The Cross-Party Exclusion: The Hazards of Additional Named Insured Provisions
July 19, 2021 —
Laurie A. Stanziale - ConsensusDocsMost construction contracts contain insurance provisions setting forth the insurance required of the contractor or other downstream parties. Some provisions are detailed and lengthy while others are short and sweet, but all are of critical importance and should be fully understood by the contractor before signing the contract. Also, every insured should understand not only what the contract requires but more importantly what the actual policy states, as the policy, not the contract, will govern whether or not there is coverage. It is possible that certificates received will match the contractual requirements, but much of what the policy covers is not reflected on a certificate. Lurking behind the certificate is the policy, which is where the actual coverage lies. The endorsements or exclusions to the policy can make the certificates worthless pieces of paper.
There are many exclusions that can cancel coverage for the work a contractor may perform. Height exclusions, residential exclusions, EFIS exclusions and many more, focus on the type of work or materials that the contractor is performing or using. One exclusion, however, focuses on who is insured and that exclusion alone can eliminate all coverage.
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Laurie A. Stanziale, Fox Rothschild LLP (ConsensusDocs)Ms. Stanziale may be contacted at
lstanziale@foxrothschild.com
Fifth Circuit Finds Duty to Defend Construction Defect Case
March 14, 2022 —
Tred R. Eyerly - Insurance Law HawaiiReversing the judgment of the district court, the Fifth Circuit found the insurer owed a defense in a construction defect case. Siplast, Inc. v. Emplrs Mut. Cas. Co., 2022 U.S. App. LEXIS 795 (5th Cir. Jan. 11, 2022).
The Archdiocese of New York sued various parties for a roofing project at a high school in the Bronx. Siplast, the roofing manufacturer, was included as a defendant. The underlying lawsuit arose from the Archdiocese purchase of a roof membrane system from Siplast. Siplast guaranteed that the roof membrane system would remain "in a watertight condition for a period of 20 years . . . or Siplast will repair the Roof Membrane System at its own expense."
After installation of the roof, school officials noticed water damage in the ceiling tiles throughout the school after a rain storm. Siplast attempted to repair the damage, but was unsuccessful. Siplast later informed the Archdiocese that the guarantee would not be honored regarding any permanent improvements of the roof. The Archdiocese filed suit against Siplast and the installing contractor. The cause of action against Siplast was for breach of the guarantee.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Designer of World’s Tallest Building Wants to Turn Skyscrapers Into Batteries
July 31, 2024 —
Will Wade - BloombergThe architecture firm that designed the world’s tallest building is considering ways to build skyscrapers that can store energy using gravity.
Skidmore, Owings & Merrill LLP has developed a series of prototype designs that use electric motors to elevate massive blocks, creating potential energy that can be converted into electricity when the blocks are lowered. The designs are based on technology developed by partner Energy Vault Holdings Inc. as an alternative to lithium-ion batteries and other types of chemical cells. They are seeking developer partners interested in offsetting greenhouse gas pollution from buildings, which the United Nations estimates are responsible for almost 40% of global emissions.
The concept is similar to widely used pumped hydroelectric plants. Energy Vault completed its first major project this month near Shanghai, a stand-alone storage system that can supply as much as 25 megawatts of power for four hours. Other companies are testing new types of gravity storage systems, including ones using abandoned oil wells and mines.
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Will Wade, Bloomberg
Texas Federal District Court Dismisses COVID-19 Claim
October 25, 2020 —
Tred R. Eyerly - Insurance Law HawaiiJudge Ezra, formerly on the bench in Hawaii, dismissed a COVID-19 claim pursued by a Texas policy holder. Diesel Barbershop, LLC v. State Farm Lloyds, 2020 U.S. Dist. LEXIS 147276 (W.D. Texas Aug. 13, 2020).
Local and state officials in Texas issued shutdown orders in March 2020 due to the spread of the cornavirus. All non-essential businesses, including the insureds' barbershop businesses, were ordered closed from April 2, 2020 until April 30, 2020. The insureds submitted a claim for business interruption and civil authority coverage to their carrier, State Farm. The claim was denied based on the policy's exclusion for loss caused by enforcement of ordinance or law, virus, and consequential losses. For Civil Authority coverage, State Farm contended the policy required that there by physical damage within one mile of the described property and that the damage be the result of a Covered Cause of Loss, which, State Farm asserted, a virus was not.
The insureds sued and State Farm moved to dismiss. The court noted cases in which courts had found physical loss even without tangible destruction to the covered property. Yet, the court found that the line of cases requiring tangible injury to property were more persuasive. Therefore, the court found that the insureds failed to plead a direct physical loss.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Courthouse Reporter Series: The Bizarre Case That Required a 117-Year-Old Expert
December 04, 2023 —
Todd Heffner & Di'Vennci Lucas - The Dispute ResolverA recent decision by the Georgia Court of Appeals, Munro v. Georgia Department of Transportation, highlights how overly specific and inflexible rules of evidence can create peculiar results.
Munro involved a dispute over the design of a Georgia intersection. No. A23A0404, 2023 WL 4194716 (Ga. Ct. App. June 27, 2023). The plaintiff alleged that the defendant improperly designed the intersection, never corrected that improper design, and failed to properly maintain the intersection. These claims were dismissed for a very odd reason: the plaintiff’s expert witness wasn’t old enough.
The case arose from a car accident. A vehicle in which the plaintiff Munro was a passenger collided with a tractor trailer crossing an intersection. Munro sued the Georgia Department of Transportation (DOT) for negligently designing, maintaining, and inspecting the intersection. The DOT filed a motion to dismiss for lack of subject matter jurisdiction on the ground of sovereign immunity and a motion to exclude the testimony of the Munros’ expert witness, among other motions. The trial court dismissed the case in full on the sovereign immunity ground and denied the other motions as moot. The Munros appealed.
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Todd Heffner, Troutman Pepper and
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Mr. Heffner may be contacted at
todd.heffner@troutman.com
Microwave Transmission of Space-Based Solar Power: The Focus of New Attention
July 24, 2023 —
Robert A. James & William E. Fork - Gravel2Gavel Construction & Real Estate Law BlogScientists have long proposed that solar electricity generation in space could be an integral component of the world’s carbon-free future. In the 1970s, a U.S. Navy experiment showed that it might be possible to capture solar power and wirelessly transmit it from outer space using microwave beams. Progress stalled after that early test—the models used were at such a massive scale that creating a real-world system felt like science fiction. Recently, amid growing concerns about power grid security and intensifying legislation around carbon emissions, renewed attention focused on a smaller, more lithe microwave transmission system. This time around, the military is not the only interested party. Scientists around the world are conducting similar research. As investors and governments stand at the edge of a fresh green power opportunity, we look at microwave power transmission and some of the projects in this emerging field.
The basic premise of space-based solar power technology is simple enough: photovoltaic panels on a satellite in space convert the sun’s energy to electromagnetic waves at microwave frequencies. The satellite then beams the microwave energy to a receiver on Earth that transforms it into direct current. Until recently, this technique had been performed on the ground over short distances, but nobody had attempted to launch a solar panel into space. The status quo has shifted over the past few years as researchers have begun to send prototypes into orbit. In early 2023, CalTech was the first to report a breakthrough. Its model successfully beamed power from space back to their receiver atop a building in California.
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Robert A. James, Pillsbury and
William E. Fork, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Fork may be contacted at william.fork@pillsburylaw.com
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Las Vegas HOA Case Defense Attorney Alleges Misconduct by Justice Department
November 05, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to the Las Vegas Review-Journal, "Daniel Albregts, who represents Benzer, filed court papers accusing Justice Department lawyers of misconduct that allowed the newspaper to obtain what are now sealed FBI and Las Vegas police reports of the failed negotiations in the summer of 2011." Albregts claimed that "prosecutors promised lawyers for Benzer’s co-defendant, attorney Keith Gregory, that they would not object if the lawyers filed reports of the negotiations under seal in a related matter in September, but then turned around in court and told a federal judge the reports should be made public."
The investigative reports had been sealed, however, "after prosecutors argued to make them public, U.S. Magistrate Judge George Foley Jr. ordered them unsealed." The reports were sealed again two days later, but the media (including the Las Vegas Review-Journal) obtained the documents while they were public.
“This conduct, when viewed in the light of the ceaseless and inflammatory reporting, particularly with regard to this defendant, is the kind of conduct which can only be remedied through dismissal,” Albregts wrote, as quoted in the Las Vegas-Review Journal.
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Washington, DC’s COVID-19 Eviction Moratorium Expires
August 23, 2021 —
Zachary Kessler, Amanda G. Halter & Adam Weaver - Gravel2Gavel Construction & Real Estate Law BlogThroughout the COVID-19 pandemic, federal and local governments have adopted varying moratoria on evictions, enacted as emergency legislative protections for tenants facing eviction. The federal moratorium on eviction, promulgated by the Centers for Disease Control and Prevention (CDC), is set to expire on July 31. While the Supreme Court recently left the moratorium in place, the Court signaled that it would likely be held unconstitutional if extended and challenged again. With the sole federal moratorium expiring, state and local protections may remain in effect; however, many of these local orders are also beginning to expire. Washington, DC’s eviction moratorium, one of the most tenant-friendly pieces of emergency legislation in the country, is one such example, beginning a phaseout process that allows the pace of evictions to slowly begin throughout 2021 before a final legislative sunset in February 2022.
In response to the COVID-19 pandemic, the Council of the District of Columbia and Mayor Muriel Bowser enacted a series of public health emergency legislation. Under the Coronavirus Omnibus Emergency Amendment Act of 2020, the Council put a pause on evictions for nonpayment of rent or violations of lease provisions, prohibiting landlords from filing a complaint to evict a tenant who detained “possession of real property without right” or whose “right to possession has ceased.” Under the moratorium, the Council effectively banned residential evictions, unless a court found that a tenant had performed an “illegal act” within the rental unit, that the tenant was causing undue hardship on the health, welfare, and safety of other tenants or neighbors, or that the tenant had abandoned the premises. The moratorium and other tenant-protections were initially set to remain in place indefinitely, expiring 60 days after the end of Mayor Bowser’s declared COVID-19 emergency period.
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Zachary Kessler, Pillsbury,
Amanda G. Halter, Pillsbury and
Adam Weaver, Pillsbury
Mr. Kessler may be contacted at zachary.kessler@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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