Fact of Settlement Communications in Underlying Lawsuits is Not Ground for Anti-SLAPP Motion in Subsequent Bad Faith Lawsuit
August 24, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (No. G057796, filed 5/27/20, ord. pub. 6/18/20), a California appeals court ruled that an insurance bad faith lawsuit alleging a variety of claim handling misconduct in defending the insured was not subject to an insurer’s special Strategic Lawsuit Against Public Participation (SLAPP) motion to strike because, while the alleged acts were generally connected to litigation, they did not include any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body and, therefore, did not constitute protected activity under California’s anti-SLAPP statute.
In Trilogy Plumbing, the policyholder was sued in 33 different construction defect lawsuits, some of which Navigators defended, and others which were denied or had the defense withdrawn. The Navigators’ policies were subject to a $5,000 deductible, and Trilogy alleged that Navigators breached the contracts by “demanding deductible reimbursement amounts greater than the policies’ $5,000 stated deductible, and by seeking reimbursement of ordinary defense fees and expenses as if they were subject to deductible reimbursement,” “claiming a right to seek reimbursement from Trilogy for defense fees and expenses Navigators paid for the benefit of third-party additional insureds,” “providing conflicted defense counsel who took instructions only from Navigators without disclosing conflicts of interest,” “failing to reasonably settle cases and by withdrawing [the] defense as a strategic means of trying to force Trilogy to fund its own settlements,” “misrepresenting its deductible provisions,” “refusing to account for deductible amounts it charges and collects,” and others.
Reprinted courtesy of
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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Texas Construction Firm Officials Sentenced in Contract-Fraud Case
August 07, 2018 —
Tom Ichniowski – Engineering News-RecordTwo top officials of a Texas construction company—Honest, Experienced, Reliable Contracting Solutions LLC—have been sentenced to federal prison terms for defrauding the State Dept. through a plan to steer more than $1 million in contracts to the company, the Dept. of Justice says.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Eleventh Circuit’s Noteworthy Discussion on Bad Faith Insurance Claims
November 01, 2021 —
David Adelstein - Florida Construction Legal UpdatesThe Eleventh Circuit Court of Appeal’s opinion in Pelaez v. Government Employees Insurance Company, 2021 WL 4258821 (11th Cir. 2021) is a non-construction case that discusses the standard for pursuing a bad faith claim against an insurer. This case dealt with an automobile accident. While the facts of the case are interesting and will be discussed, the takeaway is the Eleventh Circuit’s noteworthy discussion on the standard for bad faith claims and how they should be evaluated. This discussion is included below–with citations–because while the term “bad faith” is oftentimes thrown around when it comes to insurance carriers, there is indeed an evaluative standard that is applied to determine whether an insurance carrier acted in bad faith.
In Pelaez, a high school student driving a car crashed with a motorcycle. The motorcycle driver was seriously injured and airlifted to the hospital. The accident was reported to the automobile liability insurer of the driver of the car. The insurer through its investigation initially believed the motorcycle driver was contributory negligent. Eleven days after the crash, after learning additional information, the insurer tendered its bodily injury policy limits of $50,00 to the motorcycle driver even though it never received a settlement demand. The insurer sent a tender package to the motorcycle driver’s lawyer that included a $50,000 check for the bodily injury claim and a proposed release. The accompanying letter told the attorney to contact the insurer with any questions about the release and to edit the proposed release with suggested changes. The insurer also wanted to inspect the motorcycle in furtherance of adjusting the property damage claim which also had a policy limit of $50,000. A location of where the motorcycle could be inspected was never provided.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Is Solar the Next Focus of Construction Defect Suits?
June 28, 2013 —
CDJ STAFFThere’s been a rapid growth in the sale of solar panels, and that’s lead some industry observers to wonder if manufacturers have been cutting back on quality. Current use of solar is six times what it was in 2008, with more than forty percent of that in the last year. The growth shows no sign of stopping, either. The Solar Energy Industry Association expects the amount of power generated by solar to increase by more than two-thirds in 2013.
With the oversupply, some fear that companies are relaxing their quality control. The New York Times found that there were widespread problems of defective units in solar cells, chiefly those manufactured in China. The Times article noted that at two solar plants in Spain, defect rates reached 34.5 percent.
Some industry observers disagree. The Insurance Journal quoted Andy Klump, the CEO of Clean Energy Associates, a Shanghai firm that provides quality assurance in the solar industry, who said that if a business had a 34 percent failure rate, “they would be out of business in a heartbeat.” Mr. Klump described the Times article as “not realistic.”
If the Times is right, Scott Turner, a construction insurance attorney, feels that the industry should ready itself for “a wave of large lawsuits.” Turner feels that “this litigation wave could make the battles over liability and insurance coverage for Chinese drywall seem like a small claims dispute.”
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Mid-Session Overview of Colorado’s 2017 Construction Defect Legislation
March 16, 2017 —
David McClain - Colorado Construction LitigationAs the 2017 Colorado legislative session reaches the halfway point, I thought it an opportune time to provide a quick overview of the construction defect bills introduced so far this session.
Senate Bill 17-045, “Concerning a Requirement for Equitable Allocation of the Costs of Defending a Construction Defect Claim,” sponsored by Senators Grantham and Angela Williams and Representatives Duran and Wist, was introduced on January 11th and assigned to the Senate Business, Labor, and Technology Committee. This bill affects construction defect actions in which more than one insurer has a duty to defend a party by providing that if the carriers cannot agree regarding how to allocate defense costs within 45 days of the filing of a contribution action, a court must conduct a hearing regarding the apportionment of the costs of defense, including reasonable attorneys’ fees, among all carriers sharing in the duty to defend within 60 days after an insurer files its claim for contribution, unless the carriers agree to resolve the issue through a mutually agreeable, alternative process. The bill further provides that the court must make a final apportionment of costs after entry of a final judgment resolving all of the underlying claims against the insured. The bill also makes clear that an insurer seeking contribution may also make a claim against an insured or additional insured who chose not to procure liability insurance during any period of time relevant to the underlying action. Finally, the bill states that a claim for contribution may be assigned and that bringing such a claim does not affect any insurer’s duty to defend. The Senate Business, Labor, and Technology Committee heard SB 17-045 on February 8th and referred the bill, as amended, to the Senate Appropriations Committee.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Circumstances In Which Design Professional Has Construction Lien Rights
February 24, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are a design professional (architect, landscape architect, interior designer, engineer, surveyor, or mapper) you have construction lien rights in the event you are not paid. This does not mean your lien rights are absolute so it is important to understand the circumstances which allow you to record a construction lien on a project. These circumstances are contained in Florida Statute s. 713.03:
(1) Any person who performs services as architect, landscape architect, interior designer, engineer, or surveyor and mapper, subject to compliance with and the limitations imposed by this part, has a lien on the real property improved for any money that is owing to him or her for his or her services used in connection with improving the real property or for his or her services in supervising any portion of the work of improving the real property, rendered in accordance with his or her contract and with the direct contract.
(2) Any architect, landscape architect, interior designer, engineer, or surveyor and mapper who has a direct contract and who in the practice of his or her profession shall perform services, by himself or herself or others, in connection with a specific parcel of real property and subject to said compliances and limitations, shall have a lien upon such real property for the money owing to him or her for his or her professional services, regardless of whether such real property is actually improved.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up
September 28, 2017 —
Christopher G. Hill - Construction Law MusingsAs long time (and possibly recent) readers of Construction Law Musings know, I am a Virginia Supreme Court Certified Mediator. In that capacity, I spend quite a bit of time sitting in general district court courtrooms in places like Goochland and Caroline Counties “court sitting” awaiting a referral from the judge of a case with parties ready and willing to take advantage of the mediation process.
As I sit there wearing my mediator “hat,” I see case after case be called for the first return date. Without fail, several cases are called where the defendant fails to appear after being served with process. There are even a case or two where the plaintiff (the party that picked the return date in the first place) fails to appear. In the first instance, where the defendant doesn’t appear, the judge almost inevitably enters a judgment for the amount sued for by the plaintiff. In the latter instance, the case is dismissed without prejudice to the plaintiff with a shake of the head by the judge at the wasted time and filing fee. This post focuses on the first case.
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Christopher G. Hill, Law Offices of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
'There Was No Fighting This Fire,' California Survivor Says
September 14, 2020 —
The Associated Press (Brian Melley & Terence Chea) - BloombergBerry Creek, Calif. (AP) -- John Sykes built his life around his cabin in the dense woods of Northern California. He raised his two children there, expanded it and improved it over time and made it resilient to all kinds of disaster except fire.
So when the winds started howling Tuesday and the skies became so dark from smoke that he had to turn on his lights at midday, he didn’t hesitate to leave it all behind in an instant before any evacuation order.
With the disaster two years ago in nearby Paradise, in which 85 people perished in the deadliest and most destructive fire in modern state history, still fresh on his mind, Sykes got his wife and a friend into his car and left with only a change of clothes each.
“All I could do is look in the rear view mirror and see orange sky and a mushroom cloud and that told me it was hot and to keep going,” Sykes said Friday. “It was a terrifying feeling.”
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Bloomberg
