Res Judicata Bars Insured from Challenging Insurer's Use of Schedule to Deduct Depreciation from the Loss
June 10, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe insured was barred by res judicata from filing a second lawsuit challenging the insurer's method of establishing the amount of the loss. Burke v. GeoVera Spec. Ins. Co., 2024 U.S. App. LEXIS 9186 (5th Cir, April 16, 2024).
On August 29, 2021, Hurricane Ida caused wind damage to the Burkes' home. They filed a claim with their insurer, GeoVera Specialty, and received payment. In calculating the payment, GeoVera Specialty adjusted the damage claim pursuant to its Roof System Payment Schedule, which lists the criteria used in reducing roof damage claims based on depreciation. Based on that schedule, GeoVera Specialty reduced the roof damage component of the Burkes' claim by forty-eight percent.
In March 2022, the Burkes filed suit alleging that GeoVera Specialty undervalued their claim. On September 8, 2022, the parties filed a joint motion to dismiss the lawsuit after reaching a settlement, which the district court granted.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Boots on the Ground- A Great Way to Learn and Help Construction Clients
May 02, 2022 —
Christopher G. Hill - Construction Law MusingsThis past week, I attended the Construction Law and Public Contracts seminar in Charlottesville, VA and also a breakfast meeting of the Richmond chapter of the Associated General Contractors of Virginia. Reflecting on this past week, I realized that my membership and participation in both of these great organizations (I am a member of the Board of Governors for the state bar section and the Executive Committee for the Richmond District of AGC-VA) not only provides great marketing and friendship opportunities, participation helps my construction clients in ways that a singular online marketing and interactive path would not (even with the growth of social media).
Among other benefits (including case digests and the insightful newsletter), being a member of the Construction Law and Public Contracts section helps my clients in numerous ways, not the least of which is the ability to network and gain the perspective of many of the great construction attorneys here in Virginia. The ability to bounce legal thoughts off of others for their perspectives gives me the benefit of their experiences and, importantly to my clients, allows me to be more efficient in my research and arguments because of their insight.
Additionally, as a solo construction attorney, knowing other attorneys in other parts of the Commonwealth of Virginia gives me a network of trusted lawyers to whom I can safely and confidently refer a case where a conflict exists or other factors (like geography) make such a referral a benefit to a construction firm in need of legal assistance on a particular matter.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Insurer Obligated to Cover Preventative Remediation of Construction Defects
November 06, 2013 —
CDJ STAFFA recent Texas construction defect case gets covered on a blog post on the web site of Manatt, Phelphs & Phillps, LLC. In the case, the home builder built homes using EIFS which later had problems with mold, mildew, and structural damage. The home builder remediated all of the homes in the project, not just those that had experienced problems with the EIFS.The home builder’s insurers refused to cooperate. Various insurers settled with the home builder, leaving only Markel America Insurance Company.
Markel refused coverage on the grounds that proactively replacing the EIFS to preclude damage meant that there was no damage for their policy to cover. The policy also read that “no insured, except at their own cost, [may] voluntary make any payment, assume any obligation, or incur any expense,” unless Markel agreed to it. But the Texas Supreme Court ruled that “Markel failed to prove that it was prejudiced in any way by the home builder’s settlements,” which was a necessary condition for the cited clause. The Texas Supreme Court ruled that Markel was obligated to indemnify the home builder.
The court also concluded that the damage occurred during the coverage period and that “all 465 houses at issue suffered property damage during the policy period.”
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$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed to Prove Supplier’s Negligence or Breach of Contract Caused an SB800 Violation
November 21, 2017 —
Jon A. Turigliatto, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinOriginally published by CDJ on March 16, 2017
Acqua Vista Homeowners Assoc. v. MWL Inc. (2017) 2017 WL 371379
COURT OF APPEAL EXTENDS GREYSTONE HOMES, INC. v. MIDTEC, INC., HOLDING THAT CIVIL CODE §936 CREATES A NEGLIGENCE STANDARD FOR CLAIMS AGAINST MATERIAL SUPPLIERS BROUGHT UNDER SB800.
The Fourth District California Court of Appeal recently published its decision Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 2017 WL 371379, holding that claims against a material supplier under SB800 (Civil Code §895 and §936) require proof that the SB800 violation was caused by the supplier's negligence or breach of contract.
Civil Code §936 states in relevant part, that it applies "to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract .... [T]he negligence standard in this section does not apply to any general contractor, subcontractor, material supplier, individual product manufacturer, or design professional with respect to claims for which strict liability would apply."
Reprinted courtesy of
Jon A. Turigliatto, Esq., Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Esq., Chapman Glucksman Dean Roeb & Barger
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Construction Defects Checklist
July 18, 2018 —
Bremer Whyte Brown & O’MearaConstruction defects have existed since humans first began building structures, and will continue to be an occurrence into the future. For builder developers, contractors, and subcontractors, the specter of construction defects is a constant worry. Construction defect litigation is commonplace and can occur years after the construction project has been completed. This opens up an ongoing channel of risk and liability for construction contractors and project managers that are at risk of litigation far after they have completed a project. In this article, we’ll provide a helpful construction defects checklist that outlines the key avenues of risk and areas where construction defects litigation is most often focused. This checklist can help project managers, contractors, and subcontractors anticipate areas of their projects that may need extra attention or focus in order to ensure that they adhere to relevant local and state construction ordinances.
Gaining a greater understanding of what construction defects are can provide insight into how construction litigation can prove beneficial for structure owners or contractors who received substandard work. Many clients may not understand that they have an avenue to seek redress in cases where faulty workmanship may have resulted in economic damages or safety concerns in their home, building, or another construction project. Understanding the scope of what a construction defect is, and the areas that are most commonly litigated is helpful to understand when construction defect litigation is a viable option to pursue redress.
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Bremer Whyte Brown & O’Meara
Million-Dollar U.S. Housing Loans Surge to Record Level
July 30, 2014 —
Alexis Leondis – BloombergBanks are handing out mortgages of as much as $10 million to the wealthy in record numbers while first-time homebuyers struggle to get loans.
Erin Gorman, managing director at Bank of New York Mellon Corp., said she’s fielding more requests for home loans of at least $2 million than ever before. She recently provided a mortgage of more than $6 million for a client’s purchase of a second property in Colorado.
“These high-net-worth borrowers do act differently than first-time buyers, who borrow because they have to,” said Gorman, who serves as the national mortgage sales director at Bank of New York Mellon’s wealth management group based in Boston. “High-net-worth borrowers don’t have to borrow. They choose to, so they’re very strategic about what, why, and when they borrow.”
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Alexis Leondis, BloombergMs. Leondis may be contacted at
aleondis@bloomberg.net
Municipalities Owe a Duty to Pedestrians Regardless of Whether a Sidewalk Presents an “Open and Obvious” Hazardous Condition. (WA)
February 25, 2014 —
Natasha Khachatourians – Scheer & Zehnder LLP Liability NewsletterIssue: Does a municipality owe a duty to pedestrians to keep sidewalks reasonably safe for their intended use even if the condition of the sidewalk is an open and obvious hazard? YES
Facts: Plaintiff Nanci Millson liked to walk in Lynden, Washington. While plaintiff regularly walked through her neighborhood and knew that various areas of the sidewalk were cracked and lifted, she continued to walk through her neighborhood nonetheless. Plaintiff felt that the sidewalks closer to her neighborhood were in better condition and when she reached an area a block away from her home, she picked up speed even though she was in an area of sidewalk she previously had not walked before. Plaintiff became distracted, tripped on an elevated sidewalk and fell, suffering various injuries.
Plaintiff sued the City of Lynden (“City”) for negligently failing to maintain the sidewalk in a reasonably safe condition. The City argued that the tripping hazard was “open and obvious”, and the trial court granted the City summary judgment. The issue before the Court of Appeals was whether an “open and obvious” condition is a matter of law to be decided by the court.
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Natasha Khachatourians, Scheer & Zehnder LLP Ms. Khachatourians may be contacted at
natashak@scheerlaw.com
Chairman of the Senate Committee on Banking, Housing and Urban Affairs Calls for CFPB Investigation into Tenant Screening Businesses
December 13, 2021 —
Brian H. Montgomery - Gravel2Gavel Construction & Real Estate Law BlogSenator Sherrod Brown (D-OH), Chairman of the Senate Committee on Banking, Housing, and Urban Affairs, has written to
newly confirmed Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra, asking him to review companies in the tenant screening industry for possible Fair Credit Reporting Act violations and other violations of U.S. laws. The CFPB, for its part, has already published a bulletin alerting Consumer Reporting Agencies (CRAs) and other furnishers of consumer information that, as federal, state and local pandemic-related housing protections expire, the Bureau will be giving greater enforcement focus to these businesses’ compliance with accuracy and dispute obligations under the Fair Credit Reporting Act (FCRA) and Regulation V. While it is still unclear whether Director Chopra will direct the Bureau to investigate specific businesses flagged by Chairman Brown, the tenant screening industry will likely face increased scrutiny in the coming months, which may impact their service offerings and cause interruptions for landlords relying on these businesses and services.
There are approximately 2,000 tenant screening companies across the United States. These companies are used by landlords to better identify and perform background checks on prospective tenants. These reports typically provide a prospective tenant’s rental and eviction histories, credit score, debt-to-income ratio, and outstanding credit obligations, among other financial metrics. The reports also usually include a criminal background check, including searches of sex offender registries and other public records searches. Many tenant screening companies then use this information to provide an estimate of the risk that each tenant presents, calculated through proprietary algorithmic formulas. These reports are usually available to landlords at a cost ranging from approximately $5 to $55 per report, usually passed through to the prospective tenant through application fees.
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Brian H. Montgomery, PillsburyMr. Montgomery may be contacted at
brian.montgomery@pillsburylaw.com
