How Many Bridges Does the Chesapeake Bay Need?
August 03, 2022 —
Ethan McLeod - BloombergSteve Kline, a 7th-generation Marylander, knows well the vacation tradition of driving across the twin spans of the Chesapeake Bay Bridge for trips to the beach resort of Ocean City. His grandfather, an ironworker, helped build the bridge’s first span, which opened in 1952.
He’s also very familiar with another seasonal rite: wading through the infamous miles-long traffic backups that last from Memorial Day through the end of summer.
But Kline, president of the nonprofit Eastern Shore Land Conservancy, is not on board with the state’s proposed multibillion-dollar fix — a new 4.3-mile-long crossing, to be built alongside the two current spans of the Bay Bridge. In April, the Maryland Transportation Authority (MDTA) announced it had received federal approval to use this route for a potential new, wider bridge that would be likely to eventually replace its older siblings, addressing the notorious summer bottlenecks for decades to come. And on June 10, at a press conference held near the bridge’s eastbound ramp, Maryland Governor Larry Hogan announced that he would commit $28 million in bridge toll revenue to fund the second phase of an environmental impact study on the idea.
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Ethan McLeod, Bloomberg
Wisconsin Court of Appeals Holds Economic Loss Doctrine Applies to Damage to Other Property If It Was a Foreseeable Result of Disappointed Contractual Expectations
January 15, 2019 —
Gus Sara - The Subrogation StrategistIn Kmart Corp. v. Herzog Roofing, Inc., 2018 Wisc. App. Lexis 842, the Court of Appeals of Wisconsin considered whether the economic loss doctrine barred the plaintiff’s negligence claims against the defendant roofer for damages resulting from the collapse of a roof. The Court of Appeals held that, while some of the plaintiff’s property damages were unrelated to the scope of the contract, the economic loss doctrine still applied to those damages because they were a foreseeable result of the defendant’s breach of the contract. This case establishes that in Wisconsin, the economic loss doctrine bars tort claims for damage to property unrelated to the contract if those damages were a reasonably foreseeable risk of disappointed expectations of the contract.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
Is There Direct Physical Loss Under A Property Policy When COVID-19 is Present?
April 06, 2020 —
Tred R. Eyerly - Insurance Law HawaiiMost property policies provide coverage for property damage only when there is "direct physical loss" to covered property. Early indications are that COVID-19 remains on surfaces. The duration can last from a few hours to three weeks, depending on the type of surface material. If an employee is infected and the store or restaurant must closed because the virus may rest on surfaces within the building, is there direct physical loss, even though the building structure itself is unharmed?
To answer this question, cases from jurisdictions outside Hawaii may provide guidance. In a case from Louisiana, the homeowner had to move out of her home when excessive levels of organic lead were discovered in the kitchen, living room, master bedroom, and attic. Widder v. La. Citizens Prop. Ins. Corp., 82 So. 3d 294 (La. Ct. App. 2011). The insurer denied coverage because there was no direct physical loss. The trial court agreed; since the home was still intact, no direct physical loss had occurred, so there was no coverage under the policy. The appellate court reversed. It compared the presence of inorganic lead in the home to cases that found a direct physical loss from the existence of Chinese drywall, from which gaseous fumes were released, rendering the home unusable or uninhabitable. Physical damage was not necessary.
What if smoke from a nearby wildfire fills an outdoor theater, forcing cancellation of performances and loss of business income? This was the situation in Oregon Shakespeare Festival Ass'n v. Great Am. Inc. Co., 2016 U.S. DIst. LEXIS 74450 (D. Ore. Jun 7, 2016). Wildfires in the area caused smoke, soot, and ash to accumulate on the surface of seats and concrete ground of the open-air theater. The air quality was poor, but no federal, state or local agency ordered cancellation of the performances. Further, the theater did not suffer any permanent or structural damage to its property. The insurer denied coverage, contending that the loss or damage must be structural to the building itself. After all, the smoke in the air at the theater did not require any repairs to the structure of the property. The court disagreed. The theater sustained "physical loss or damage to property" when the wildfire smoke infiltrated the theater and rendered it unusable for its intended purpose. The decision in Oregon Shakespeare Festival was eventually vacated by a joint stipulation of the parties. Oregon Shakespeare Festival Ass'n v. Great Am. Ins.Co., 2017 U.S. Dist. LEXIS 33208 (D. Ore. March 6, 2017), but the reasoning is still sound.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Court Forces Insurer to Play Ball in COVID-19 Insurance Coverage Suit
December 13, 2022 —
Latosha M. Ellis & Yosef Itkin - Hunton Insurance Recovery BlogOne of the threshold issues in COVID-19 insurance coverage cases that have been brought across the country is whether the policyholder’s allegations meet the applicable pleading standard in alleging that the virus caused physical loss or damage. In many cases, the courts have gotten it wrong, effectively holding policyholders to a higher standard than required. But recently, a California federal judge righted those wrongs by acknowledging the correct pleading standard in that case, which is whether the allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court, here, correctly recognized that the policyholder, the Los Angeles Lakers, met that pleading standard when it alleged that the COVID-19 virus can cause physical loss or damage by physically altering property.
In its complaint, the Los Angeles Lakers alleged that the virus physically altered its property by changing its chemical and physical property conditions, creating viral vectors that required remedial measures before the property was safe again. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 591 F. Supp. 3d 672 (C.D. Cal. 2022), adhered to on reconsideration, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022). The Court agreed that these allegations by the Lakers adequately pled physical alteration to support a claim for property damage. The insurer requested reconsideration of the decision, and the Court emphatically affirmed its prior decision, explaining its rationale as follows:
The Court lacks the scientific expertise necessary to conclude, based solely on the allegations in the FAC . . . that it is not plausible for the Lakers’ property to have been physically altered by the Virus, which the Lakers adequately alleged. Consequently, the Court, in the March 17 Order, concluded that the Lakers’ theory was plausible. Whether the Lakers can actually prove its theory will be determined at summary judgment or trial.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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The Coronavirus, Zoom Meetings and Now a CCPA Class Action
April 13, 2020 —
Jeffrey M. Dennis & Heather H. Whitehead - Newmeyer DillionWith the ongoing COVID-19 (commonly referred to as the Coronavirus) pandemic and orders to “stay at home” in place across the United States, most organizations have been and continue to utilize remote arrangements. The software program known as “Zoom Meetings”, has become immensely popular as a means to facilitate meetings amongst employees, team members and other consultants rather than meeting in person.
Despite such status, Zoom Video Communications, Inc. (Zoom) has been named as a defendant in one of the first, and certainly the most high-profile, class action lawsuits to be filed in California alleging violations of the California Consumer Privacy Act of 2018 (CCPA).
The Class Action
The complaint filed alleges that Zoom did not protect the personal information of its users as it collected personal information and then shared such information to third parties, including Facebook, without adequate disclosures to users. The allegations specifically refer to Zoom’s boasting about its maintenance of users’ privacy and that they can be trusted with user data. Further, it is noted that there is no disclosure provided in the Zoom Privacy Policy that disclosed that personal information was being shared with Facebook and other third parties.
Reprinted courtesy of
Jeffrey M. Dennis, Newmeyer Dillion and
Heather H. Whitehead, Newmeyer Dillion
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com
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Australia Warns of Multi-Billion Dollar Climate Disaster Costs
October 09, 2023 —
Ben Westcott - BloombergAustralian Treasurer Jim Chalmers highlighted the soaring cost of disaster management in his nation ahead of a potentially disastrous wildfire season in the coming summer, fueled by El Nino.
Government funding for disaster recovery has blown out by 433% over the past three years, Chalmers said in excerpts of a speech to be delivered Tuesday in the northern city of Rockhampton. The costs stood at A$2.5 billion ($1.6 billion) in the year ended June 30.
“The pressure of a changing climate and more frequent natural disasters is constant, cascading, and cumulative,” Chalmers said.
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Ben Westcott, Bloomberg
Construction Defects Survey Results Show that Warranty Laws Should be Strengthened for Homeowners & Condominium Associations
March 29, 2017 —
Nicholas D. Cowie - Maryland Condo Construction Defect Law BlogThe Community Associations Institute (“CAI”) recently partnered with its members and industry stakeholders to create a survey about construction deficiencies to learn how they impact homeowners and condominium associations.
Click here to view the Construction Defects Report containing the details of the responses to the survey.
Click here to see a video presentation summarizing the results of the Construction Defects Survey.
This Community Associations Institute (“CAI”)
Construction Defects Report demonstrates that many community associations do not discover construction deficiencies until after warranties have expired and/or fail to take the necessary actions to preserve their claims before the statutes of limitations runs. As a result, many homeowners and Condominium associations ended up using association funds to correct builder construction defects and damages caused thereby.
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Nicholas D. Cowie, Cowie & MottMr. Cowie may be contacted at
ndc@cowiemott.com
New York State Legislature Reintroduces Bills to Extend Mortgage Recording Tax to Mezzanine Debt and Preferred Equity
March 15, 2021 —
Steven E. Coury & Marissa Levy - White and WilliamsCompanion bills in the New York State Legislature, Assembly Bill No. A3139 and Senate Bill No. S3074, if enacted, would subject mezzanine loans and preferred equity investments to the same recording and taxation requirements placed on mortgages.
The bills were reintroduced last month after similar bills (S7231/A9041) were introduced in the 2019-2020 legislative session. The prior bills died in committee when last year’s legislative session adjourned.
As discussed in our prior alert, the proposed bills would require: (1) a financing statement evidencing any mezzanine debt and/or preferred equity investments related to real property to be filed in the county in which the real property is located and (2) a recording tax, at the same rate as the applicable mortgage recording tax rate (2.80% for commercial mortgages over $500,000 in New York City), to be imposed on the amount of the debt and/or investment at the time the financing statement is filed. The bills contain a limited carve-out for owner-occupied residential cooperatives.
Reprinted courtesy of
Steven E. Coury, White and Williams and
Marissa Levy, White and Williams
Mr. Coury may be contacted at courys@whiteandwilliams.com
Ms. Levy may be contacted at levmp@whiteandwilliams.com
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