Norfolk Southern Agrees to $310M Settlement With Feds Over 2023 Ohio Derailment
June 21, 2024 —
James Leggate - Engineering News-RecordNorfolk Southern Corp. has agreed to pay more than $310 million and implement safety improvements as part of a settlement with the U.S. Environmental Protection Agency and U.S. Dept. of Justice over the disastrous February 2023 train derailment in East Palestine, Ohio, officials and the company announced May 23.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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The Contingency Fee Multiplier (For Insurance Coverage Disputes)
September 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesThe contingency fee multiplier: a potential incentive for taking a case on contingency, such as an insurance coverage dispute, where the insured sues his/her/its insurer on a contingency fee basis.
In a recent property insurance coverage dispute, Citizens Property Ins. Corp. v. Agosta, 43 Fla.L.Weekly, D1934b (Fla. 3d DCA 2018), the trial court awarded the insured’s counsel a contingency fee multiplier of two times the amount of reasonable attorney’s fees. The insurer appealed. The Third District affirmed the contingency fee multiplier.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
2023’s Bank Failures: What Contractors, Material Suppliers and Equipment Lessors Can Do to Protect Themselves
May 15, 2023 —
Garret Murai - California Construction Law BlogIt has been a tumultuous year for the banking industry. Since the beginning of this year the industry has seen the collapse of Silicon Valley Bank and Signature Bank, the shotgun marriage between failing Credit Suisse and USB, and, most recently, the collapse of First Republic Bank this past week and its purchase by JP Morgan Chase. Indeed, according to the New York Times, these three bank failures cum bailouts alone were bigger than the 25 banks that collapsed during the financial crises of 2008 and some are concerned that it is just the beginning.
This, of course, has impacted the stock market, with Forbes reporting that the banking industry lost more than $300 billion in market value as of the end of March. However, it also raises concerns regarding liquidity on construction projects.
While the failing banks have either been bought out by other banks or shored up by the federal government, which, in the case of Silicon Valley Bank and Signature Bank, involved the Federal Deposit Insurance Corporation (FDIC), the Treasury Department and the Federal Reserve stepping into to protect depositors by
guaranteeing deposits in excess of the current FDIC limit of $250,000, there continues to be concerns over access to cash. This can impact construction projects in several ways.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Texas Court of Appeals Conditionally Grant Petition for Writ of Mandamus to Anderson
April 25, 2011 —
Beverley BevenFlorez CDJ STAFFThe Texas Court of Appeals conditionally grant mandamus relief to Anderson Construction Company and Ronnie Anderson (collectively “Anderson”)… from the trial court in a construction defect lawsuit filed by Brent L. Mainwaring and Tatayana Mainwaring. See Tex. Prop. Code Ann. 27.001-.007 (West 2000 & Supp. 2010). Relators contend the trial court abused its discretion by compelling discovery while the case was abated by operation of law.
The Court of Appeals opinion describes what led up to the proceedings: “The Mainwarings’ original petition identified certain defects in their Anderson-constructed home. Those defects concerned the roof trusses and framing, air conditioning, mortar and masonry, exterior doors and windows, and weep holes. With respect to the five areas of defects identified in their original petition, the Mainwarings gave Anderson the statutorily required notice on January 13, 2010. After implementing agreed extensions, Anderson made an offer of settlement for the defects the Mainwarings identified in their notice. Almost eight months later, the Mainwarings filed an amended petition adding defects they had not included in their original petition and notice. The additional defects the Mainwarings included in their amended petition had not been addressed by Anderson’s offer of settlement.”
Following these events, Anderson claimed the Mainwarings did not respond in writing to their settlement offer. “Anderson filed a verified plea in abatement on December 2, 2010. In the trial court, Anderson claimed that the Mainwarings failed to respond in writing to Anderson’s settlement offer, as required by Section 27.004(b) of the RCLA. See Tex. Prop. Code Ann. 27.004(b)(1). The Mainwarings moved to compel discovery responses from Anderson. The Mainwarings alleged that they rejected Anderson’s settlement offer, and that if their response was insufficient, they contend that Anderson’s offer was rejected by operation of law on the twenty-fifth day after the Mainwarings received it. See Tex. Prop. Code Ann. 27.004(i). The Mainwarings’ motion to compel was not supported by affidavit. See Tex. Prop. Code Ann. 27.004(d)(2). On January 13, 2011, Anderson filed a verified supplemental plea in abatement. Anderson alleged that the Mainwarings failed to provide written notice concerning the newly alleged defects and complained the Mainwarings were attempting to circumvent the inspection and resolution procedure of the RCLA. Over Anderson’s objection that the lawsuit had been abated, the trial court granted the Mainwarings’ motion to compel discovery.”
After listening to both sides, the Court of Appeals offered this reasoning for their opinion: “The parties do not dispute that Anderson inspected the property before the Mainwarings alleged the existence of additional defects in their amended pleading, nor do the Mainwarings claim that Anderson has been given an opportunity to inspect the additional defects the Mainwarings identified in their amended pleadings. We conclude the trial court did not have the discretion to deny or lift the abatement until the Mainwarings established their compliance with the statute. In other words, the Mainwarings are required to provide Anderson a reasonable opportunity to inspect the additional defects identified by their amended pleading, which will allow Anderson the opportunity to cure or settle with respect to the newly identified defects.”
The Court of Appeals spoke directly on the issue of mandamus relief: “The Mainwarings contend that mandamus relief is not available because the trial court’s ruling does not prevent Anderson from making settlement offers during the discovery process. ‘An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments.’ In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). The failure to abate a case is typically not subject to mandamus. See In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002) (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985)). In this case, however, the case was abated by operation of law. By ignoring the statutory abatement, the trial court interfered with the statutory procedure for developing and resolving construction defect claims. See In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 525 (Tex. App. Houston [14th Dist.] 1998, orig. proceeding) (An appeal provides an inadequate remedy for the trial court’s failure to observe automatic abatement pursuant to the RCLA.). The benefits of mandamus review are not outweighed by the detriments of mandamus review in this case.“
In conclusion, “The trial court had no discretion to compel discovery while the case was abated, and Anderson, who has been compelled to respond to discovery during a period the case was under an automatic abatement, has no adequate remedy on appeal. Accordingly, we conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to vacate its order of February 3, 2011, and fails to refrain from proceeding with the case until a motion to reinstate is filed that establishes compliance with the notice and inspection requirements of the Residential Construction Liability Act.”
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Jury Trials and Mediation in Philadelphia County: Virtually in Person
July 27, 2020 —
Andrew F. Susko, Robert G. Devine & Daniel J. Ferhat - White and Williams LLPWhen will the trial court in Philadelphia County be open for jury trials in civil actions? While a precise prediction, given the current state of our trial courts in the middle of the COVID-19 pandemic, is difficult to make, what is known is that the use of virtual technology is likely permanently changing the landscape of civil litigation, including depositions, mediation, and other forms of alternative dispute resolution. Even civil jury trials, at least in the near term and during the pandemic, are being conducted virtually, either by private agreement, or through the courts, as is occurring in Texas and most recently in Florida with its pilot virtual trial program in five of its trial courts. While it is necessary at present for the parties to consent to a virtual trial, courts may ultimately compel the parties’ participation. Regardless, litigants and their counsel are well advised to understand the complexities and manner of a virtual trial.
Seasoned trial attorneys have long experienced and are comfortable with virtual depositions bringing distant counsel, parties and witnesses together through technology to present testimony. The use of virtual technology as a means for court arguments and hearings, mediation, and alternative dispute resolution, while novel and emerging as the new normal, is territory where a comfort level can be achieved. And while distinctions most assuredly exist, recent experience has demonstrated that court arguments, mediations and depositions can be conducted effectively remotely and virtually. Legal issues certainly do remain in the context of the deposition of parties to a civil action regarding whether a lawyer’s physical presence in the same room with a party-witness can be demanded, and whether courts would compel a virtual deposition during the COVID-19 pandemic where such physical presence of a party and their attorney could not be achieved. Undoubtedly these issues will be resolved, likely sooner than later, given the scope of the pandemic in certain areas.
Reprinted courtesy of White and Williams LLP attorneys
Andrew F. Susko,
Robert G. Devine and
Daniel J. Ferhat
Mr. Susko may be contacted at suskoa@whiteandwilliams.com
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com
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“Professional Best Efforts” part 2– Reservation of Rights for Engineers who agree to “best” efforts? (law note)
April 20, 2017 —
Melissa Dewey Brumback - Construction Law in North CarolinaRecently, a reader reached out to me to ask about case examples of an engineer losing his insurance coverage because he agreed to a “heightened” or “best” standard of care. The reader stated that he was an insurance adviser who handled various construction professional coverages, and that in his experience it was very unusual to deny or limit damages because of a heightened standard of care.
This comment led me to an informal survey of several insurance brokers that I deal with, and the general consensus is that instead of outright denying a claim, most E&O insurers will issue a “reservation of rights” letter. What that means is that the insurance company will defend the claim (i.e., pay for your lawyer to defend you and your Firm), but with the understanding that they are (potentially) denying any liability for any adverse money judgment against you.
Inevitably, most such cases settle, but if they do not, the question then is whether the heightened duty created part of the damages. The insurer may ask to intervene in the lawsuit to ask the jury that question, in an effort to limit its share of the damages.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
Why Financial Advisers Still Hate Reverse Mortgages
October 01, 2014 —
Ben Steverman – BloombergA reverse mortgage is a little like a car airbag. It's nice to know it's there. But if it ever has to be used, the driver’s already in trouble.
New regulations are supposed to improve the unsavory reputation of reverse mortgages, which are loans against a home that don't need to be repaid until the borrower moves. "It used to be the Wild West out there, without much regulation and enormous fees," says financial planner Warren Ward.
While stronger oversight is helping to end past abuses, the number of people taking out reverse mortgages is shrinking. The pace is down 24 percent from last year, government data show, and less than half its peak in 2009. One reason: Many advisers say the loans remain a last resort and can handcuff homeowners who have better options.
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Ben Steverman, BloombergMr. Steverman may be contacted at
bsteverman@bloomberg.net
Court Holds That Self-Insured Retentions Exhaust Vertically And Awards Insured Mandatory Prejudgment Interest in Stringfellow Site Coverage Dispute
October 19, 2017 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn State of California v. Continental Ins. Co. (No. E064518; filed 9/29/17), a California appeals court ruled that after Continental was ultimately held to pay its policy limits for remediation of the Stringfellow hazardous waste site, the insured State of California was entitled to mandatory prejudgment interest on the full amount dating back to 1998, when a federal district court had issued a judgment under F.R.C.P. 54 declaring the State liable under both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state law. To get there, the state appeals court held that vertical exhaustion applied to the attachment of Continental’s excess policies.
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Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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