Triggering Duty to Advance Costs Same Standard as Duty to Defend
April 11, 2018 —
Tred R. Eyerly - Insurance Law HawaiiInterpreting Hawaii law, the federal district court held that the standard for triggering the duty to defend is the same as the standard for the duty to advance costs under a D&O policy.
Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2018 U.S. Dist. LEXIS 56949 (D. Haw. April 3, 2018).
The underlying plaintiffs sued 22 defendants, including Maui Land Pineapple (MLP) and Ryan L. Churchill, concerning a residential development project known as The Ritz-Carlton Club & Residences. The underlying complaint alleged that MLP "directly or indirectly through wholly owned subsidiaries exerts control" over Kapalua Bay, LLC, the defendant in the underlying lawsuit. Kapalua Bay, LLC was created as a joint venture of which MLP held 51%. Churchill was a senior executive officer of MLP, President of Kapalua Bay, and an executive officer of Kapalua Realty, which participated in all aspects of the Project, such as financing, development, and construction.
In their second amended complaint, the underlying plaintiffs alleged nine Counts against the defendants, including breach of fiduciary duty. It was alleged that defendants were not transparent and kept owners in the dark regarding the status of the project. Several allegations named Churchill individually and described his alleged material misrepresentations to the underlying plaintiffs regarding the project's financing.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Payne & Fears LLP Recognized by U.S. News & World Report and Best Lawyers in 2023 “Best Law Firms” Rankings
November 28, 2022 —
Payne & Fears LLPPayne & Fears LLP is pleased to announce that the firm has been recognized by U.S. News & World Report and Best Lawyers 2023 “Best Law Firms” list. Firms included in the 2023 edition of U.S. News – Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. This includes the top 5% of private practicing lawyers in the United States.
Payne & Fears LLP has been ranked in the following practice areas:
- Commercial Litigation
- Employment Law – Management
- Insurance Law
- Labor Law – Management
- Litigation – Labor & Employment
- Litigation – Real Estate
- Litigation – Intellectual Property
Additionally, on August 15, 2022, 11 of our attorneys were selected for inclusion in
The Best Lawyers in America® 2023. Collectively bringing decades of experience and dedication to their practice, Jeffrey K. Brown, Daniel F. Fears, Daniel M. Livingston, Thomas L. Vincent, Benjamin A. Nix, James L. Payne, Scott S. Thomas, and Kelby Van Patten received this respected achievement. Additionally, Leilani E. Jones, Sarah J. Odia, and Matthew C. Lewis were included in Best Lawyers: Ones to Watch 2023.
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Payne & Fears LLP
Certain Private Projects Now Fall Under Prevailing Wage Laws. Is Yours One of Them?
November 21, 2022 —
Nancy Cox - Construction ExecutiveFor the last few years, New York State Labor Law has required that all contractors overseeing public development projects pay their workers the prevailing wage rate, which includes a regulated hourly rate for wage and benefits. Fast forward to 2022, the requirements of Section 224-A are extending to private projects costing more than $5 million where 30% or more of the financing for the construction costs was obtained from public sources like state or local funding.
There are a number of forms of financing that qualify as public funding, and its important for developers to understand exactly how these are defined under the new law. Public funding includes any indirect or direct payment from government authorities, savings from fees, tax credits or payments in lieu of taxes, loans from public entities and more.
In order to provide further clarity, the law also clearly defined certain project exemptions to the new rule. First, affordable housing projects will not be affected, along with historic rehabilitation projects or small renewable energy projects. Also, projects for established non-profit companies receive an exemption as long as the company reports gross annual revenues less than $5 million. Other exemptions include projects for schools under 60,000 square feet and those funded by the Urban Development Corporation’s Restore New York's Communities Initiative.
Reprinted courtesy of
Nancy Cox, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Standard For Evaluating Delay – Directly from An Armed Services Board Of Contract Appeal’s Opinion
October 04, 2021 —
David Adelstein - Florida Construction Legal UpdatesSometimes, it is much better to hear it from the horse’s mouth. That is the case here. The Armed Services Board of Contract Appeal’s (ASBCA) opinion in Appeals of -GSC Construction, Inc., ASBCA No. 59402, 2020 WL 8148687 (ASBCA November 4, 2020) includes an informative discussion of a contractor’s burden when it encounters excusable delay and, of importance, the standard for evaluating delay. It’s a long discussion but one that parties in construction need to know, appreciate, and understand. EVERY WORD IN THIS DISCUSSION MATTERS.
Construction projects get delayed and with a delay comes money because time is money. Many claims are predicated on delay. These can be an owner assessing liquidated damages due to a delayed job or a contractor seeking its costs for delay. Either way, the standard for evaluating delay and the burdens imposed on a party cannot be understated and, certainly, cannot be overlooked. For this reason, here is the discussion on evaluating delay directly from the horse’s mouth in the Appeal of-GSC Construction, Inc.:
The critical path is the longest path in the schedule on which any delay or disruption would cause a day-for-day delay to the project itself; those activities must be performed as they are scheduled and timely in order for the project to finish on time. Wilner v. United States, 23 Cl. Ct. 241, 245 (1991). In Yates-Desbuild Joint Venture, CBCA No. 3350 et al., 17-1 BCA ¶ 36,870, our sister board compiled an excellent and very helpful synopsis of the standards for evaluating delay claims, which I adopt nearly verbatim among the discussion that follows.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Colorado Supreme Court Issues Decisions on Statute of Limitations for Statutory Bad Faith Claims and the Implied Waiver of Attorney-Client Privilege
July 11, 2018 —
Jennifer Arnett-Roehrich - Gordon & Rees Insurance Coverage Law BlogThe Colorado Supreme Court has been busy the past two weeks, issuing a couple rulings that should be of interest to the insurance industry:
Statute of Limitations for Bad Faith Statute: In Rooftop Restoration, Inc. v. American Family Mutual Insurance Co., 2018 CO 44 (May 29, 2018), the Colorado Supreme Court held that the one-year statute of limitations that applies to penalties, does not apply to claims brought under C.R.S. 10-3-1116, Colorado’s statutory cause of action for unreasonable delay or denial of benefits. Section 10-3-1116 provides that a first-party claimant whose claim for payment of benefits has been unreasonably delayed or denied may seek to recover attorney fees, costs, and two times the covered benefit, in addition to the covered benefit. A separate Colorado statute, CRS 13-80-103(1)(d) provides a one-year statute of limitations for “any penalty or forfeiture of any penal statutes.” To arrive at the conclusion that the double damages available under section 10-3-1116 is not a penalty, the Court looked at yet another statutory provision, governing accrual of causes of action for penalties, which provides that a penalty cause of action accrues when “the determination of overpayment or delinquency . . . is no longer subject to appeal.” The Court stated that because a cause of action under 10-3-1116 “never leads to a determination of overpayment or delinquency . . . the claim would never accrue, and the statute of limitations would be rendered meaningless.” Para. 15. Presumably, the default two-year statute of limitations, provided by CRS 13-80-102(1)(i), will now be found to apply to causes of action seeking damages for undue delay or denial of insurance benefits.
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Jennifer Arnett-Roehrich, Gordon & Rees Scully MansukhaniMs. Arnett-Roehrich may be contacted at
jarnett-roehrich@grsm.com
Can an App Renovate a Neighborhood?
August 10, 2021 —
Patrick Sisson - BloombergOn a sleepy stretch of West Jefferson Boulevard not far from downtown Los Angeles, cars typically speed past blocks of old warehouses and blank retail facades for destinations elsewhere. But slow down, hit the sidewalk and peek into and around a few buildings, and you’ll see the telltale signs of renovation: sandblasted walls, new windows, work crews and exposed wood beams.
In an expansive brick building that once housed a child-care center before reverting to a warehouse, an inside-out renovation for a future food hall has stripped the wooden ceiling down to gorgeous bow trusses, sunlight filtering through the gaps and lighting up a floor of dirt filled with tracks from heavy machinery.
This string of commercial development, 20 buildings in total, isn’t a typical project, nor does it rely on traditional sources of financing. A clue can be found on the white and orange signs above a handful of buildings between La Brea Avenue and Crenshaw Boulevard, beckoning potential tenants to call Fundrise for leasing opportunities for built-to-suit office/retail.
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Patrick Sisson, Bloomberg
Reconstructing the Francis Scott Key Bridge Utilizing the Progressive Design-Build Method
June 04, 2024 —
Lisa D. Love - The Dispute ResolverHaving awakened on the morning of March 26 to the devastating news of the collapse of Baltimore’s Francis Scott Key Bridge after being struck by the Dali, a 984 length /52 beam foot cargo container ship, I thought of the many times I crossed the bridge as a child growing up in Washington, D.C. I also recalled Montgomery Schyler’s comments on the opening of the Brooklyn Bridge, when he stated that “the work which is likely to be our most durable monument, and to convey some knowledge of us to the most remote posterity, is a work of bare utility; not a shrine, not a fortress, not a palace, but a bridge.”
I thought of the beauty of New York’s Mario Cuomo Bridge, a 3.1-mile cable-stayed twin-span bridge with eight traffic lanes, bicycle and pedestrian paths, six lookout points and room for future rapid transit. It was completed in 2018 and constructed under a design-build procurement model[i] at a cost of $3.98 billion. Accelerated bridge construction (ABC) techniques were utilized in its construction. ABC techniques employ innovative planning, design, materials, and construction methods in a safe and cost-effective manner to reduce the on-site construction time that occurs when building new bridges or replacing and rehabilitating existing ones. ABC techniques improve site constructability, total project delivery time, work-zone safety for the traveling public and traffic impacts, on-site construction time, and weather-related time delays.[ii]
I also thought of the gracefulness of Boston’s Leonard P. Zakim Bunker Hill Memorial Bridge, a 0.27-mile hybrid cable-stayed steel and concrete bridge with pedestrian and bicycle access that holds 10 lanes of traffic. The Zakim Bridge was completed in 2004 at a cost of approximately $100 million as part of the $24.3 billion Big Dig.[iii] Despite its elegant, streamlined appearance, the bridge was designed to be exceptionally strong, withstand winds over 400 miles per hour and endure a magnitude 7.9 earthquake.[iv]
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Lisa D. Love, JAMS
ASCE Statement on Devastating Tornado Damages Throughout U.S.
December 20, 2021 —
Tom Smith, Executive Director - American Society of Civil Engineers (ASCE)WASHINGTON, DC. – We are deeply saddened by the tragic tornado storms that ravaged six states across the Midwest and Southeastern portions of the U.S. last Friday evening, resulting in loss of life in five of those six states. Even though warnings were issued throughout the region, storms of this magnitude can be difficult to prepare for. Nevertheless, as civil engineers, our mission is to continually advance the design and construction of safe, reliable, and resilient building structures and infrastructure systems to mitigate the damage caused by storms.
ASCE 7 — a nationally-adopted, consensus-based engineering standard that is the primary reference of structural design requirements in all U.S. building codes — was recently updated to include a new chapter for tornado loads in the 2022 edition. The new tornado provisions in ASCE 7-22 were a result of a decade-long effort in partnership with the National Institute of Standards and Technology following the 2011 Joplin, MO Tornado. ASCE 7-22 provides updated design requirements for a variety of structures, including many of the types impacted by Friday's storms.
In an effort to assist, the Structural Engineering Institute of ASCE is currently offering free access to a report issued after the Joplin, MO tornado in 2011 that killed more than 150 people.
Joplin, Missouri, Tornado of May 22, 2011: Structural Damage Survey and Case for Tornado-Resilient Building Codes presents the observations, findings, and recommendations of an engineering reconnaissance team that surveyed residential structures and schools in the tornado path shortly after the event. The EF 5 tornado cut a seven-mile swath through Joplin, Missouri; it destroyed more than 5,000 buildings and killed more than 150 people.
We will continue to keep those who have been affected in our hearts and thoughts, and we share our heartfelt sympathies.
For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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