Fairfield Connecticut Building Expert Directory

California’s High Speed Rail Project. Are We Done With the Drama?

October 22, 2014 — Garret Murai – California Construction Law Blog
Proponents of California’s high-speed rail project cleared a major hurdle this past week when the California Supreme Court declined to review a California Court of Appeals ruling which held that the state’s funding plan did not violate Proposition 1A, the voter-approved initiative passed in 2008, which provided initial funding for the project. For those like me who have been following the fits and starts of California’s high-speed rail project, it may be hard to remember how it all got started, and how we got to where we are. California's High-Speed Rail Project California’s high-speed rail project involves the construction of a high-speed passenger rail system running from Northern California to Southern California. The $68 billion system, expected to begin operation in 2029, will initially run from San Francisco to the Los Angeles basin in under 3 hours with train speeds capable of over 200 miles per hour. The system will eventually extend from Sacramento to San Diego covering a distance of approximately 800 miles with up to 24 stations. Read the court decision
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Reprinted courtesy of Garret Murai, Kronick Moskovitz Tiedemann & Girard
Mr. Murai may be contacted at gmurai@kmtg.com

Motion to Dismiss COVID Claim Granted in Part, Denied in Part

February 06, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion to dismiss the insured's claim for business losses due to COVID-19 was granted in part, denied in part. SRL v Zurich Am. Ins Co., 2022 U.S. Dist. LEXIS 210058 (N.D. Ill. Nov. 21, 2022). Excelsior owned and managed the Westin Excelsior Rome, a luxury hotel in Rome. The hotel suffered business income losses with the onset of the pandemic.While the hotel was not forced to close, its bookings decreased to virtually nothing. The Excelsior's complaint alleged that the COVID-19 virus was present in and around the hotel as multiple guests and at least six employees tested positive for COVID-19. It further alleged that the virus attached to interior property and was in the air. Excelsior was insured under a commercial property policy issued by Zurich. The court agreed there was no direct physical loss because no structure suffered damage. Among the coverages under the policy, however, was a "Cancellation of Bookings" provision. Zurich agreed there was coverage under this provision, but argued that Excelsior had already reached its annual limit for Cancellation of Bookings claims. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Client Alert: Court Settles Conflict between CCP and Rules of Court Regarding Demurrer Deadline Following Amended Complaint

August 20, 2014 — R. Bryan Martin and Kristian B. Moriarty - Haight Brown & Bonesteel LLP
In Carlton v. Dr. Pepper Snapple Group, Inc. (No. E056566, filed 8/14/2014), The Court of Appeal, Fourth Appellate District, held a demurrer was timely filed in compliance with California Code of Civil Procedure (“CCP”) section 471.5, despite being filed after the 10-day filing period prescribed in California Rule of Court 3.1320(j). This case appears to settle the conflict that existed between the CCP and the Rules of Court as to the timing of demurrers following amendments to Complaints. Prior to this case, the validity of Rule of Court 3.1320(j)(2) was unclear as it arguably conflicted with CCP Section 471.5, which requires defendants to “answer” an amended complaint within 30 days after service. At the same time, it was not clear that CCP Section 471.5 applied to amendments after a demurrer had been sustained, and it was even more unclear whether the statutory 30-day period to “answer” an amended complaint foreclosed the shorter 10-day period prescribed under Rule of Court 3.1320(j)(2) for a demurrer or motion to strike. On July 15, 2011, Plaintiff filed a Complaint against Dr. Pepper Snapple Group, Inc. (“Dr. Pepper”) and others. On October 24, 2011, Plaintiff filed a First Amended Complaint (“FAC”). Dr. Pepper demurred to the FAC on various grounds. On January 5, 2012, the trial court sustained the demurrer in part, and overruled it in part. The Court granted Plaintiff 30 days to amend the FAC. Reprinted courtesy of R. Bryan Martin, Haight Brown & Bonesteel LLP and Kristian B. Moriarty, Haight Brown & Bonesteel LLP Mr. Martin may be contacted at bmartin@hbblaw.com, Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Read the court decision
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The EPA and the Corps of Engineers Propose Another Revised Definition of “Waters of the United States”

February 14, 2022 — Anthony B. Cavender - Gravel2Gavel
On December 7, 2021, the most recent proposed revision to the Clean Water Act’s term, “Waters of the United States” was published in the Federal Register. (See 86 FR 69372.) Comments on this proposal must be submitted by February 7, 2022. This term controls the scope of federal regulatory powers in such programs as the development of water quality standards, impaired waters, total maximum daily loads, oil spill prevention, preparedness and response plans, state and tribal water quality certification programs, the National Pollutant Discharge Elimination System (NPDES) permit program, and the Corps of Engineers’ dredge and fill program. The Environmental Protection Agency (EPA) and the Corps of Engineers have jointly drafted this comprehensive proposed rule, which also responds to President Biden’s Executive Order 13990, issued in January 2021. Background The agencies noted that they have repeatedly defined and re-defined “Waters of the United States” since the Clean Water Act was enacted in 1972. This level of sustained commitment is unique to this program, perhaps reflecting the importance of the programs that are implemented through the Clean Water Act. The most recent rulemaking efforts took place in 2015, 2017, 2020 and now 2022, and the Supreme Court has issued several landmark rulings in response to these efforts. See City of Milwaukee v. Illinois, 451 US 304 (1981), United States v. Riverside Bayview, 474 US 121 (1985), SWANCC v. United States, 531 US 159 (2001), Rapanos v. United States, 547 US 715 (2006), National Association of Manufacturers v. Department of Defense, 138 S Ct 617 (2018), and County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S, Ct 1462 (2020). The rules promulgated in 2015 and entitled, “Clean Water Act: Definition of Waters of the United States” expanded the scope of federal regulatory jurisdiction, but the 2020 rule, entitled the “Navigable Waters Protection Rule,” contracted that scope. Now, the agencies have proposed the “Revised Definition of ‘Waters of the United States,’” which will rescind the 2020 rule and inevitably restore something of the scope of the 2015 rule by returning to the familiar “1986 rules” that were issued by the Corps of Engineers in 1986 and EPA in 1988, as modified by the recent Supreme Court decisions mentioned above. Both the 2015 and 2020 rules were mired in litigation and the Corps and EPA view the resort to the 1986 rules as a fresh start for the Clean Water Act. In short, the topsy-turvy history of regulation under the Clean Water Act continues. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Ahlers Cressman & Sleight Nationally Ranked as a 2020 “Best Law Firm” by U.S. News – Best Lawyers®

December 22, 2019 — Ahlers Cressman & Sleight
Ahlers Cressman & Sleight is pleased to be recognized by U.S. News – Best Lawyers ® as one of the top construction firms in the United States. The firm received metropolitan Tier 1 rankings in both Construction Law and Construction Litigation. In the national rankings, ACS one of just five Washington firms that was ranked for Construction Law (Tier 3) and one of six that received national rankings for Litigation – Construction (Tier 2). Only one other firm in Washington received a Tier 2 national ranking in Construction Litigation. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process. Read the court decision
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Reprinted courtesy of Ahlers Cressman & Sleight PLLC

Business Solutions Alert: Homeowners' Complaint for Breach of Loan Modification Agreement Can Proceed Past Pleading Stage

October 08, 2014 — Krsto Mijanovic, Annette Mijanovic, Blythe Golay - Haight Brown & Bonesteel LLP
In Fleet v. Bank of America, N.A. (No. G050049, published 9/23/14, filed 8/25/14), a California Court of Appeal held that the trial court erred in sustaining the demurrer of a lender, where the homeowners had adequately alleged causes of action for breach of contract, fraud, and promissory estoppel. The homeowners alleged that they made timely payments during the trial period plan under the modification program, but before the last payment was due, the lender foreclosed and their house was sold. The homeowners had applied for a loan modification and were approved for a trial period plan under the modification program. They were required to make three monthly payments and verify financial hardship to permanently modify their loan. The homeowners made two payments and were told that foreclosure proceedings had been suspended. But before the third payment was due, the lender foreclosed. The trial court found that the trial period plan was not a binding loan modification agreement, so the homeowners had no right to any guaranteed loan modification. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Krsto Mijanovic, Annette Mijanovic and Blythe Golay Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Ms. Mijanovic may be contacted at amijanovic@hbblaw.com Ms. Golay may be contacted at bgolay@hbblaw.com Read the court decision
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Congratulations to San Diego Partner Johnpaul Salem and Senior Associate Scott Hoy for Obtaining a Complete Defense Verdict!

November 13, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Johnpaul Salem and Senior Associate Scott Hoy just concluded a 4-week trial defending a local renowned hotel in San Diego. Plaintiff alleged premises liability against BWB&O’s client arguing plaintiff was injured while riding in an elevator due to alleged negligent maintenance and inspection. Plaintiff brought in a “hired gun” elevator expert from Missouri and sought $25 million in damages for two fractured ankles, a compound tibia fracture, and lifelong CRPS/PTDS/anxiety. BWB&O argued any injuries sustained were a direct result of Plaintiff’s actions. After a passionate and powerful closing argument by Mr. Salem, attacking the foundation of Plaintiff’s expert’s opinions and presenting vigilance of the hotel in the safety of its guests, the jury unanimously ruled in BWB&O’s client’s favor. Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP Read the full story... Read the court decision
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You Cannot Arbitrate Claims Not Covered By The Arbitration Agreement

March 16, 2020 — David Adelstein - Florida Construction Legal Updates
Regardless of the type of contract you are dealing with, “[a]rbitration provisions are contractual in nature, and therefore, construction of such provisions and the contracts in which they appear is a matter of contract interpretation.” Wiener v. Taylor Morrison Services, Inc., 44 Fla. L. Weekly D3012f (Fla. 1st DCA 2019). This means if you want to preserve your right to arbitrate claims you want to make sure your contract unambiguously expresses this right. Taking this one step further, if you want to make sure an arbitrator, and not the court, determines whether the claim is arbitrable if a dispute arises, you want to make sure that right is expressly contained in the arbitration provision. For example, in Wiener, a homeowner sued a home-builder for violation of the building code – a fairly common claim in a construction defect action. The homeowner’s claim dealt with a violation of building code as to exterior stucco deficiencies. The home-builder moved to compel the lawsuit to arbitration based on a structural warranty it provided to the homeowner that contained an arbitration provision. The structural warranty, however, was limited and did not apply to non-load-bearing elements which, per the warranty, were not deemed to have the potential for a major structural defect (e.g., a structural defect to load-bearing elements that would cause the home to be unsafe or inhabitable). The trial court compelled the dispute to arbitration pursuant to the arbitration provision in the structural warranty. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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