Hunton Insurance Head Interviewed Concerning the Benefits and Hidden Dangers of Cyber Insurance
December 04, 2018 —
Michael S. Levine - Hunton Insurance Recovery BlogThe head of Hunton Andrews Kurth’s insurance practice, Walter Andrews, was interviewed earlier this week by ABC 7 (WJLA) concerning the need for cyber insurance and the benefits that it can provide to government contractors and other businesses that are impacted by a cyber event. Andrews explains the diverse spectrum of benefits that are available through cyber insurance products, but cautions that a serious lack of uniformity exists among today’s cyber insurance products, making it crucial that policyholders carefully analyze their cyber insurance to ensure it provides the scope and amount of insurance they desire.
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Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
Investigators Eye Fiber Optic Work in Deadly Wisconsin Explosion
July 18, 2018 —
Jeff Yoders – Engineering News-RecordA hole punched into a 4-in.-dia gas pipeline during fiber-optic line laying is blamed for an explosion that killed a 34-year-old fire captain and injured nine other people, including four firefighters, in downtown Sun Prairie, Wis., on July 10. The injured were treated at nearby hospitals and have since been released.
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Jeff Yoders, ENRMr. Yoders may be contacted at
yodersj@enr.com
Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again that the Right to Repair Act is the Exclusive Remedy for Construction Defect Claims
June 05, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. - Chapman Glucksman Dean Roeb & Barger BulletinBackground
In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017, the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot. The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.
After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor. The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.
Impact
This is the second time the Third District Court of Appeal has held that Liberty Mutual (discussed below) was wrongly decided and held that the Right to Repair Act is the exclusive remedy for construction defect claims. The decision follows its holding in Elliott Homes, Inc. v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333, in which the Court of Appeal held that the Right to Repair Act’s pre-litigation procedures apply when homeowners plead construction defect claims based on common law causes of action, as opposed to violations of the building standards set forth in the Right to Repair Act. Elliott is currently on hold at the California Supreme Court, pending the decision in McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132, wherein Liberty Mutual was rejected for the first time by the Fifth District. CGDRB continues to follow developments regarding the much anticipated McMillin decision closely, as well as all related matters.
Discussion
The Right to Repair Act makes contractors and subcontractors not involved in home sales liable for construction defects only if the homeowner proves they negligently cause the violation in whole or part (Civil Code §§ 911(b), 936). As such, the trial court in Gillotti instructed the jury on negligence with respect to the grading subcontractor. The jury found that while the construction did violate some of the Right to Repair’s building standards alleged by the homeowner, the subcontractor was not negligent in anyway. After the jury verdict, the trial court found in favor of the grading subcontractor.
The homeowner moved for a judgment notwithstanding the verdict or a new trial on the grounds that the trial court improperly barred a common law negligence theory against the grading subcontractor. The trial court denied the motions on the grounds that “[t]he Right to Repair Act specifically provides that no other causes of action are allowed. See Civil Code § 943.” The trial court specifically noted that its decision conflicted with Liberty Mutual, in which the Fourth District Court of Appeal held that the Right to Repair Act does not eliminate common law rights and remedies where actual damage has occurred, stating that Liberty Mutual was wrongly decided and that the Liberty Mutual court was naïve in its assumptions regarding the legislative history of the Right to Repair Act.
In Gillotti, the Third District Court of Appeal stated that the Liberty Mutual court failed to analyze the language of Civil Code § 896, which “clearly and unequivocally expresses the legislative intent that the Act apply to all action seeking recovery of damages arising out of, or related to deficiencies in, residential construction, except as specifically set forth in the Act. The Act does not specifically except actions arising from actual damages. To the contrary, it authorizes recovery of damages, e.g., for ‘the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards....’ ([Civil Code] § 944).”
The Court also disagreed with Liberty Mutual’s view that because Civil Code §§ 931 and 943 acknowledge exceptions to the Right to Repair Act’s statutory remedies, the Act does not preclude common law claims for damages due to defects identified in the Act. The Court stated: “Neither list of exceptions, in section 943 or in section 931, includes common law causes of action such as negligence. If the Legislature had intended to make such a wide-ranging exception to the restrictive language of the first sentence of section 943, we would have expected it to do so expressly.”
Additionally, the Court of Appeal rejected the argument that Civil Code § 897 preserves a common law negligence claims for violation of standards not listed in Civil Code § 986. It explained that the section of Civil Code § 897, which provides, “The standards set forth in this chapter are intended to address every function or component of a structure,” expresses the legislative intent that the Right to Repair Act be all-encompassing. Anything inadvertently omitted is actionable under the Act if it causes damage. Any exceptions to the Act are made expressly through Civil Code §§ 931 and 934. The Court concluded in no uncertain terms that the Right to Repair Act precludes common law claims in cases for damages covered by the Act.
The homeowner further argued that she was not precluded from bringing a common law claim because a tree is not a “structure,” and therefore the alleged tree damage did not fall within the realm of the Right to Repair. The Court of Appeal also rejected this argument, holding that while the tree damage itself was not expressly covered, the act of adding soil to make the driveway level (which caused the damage) implicated the standards covered by the Right to Repair Act. The Court explained that since under the Act a “structure” includes “improvement located upon a lot or within a common area” (Civil Code § 895(a)), as the driveway was an improvement upon the lot, the claim was within the purview of the Right to Repair Act. As the soil, a component of the driveway, caused damage (to the trees), it was actionable under the Act.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Designers George Yabu and Glenn Pushelberg Discuss One57’s Ultra-Luxury Park Hyatt
July 30, 2014 —
Jennifer Parker – BloombergOne57 might just be the hottest -- or at least the most expensive -- address in New York City.
The $375 million skyscraper currently piercing its blue-glass presence into Manhattan's midtown skyline is home not only to 94 private condos (two of which have already sold for $90 million); it also hosts a brand new Park Hyatt hotel, which opens this August.
Eight years in the making, this Hyatt is the first ultra-luxury hotel New York has seen since the Mandarin Oriental opened in 2003. It's intended to be a New York icon. So, naturally, Hyatt hired two Canadian guys to design it.
Meet George Yabu and Glenn Pushelberg, the dynamic couple who met as college students in Toronto in 1972, and decided to launch design firm YabuPushelberg. Now, they're earning millions per project to design luxury hotels, restaurants, and residences all over the world.
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Jennifer Parker, Bloomberg
Court Finds No Coverage for Workplace “Prank” With Nail Gun
April 04, 2022 —
Craig Rokuson - Traub Lieberman Insurance Law BlogIn the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion.
With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
AB 1701 – General Contractor Liability for Subcontractors’ Unpaid Wages
December 01, 2017 —
Alex Baghdassarian, Eric M. Gruzen, & Kerri Sakaue – Peckar & Abramson, P.C.Contractors will soon find themselves on the frontline of wage disputes on projects if laborers working on behalf of their subcontractors or vendors are unpaid. On October 14, 2017, Governor Jerry Brown signed into law AB 1701, which will allow laborers to seek direct compensation from the general contractors on private projects, if their wages remain unpaid.
The legislative mandate requires direct contractors—defined as contractors who have a direct contractual relationship with an owner—to assume liability for any debt incurred by a subcontractor, at any tier, for a wage claimant’s performance of labor included in the subject of the original contract between the general contractor and the owner. The California bill will apply to all private construction contracts entered into on or after January 1, 2018. Previously, all laborers could maintain a mechanic’s lien claim against private property, without needing to serve a 20-day preliminary notice, but there was no statutory obligation on the “direct contractors” to reimburse the laborers their unpaid wages.
Reprinted courtesy of Peckar & Abramson, P.C. attorneys
Alex Baghdassarian,
Eric M. Gruzen and
Kerri Sakaue
Mr. Baghdassarian may be contacted at abaghdassarian@pecklaw.com
Mr. Gruzen may be contacted at egruzen@pecklaw.com
Ms. Sakaue may be contacted at ksakaue@pecklaw.com
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Two More Lawsuits Filed Over COVID-19 Business Interruption Losses
April 13, 2020 —
Michael S. Levine - Hunton Andrews KurthTwo more lawsuits were filed yesterday concerning business interruption losses resulting from the COVID-19 pandemic. The plaintiffs, the Chickasaw and Choctaw nations, filed their lawsuits, copies of which can be found
here and
here, in Oklahoma state court against a litany of property insurers, led by AIG. The lawsuits seek an order that any financial losses suffered by the nations’ casinos, restaurants and other businesses as a result of the coronavirus pandemic are covered by the nations’ insurance policies.
According to the complaints:
On or about March of 2020, the United States of America became infected by COVID 19 resulting in a pandemic. As a result of this pandemic and infection, the Nation’s Property sustained direct physical loss or damage and will continue to sustain direct physical loss or damage covered by the policies, including but not limited to business interruption, extra expense, interruption by civil authority, limitations on ingress and egress, and expenses to reduce loss. As a direct result of this pandemic and infection, the Nation’s Property has been damaged, as described above, and cannot be used for its intended purpose.
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Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
Engineering Report Finds More Investigation Needed of Balconies at New Jersey Condo
March 20, 2023 —
Engineering News-RecordPress of Atlantic City
SEA ISLE CITY - An engineering report on the Spinnaker Condominiums' South Tower found that balconies directly beneath the one that collapsed last month, killing a worker, need further investigation before they are deemed safe for use.
Reprinted courtesy of
Engineering News-Record
ENR may be contacted at enr@enr.com
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