Updated 3/13/20: Coronavirus is Here: What Does That Mean for Your Project and Your Business?
March 16, 2020 —
Alexander Gorelik, Joshua E. Holt, Brian N. Krulick, Shoshana E. Rothman, A. Michelle West, & Brian S. Wood - Smith CurrieThe outbreak of COVID-19 (“coronavirus”) has wreaked a considerable human toll of death, physical suffering, fear, and anxiety internationally. Much of the fear and anxiety results from a lack of information or a full understanding about the spread of the disease, protection against infection, and treatment. At Smith, Currie & Hancock, we urge our clients, friends, and colleagues to take seriously, but calmly and prudently, the threat of this disease to protect yourselves, your loved ones, and your businesses. The first step in that process is to inform yourselves with reliable information. Toward that end, we direct your attention to the Centers for Disease Control and Prevention’s Coronavirus Disease 2019 website: https://www.cdc.gov/coronavirus/2019-ncov/index.html
In addition to the human toll, coronavirus has caused substantial disruptions to economies worldwide. In that regard, the adage “a picture is worth a thousand words,” is particularly foreboding. Satellite images taken by the U.S. National Aeronautics and Space Administration (NASA) of China at the outset of the coronavirus outbreak and approximately a month later show a dramatic decline in air pollution, signifying and illustrating a sharp decline in industrial activity and transportation caused by the disease.
Reprinted courtesy of Smith Currie attorneys
Alexander Gorelik,
Joshua E. Holt,
Brian N. Krulick,
Shoshana E. Rothman,
A. Michelle West, and
Brian S. Wood
Mr. Gorelik may be contacted at agorelik@smithcurrie.com
Mr. Holt may be contacted at jeholt@smithcurrie.com
Mr. Brian may be contacted at bnkrulick@smithcurrie.com
Ms. Shoshana may be contacted at serothman@smithcurrie.com
Ms. West may be contacted at amwest@smithcurrie.com
Mr. Wood may be contacted at bswood@smithcurrie.com
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Court Narrowly Interprets “Faulty Workmanship” Provision
March 28, 2018 —
Jeffrey J. Vita and Thersa A. Guertin – SDV BlogIn a recent victory in their home state of Connecticut, Saxe Doernberger & Vita partners,
Jeffrey Vita and
Theresa Guertin, representing owner-developer 777 Main Street, LLC, overcame a summary judgment motion filed by Liberty Mutual Fire Insurance Company. The Connecticut Superior court refused to adopt the insurer’s broad interpretation of the “faulty workmanship” exclusion in an all-risk builders’ risk insurance policy.
In 2014, 777 Main Street, LLC began renovations on the 27-story former Hartford National Bank building in downtown Hartford, converting the property from an office building to a mixed residential and commercial space. During the renovation, a subcontractor hired to perform the cleaning the concrete façade of the building accidentally over-sprayed the cleaning material onto the property’s windows. The subcontractor’s attempts to clean the overspray further damaged the structural integrity and cosmetic look of the windows. As a result, the owner was forced to replace over 1,800 windows, costing millions.
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. Guertin may be contacted at tag@sdvlaw.com
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Pancakes Decision Survives Challenge Before Hawaii Appellate Court
March 12, 2015 —
Tred R. Eyerly – Insurance Law HawaiiIn 1997, the Hawaii Intermediate Court of Appeals (ICA) decided Pancakes of Hawaii, Inc. v. Pomare Prop. Corp., 85 Haw. 286, 944 P.2d 83 (Haw. Ct. App. 1997). Although not an insurance coverage case, Pancakes addressed the duty to defend in terms of a contractual indemnity obligation. Under challenge in a recent appeal before the ICA, the Court reaffirmed the holding in Pancakes. Arthur v. State of Hawaii, Dept. of Hawaiian Home Lands, 2015 Haw. App. LEXIS 109 (Haw. Ct. App. Feb. 27, 2015).
The decision is long with detailed facts complicated and many indemnities running in favor of various parties. This post focuses on the decision's discussion of Pancakes.
A resident, Mona Arthur, of the Kalawahine Streamside Housing Development, was killed when she apparently slipped and fell from a hillside adjacent to the project. She was on the hillside tending to her garden there. At the bottom of the hill was a two foot fence in front of a drainage ditch, where Mona allegedly hit her head.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Client Alert: Disclosure of Plaintiff’s Status as Undocumented Alien to Prospective Jury Panel Grounds for Mistrial
February 05, 2015 —
R. Bryan Martin, Lawrence S. Zucker II, and Kristian B. Moriarty – Haight Brown & Bonesteel LLPIn Velasquez v. Centrome, Inc. (No. B247080, filed 1/30/2015) the Court of Appeal, Second District, held that a trial judge’s disclosure to the panel of prospective jurors of plaintiff’s status as an undocumented alien was prejudicial and grounds for a new trial.
Plaintiff, Wilfredo Velasquez, brought suit against defendant, Centrome, Inc., alleging personal injuries related to on-the-job exposure to diacetyl, which was purportedly distributed by Centrome.
Prior to trial, numerous motions in limine were filed with the trial court including a motion brought by Plaintiff to preclude Centrome from referring to or making any comments about Mr. Velasquez’s citizenship or immigration status. Plaintiff contended the information was not relevant (as no loss of earnings claim was asserted), and was substantially more prejudicial than probative. Defendant opposed the Motion arguing the information was relevant for the limited purpose of allowing expert testimony about Mr. Velasquez’s inability as an undocumented alien to participate in a lung transplant he claimed was needed. The Court deferred ruling on the motion.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Lawrence S. Zucker II and
Kristian B. Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com;
Mr. Zucker may be contacted at lzucker@hbblaw.com;
and Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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New Green Standards; Same Green Warnings for Architects & Engineers (law note)
January 13, 2014 —
Melissa Dewey Brumback - Construction Law in North CarolinaThe newest version of the LEED ratings system, LEED v4, has officially been released. For a comparison of the major changes between LEED 2009 and LEEDv4, check out this downloadable form from the USGBC.
As the folks at Schinnerer’s pointed out, there is one major change that is fraught with peril for design professionals– the requirement for increased transparency concerning the composition and performance requirements of composition materials.
Notes the insurance carrier:
“While design firms always had a level of responsibility for ongoing product research, the lack of standardized, affirmative industry data made it difficult for design firms and project owners to assess the impact of building materials on human health.
“As with many aspects of sustainability in design and construction, the danger to design firms is likely to come from self-inflicted perils. When a firm accepts responsibility to ‘ensure that a project meets its goals by using the best products that align with project requirements,’ it is essentially giving the project owner a guarantee that is both beyond the firm’s control and uninsurable by any insurance carried by a firm.”
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Melissa Dewey BrumbackMs. Brumback can be contacted at
mbrumback@rl-law.com
Virginia Families Hope to Sue over Chinese Drywall
October 10, 2013 —
CDJ STAFFAlthough Virginia isn't in the Fifth Circuit of the U.S. Court of Appeals, some Virginia homeowners ended up with a case there. And now the court has to decide whether Taishan Gypsum Co. Ltd. can be sued in American courts for defects in its products. The case made its way to Louisiana after the courts consolidated cases from across the country. If the court decides that the homeowners can’t sue, they could appeal to the Supreme Court, although that’s likely a longshot. Or, the homeowners could sue in the Chinese courts, also not likely.
More than 300 homes in Virginia are affected by fumes from the Chinese-made drywall, but only seven residents in the town of Hampton Roads are at the heart of the current case. They were chosen as representative of the entire group. Those seven have been collectively awarded $2.6 million, but the drywall manufacturer is appealing the judgement. If Taishan is victorious, then the damages already awarded will be overturned and there won’t be an option for the others.
The drywall emitted gases which corroded metals in the homes. One couple, Steve and Liz Heischober went through seven air conditioning coils in three years, along with problems with corrosion of appliances and electrical systems. If the current suit succeeds, the Heischobers, and the other, will be compensated for their damages, including the costs of repair and relocation. If Taishan loses, they could be responsible for about $1 billion.
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Brief Overview of Rights of Unlicensed Contractors in California
September 10, 2014 —
William M. Kaufman – Construction Lawyers BlogUnder California Contractor’s State License Law enumerated in Business and Professions Code Sections 7000 to 7191, a contractor may not “bring or maintain” any action for compensation for performing any act or contract for which a license is required unless the contractor was duly licensed “at all times” during performance. Bus & Prof Code Section 7031(a).
What does this mean and who does it include?
This is a question that often has to be answered on a case by case basis. Basically, California does not want unlicensed contractors to be able to get paid for work that should be performed by a licensed contractor. The law has set forth some general parameters. General contractors, subcontractors, and master developers must be licensed. However, suppliers, manufacturers, laborers and equipment lessors are exempt and do not need a contractor’s license. Essentially, those parties that merely furnish material or supplies without fabricating them into, or consuming them in the performance of work, do not need to be licensed. Bus & Prof Code Section 7052.
There are sever fines and penalties for those who improperly perform construction work without a license. A contract between any contractor and an unlicensed subcontractor is a misdemeanor. Lack of a license bars all actions in law or in equity for collection of compensation for the performance of work requiring a license. There are very few exceptions to this rule. A “savvy” unlicensed contractor cannot simply avoid these requirements by “subbing” out all the work to licensed contractors. Any person who uses the services of an unlicensed contractor may file a court action or cross-complaint to recover all payments made to the unlicensed contractor. In addition, a person who uses the services of an unlicensed contractor is a victim of a crime and eligible for restitution of economic losses regardless of whether that person had knowledge that the contractor was unlicensed. Bus. & Prof Code Sections 7028, 7028.16. It goes without saying that performing work without a license on projects is a bad idea.
Reprinted courtesy of
William M. Kaufman, Lockhart Park LP
Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com
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California Rejects Judgments By Confession Pursuant to Civil Code Section 1132
May 08, 2023 —
Drew M. Jorgenson & Louis "Dutch" Schotemeyer - Newmeyer DillionThe Elimination of Judgment by Confession
Following in the footsteps of Massachusetts and Florida, California recently updated California Code of Civil Procedure section 1132 which renders judgments by confession unenforceable and inadmissible in any superior court, effective January 1, 2023. The bar is not retroactive, so judgments by confession obtained or entered before January 1, 2023 are still valid. Moving forward, consider the following.
What is a Judgment By Confession?
A judgment by confession, also known as a confession of judgment or "cognovit" clause, is a mechanism by which a debtor agrees that a creditor may summarily obtain a legal judgment against that debtor and enforce it in the event of the debtor's breach of contract or default. In other words, it is a private admission by a debtor that they are liable for a debt without the need for a trial, and consequently, agree to forfeit very important rights. Most importantly, parties agreeing to such clauses are waiving rights such as the right to notice of the judgment and the right to assert defenses against the creditor or third party's claims. Historically, without any judicial involvement, these types of out-of-court judgments would be enforceable.
Reprinted courtesy of
Drew M. Jorgenson, Newmeyer Dillion and
Louis "Dutch" Schotemeyer, Newmeyer Dillion
Mr. Jorgenson may be contacted at drew.jorgenson@ndlf.com
Mr. Schotemeyer may be contacted at dutch.schotemeyer@ndlf.com
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