insured to be fully compensated for damages (i.e., to be “made whole”) before the insurer is entitled to recover in subrogation.[1] As the Riley court established, an insurer cannot unilaterally determine that its insured has been made whole (in order to establish a right of subrogation). Rather, in Arkansas, an insurer must establish that the insured has been made whole in one of two ways. First, the insurer and insured can reach an agreement that the insured has been made whole. Second, if the insurer and insured disagree on the issue, the insurer can ask a court to make a legal determination that the insured has been made whole.[2] If an insured has been made whole, the insurer is the real party in interest and must file the subrogation action in its own name.[3] However, when both the insured and an insurer have claims against the same tortfeasor (i.e., when there are both uninsured damages and subrogation damages), the insured is the real party in interest.[4] In EMC Ins. Cos. v. Entergy Ark., Inc., 2019 U.S. App. LEXIS 14251 (8th Cir. May 14, 2019), EMC Insurance Companies (EMC) filed a subrogation action in the District Court for the Western District of Arkansas alleging that its insureds’ home was damaged by a fire caused by an electric company’s equipment. EMC never obtained an agreement from the insureds or a judicial determination that its insureds had been made whole. In addition, EMC did not allege in the complaint that its insureds had been made whole and did not present any evidence or testimony at trial that its insureds had been made whole. After EMC presented its case-in-chief, the District Court ruled that EMC lacked standing to pursue its subrogation claim because “EMC failed to obtain a legal determination that its insureds had been made whole . . . prior to initiating this subrogation action.” Thus, the District Court granted Entergy Ark., Inc.’s motion for judgment as a matter of law and EMC appealed the decision. Read the court decision
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Reprinted courtesy of Michael J. Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

California Supreme Court Finds that When it Comes to Intentional Interference Claims, Public Works Projects are Just Different, Special Even

November 21, 2017 — Garret Murai - California Construction Law Blog
Originally published by CDJ on April 20, 2017 Earlier, we reported on a California Court of Appeals decision – Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. – which held for the first time that a second-place bidder on a public works contract could sue a winning bidder who failed to pay its workers prevailing wages, under the business tort of intentional interference with prospective economic advantage. Fast forward nearly two years, several amicus briefs, and “one doghouse”* later and the California Supreme Court has . . . reversed. The Roy Allan Slurry Seal Case To catch you up, or rather, refresh your recollection . . . Between 2009 and 2012, American Asphalt South, Inc. was awarded 23 public works contracts totaling more than $14.6 million throughout Los Angeles, Orange, San Bernardino and San Diego counties. Two of the losing bidders on those projects – Roy Allan Slurry Seal, Inc. and Doug Martin Contracting, Inc. – sued American in each of these counties for intentional interference with prospective economic advantage as well as under the Unfair Practices Act (“UPA”) (Bus. & Prof. Code §§ 17000 et seq.) and the Unfair Competition Law (“UCL”) (Bus. & Prof. Code §17200). 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

The Greenest U.S. Cities & States

August 13, 2014 — Beverley BevenFlorez-CDJ STAFF
ECOBUILDING Pulse discussed the results of the 2014 U.S. Clean Tech Leadership Index, which “tracks clean tech progress by state, and in the 50 largest metro areas.” The top three states with the highest Clean Tech Index score were California, Massachusetts, and Oregon. Out of the top 10 cities, 5 were located in California. The top three cities with the highest score were San Francisco, San Jose, and San Diego. Read the court decision
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Saving Manhattan: Agencies, Consultants, Contractors Join Fight to Keep New York City Above Water

November 27, 2023 — Pam McFarland & Corinne Grinapol - Engineering News-Record
In densely populated cities surrounded on all sides by water—the borough of Manhattan in New York City as a prime example—the risks from sea level rise and climate change are not just hypotheticals; they are existential threats. Reprinted courtesy of Pam McFarland, Engineering News-Record and Corinne Grinapol, Engineering News-Record Ms. McFarland may be contacted at mcfarlandp@enr.com Read the full story... Read the court decision
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Medical Center Builder Sues Contracting Agent, Citing Costly Delays

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
The Pennsylvania firm Bedwell Co. “has sued the Camden County Improvement Authority, saying it is owed $4.6 million for construction of [the Cooper Medical School of Rowan University]” in Camden, New Jersey, according to the Courier-Post. The Bedwell Co. alleges that its expenses exceeded fifty million, “but that it has been paid only $46 million.” The lawsuit states, as quoted by the Courier-Post, “From its inception, the project was plagued by delays due to defects in the design document and other circumstances that were beyond Bedwell’s control.” Furthermore, there were “an abnormally large quantity of design changes, schedule disputes, schedule disruptions and work-activity interference.” “Representatives of the CCIA and HDR could not be reached for comment Wednesday,” according to the Courier-Post. “Bedwell declined to comment on the allegations in the suit.” Read the court decision
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Haight’s Stevie Baris Selected for Super Lawyers’ 2021 Northern California Rising Stars

July 19, 2021 — Stevie B. Baris - Haight Brown & Bonesteel LLP
Congratulations to Stevie Baris who was selected to the Super Lawyers 2021 Northern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Read the court decision
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Reprinted courtesy of Stevie B. Baris, Haight Brown & Bonesteel LLP
Mr. Baris may be contacted at sbaris@hbblaw.com

Insurer's Late Notice Defense Fails on Summary Judgment

December 13, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion for summary judgment to dismiss the claim because the insurer did not provide notice "as soon as practicable" was denied. Vintage Hospitality Group LLC v. Nat'l Trust Ins. Co., 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). Vintage owned hotels, one of which was struck by a severe hailstorm on July 21, 2018. Vintage was not aware of roof damage until two months after the storm, and did not make the connection between the hailstorm and roof damage until February 2020, when it reported the damage to National. The claim was denied because it was not reported "as soon as practicable" as required by the policy. Vintage sued and National moved for summary judgment. Vintage did not notice the leaks until September 2018. The focus was on fixing the leaks, and connection to the hailstorm did not register. The leaks persisted over the next year and a half. A construction company was called in to evaluate the leaking roof. The construction company advised that the roof had experienced previous hail damage which was causing the leaks. At this point, Vintage connected the damage to the hailstorm. A claim was promptly submitted to National, which denied the claim. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Final Rule Regarding Project Labor Agreement Requirements for Large-Scale Federal Construction Projects

January 29, 2024 — Aaron C. Schlesinger & Julia Loudenburg - Peckar & Abramson, P.C.
Beginning on January 22, 2024, in compliance with President Biden’s February 4, 2022 Executive Order, 14603, federal construction projects with a total estimated cost of $35 million are required to utilize a project labor agreement (“PLA”) unless the contracting agency grants an exception. The Federal Register estimates that this rule will impact approximately 119 IDIQ contracts each year; these contracts have an average award value of about $114 million. The White House claims the PLAs will improve projects by:

Eliminating project delays from labor unrest, such as strikes;
Creating dispute resolution procedures and cooperation for labor-management disputes, such as those over safety;
Including provisions “to support workers from underserved communities and small businesses”;
Helping to create a steady pipeline of workers for federal projects; and
Promoting competition on government contracts so that all builders, even those who are non-union, can bid on jobs that require a PLA.

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Reprinted courtesy of Aaron C. Schlesinger, Peckar & Abramson, P.C.
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com

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