Release Of “Unknown” Claim Does Not Bar Release Of “Unaccrued” Claim: Fair Or Unfair?
July 15, 2019 —
David Adelstein - Florida Construction Legal UpdatesA general release of “unknown” claims through the effective date of the release does NOT bar “unaccrued” claims. This is especially important when it comes to fraud claims where the facts giving rise to the fraud may have occurred prior to the effective date in the release, but a party did not learn of the fraud until well after the effective date in the release. A recent opinion maintained that a general release that bars unknown claims does NOT mean a fraud claim will be barred since the last element to prove a fraud had not occurred, and thus, the fraud claim had not accrued until after the effective date in the release. See Falsetto v. Liss, Fla. L. Weekly D1340D (Fla. 3d DCA 2019) (“The 2014 [Settlement] Agreement’s plain language released the parties only from “known or unknown” claims, not future or unaccrued claims. Because there is a genuine issue of material fact as to whether the fraud claim had accrued — that is, whether Falsetto [party to Settlement Agreement] knew or through the exercise of due diligence should have known about the alleged fraud at the time the 2014 Agreement was executed — the trial court erred in granting summary judgment on those fraud claims.”).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Musings: Moving or Going into a New Service Area, There is More to It Than Just…
July 16, 2023 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we would like to welcome back (again) Sean Lintow Sr. (@The_HTRC) Sean has over 20 years in the construction and project management fields. As many know he pulled up stakes and moved to the State of Illinois almost a year ago where he still focuses on the “green” / energy efficiency markets by helping builders & trade professionals to improve their methods not only locally but nationally. Currently he is RESNET Rater, AEE CEA (Certified Energy Auditor), ENERGY STAR partner & verifier, EPA Indoor airPLUS verifier, Level 2 Infrared Thermographer, Volunteer Energy Rater for Habitat for Humanity, and Builders Challenge Partner & Verifier.
I would like to thank Chris for inviting me back as a guest poster. One item that struck a bell with me lately was his recent post for contractors considering work in another state is to check that states contractor licensing laws. Part of me was just saying – ahh if it were just that simple… With that in mind, here are some additional thoughts of mine along with advice picked up and given to others considering a move to greener pastures in another state, another town or maybe even taking that sweet little project outside of your current area that seems too good to pass up.
Licensing:
Yep this is a no-brainer – but unfortunately, as I pointed out in a 2012 piece it isn’t always that simple as in some cases the state may not require licensing and instead leave it to the towns which can be real fun to figure out. How long will it take to obtain? Ahh, but what about other licenses that a township may require? Working on a pre-78 house – is the state a self-managed one or is your current EPA certificate and training good enough? (Living in a self-managed state but working on an Indian Reservation? Well you will need to be EPA certified) Does the area require a specialty Storm Water Certificate or???
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
OSHA ETS Heads to Sixth Circuit
December 13, 2021 —
George Morrison - White and Williams LLPOn November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow.
Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:
- The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
- The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
- The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”
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George Morrison, White and Williams LLPMr. Morrison may be contacted at
morrisong@whiteandwilliams.com
Loss Caused by Subcontractor's Faulty Work Covered in Georgia
January 17, 2013 —
Tred Eyerly, Insurance Law HawaiiThe Georgia Court of Appeals found a subcontractor was covered under a CGL policy for loss caused by alleged faulty workmanship. Maxum Indem. Co. v. Jimenez, 2012 Ga. App. LEXIS 970 (Ga. Ct. App. Nov. 20, 2012).
Jimenez was hired as a subcontractor to install pipes for a dormitory construction project at Georgia Southern University. Subsequent to the construction, a pipe burst occurred at the dormitory, causing damage to several units. After a jury trial, Jimenez was found liable for $191,382 in damages that arose from his negligent pipe work.
Jimenez was insured under a CGL policy issued by Maxum. Maxum filed a suit for a declaratory judgment, seeking a declaration that the claim against Jimenez was not covered.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
New Tariffs Could Shorten Construction Expansion Cycle
March 22, 2018 —
Anirban Basu - Construction Executive, A publication of Associated Builders and Contractors. All Rights Reserved.The Trump administration’s recent focus on tariffs on steel and aluminum has largely been in the context of potential trade wars, discordant views regarding globalism, renegotiating NAFTA, and exemptions for key allies and trading partners such as Canada and Mexico. But there is a broader context that implicates not only the construction industry and materials prices, but also the future trajectory of the U.S. economy.
The tariffs come during the ninth year of U.S. economic expansion. The economy gained momentum for much of 2017 and enters 2018 with considerable strength. The broadening of the U.S. economic expansion from merely being consumer led to also being associated with surging manufacturing output, construction activity, rising exports and business investment is attributable to many factors, including elevated business confidence and recently enacted tax reform.
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Anirban Basu, Sage Policy GroupMr. Basu may be contacted at
basu@abc.org
COVID-19 Vaccine Considerations for Employers in the Construction Industry
July 11, 2021 —
Maggie Spell - ConsensusDocs1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment?
In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats.
First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key.
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Maggie Spell, Jones Walker LLPMs. Spell may be contacted at
mspell@joneswalker.com
Governmental Action Exclusion Bars Claim for Damage to Insured's Building
November 27, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe lower court's decision finding no coverage based upon the governmental action exclusion was affirmed by the Appellate Court of Illinois. McCann Plumbing, Heating & Cooling v. Pekin Ins. Co., 2023 Ill.App. LEXIS 300 (Ill. App. Ct. Aug. 23, 2023).
McCann purchased a building to use for its heating, ventilation, and air conditioning business. The building was surrounded by two unihhabited properties which often flooded. The city determined that a building on the adjacent property had to be demolished. In the course of destruction, the McCann's building was damaged, leaving a portion of their building open to the elements.
McCann sought coverage from Pekin for damage incurred in the demolition. The policy provided coverage for "direct physical loss of or damage to" the covered property. Pekin denied coverage under the policy's governmental action exclusion, which provided,
We will not pay for loss or damage caused directly or indirectly by any of the following:
. . .
c. Governmental Action
Seizure or destruction of property by order of governmental authority . . .
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies
July 20, 2020 —
Scott P. DeVries & Michael S. Levine - Hunton Andrews KurthOn May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part.
The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation.
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
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