Pancakes Decision Survives Challenge Before Hawaii Appellate Court
March 12, 2015 —
Tred R. Eyerly – Insurance Law HawaiiIn 1997, the Hawaii Intermediate Court of Appeals (ICA) decided Pancakes of Hawaii, Inc. v. Pomare Prop. Corp., 85 Haw. 286, 944 P.2d 83 (Haw. Ct. App. 1997). Although not an insurance coverage case, Pancakes addressed the duty to defend in terms of a contractual indemnity obligation. Under challenge in a recent appeal before the ICA, the Court reaffirmed the holding in Pancakes. Arthur v. State of Hawaii, Dept. of Hawaiian Home Lands, 2015 Haw. App. LEXIS 109 (Haw. Ct. App. Feb. 27, 2015).
The decision is long with detailed facts complicated and many indemnities running in favor of various parties. This post focuses on the decision's discussion of Pancakes.
A resident, Mona Arthur, of the Kalawahine Streamside Housing Development, was killed when she apparently slipped and fell from a hillside adjacent to the project. She was on the hillside tending to her garden there. At the bottom of the hill was a two foot fence in front of a drainage ditch, where Mona allegedly hit her head.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Insured's Complaint for Breach of Contract and Bad Faith Adequately Pleads Consequential Damages
March 27, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court overturned the trial court's dismissal of the insured's complaint seeking consequential damages. D.K. Prop. Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh v, Pa., 2019 N.Y. App. Div. LEXIS 329 (N.Y. App. Div. Jan. 17, 2019).
The insured's building began to shift and exhibit structural damage, including cracks, after construction began in an adjoining building. The insured submitted a claim under its commercial insurance policy. The insurer did not pay the claim, nor did it disclaim coverage.
The insured sued, alleging breach of contract for failure to pay covered losses under the policy. The second cause of action was for breach of the implied covenant of good faith and fair dealing. The complaint also requested consequential damages in connection with each cause of action. The trial court granted the insurer's motion to dismiss the claim for consequential damages.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Certifying Claim Under Contract Disputes Act
June 08, 2020 —
David Adelstein - Florida Construction Legal UpdatesUnder the Contract Disputes Act (41 USC 7101 en seq.), when a contractor submits a claim to the government in excess of $100,000, the claim MUST contain a certification of good faith, as follows:
For claims of more than $100,000 made by a contractor, the contractor shall certify that–
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the contractor’s knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the contractor.
41 U.S.C. 7103(b)(1). See also 48 C.F.R. s. 33.207(c) as to the wording of the certification.
The contracting officer is not required to render a final decision on the claim within 60 days if, during this time period, he/she notifies the contractor of the reasons why the certification is defective. 41 U.S.C. 7103(b)(3). Importantly, the contracting officer’s failure to render a decision within 60 days is deemed an appealable denial.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
With an Eye Already in the Sky, Crane Camera Goes Big Data
February 02, 2017 —
Jeff Rubenstone - Engineering News-RecordIt started simple enough: a wireless camera mounted on the hook block of a tower crane, allowing the operator in the cab to see the rigger on the ground and the area around the hook. But just a few years later, Netarus’ HoistCam is part of a method to generate point-cloud images of jobsites from the highest perch around.
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Jeff Rubenstone, ENRMr. Rubenstone may be contacted at
rubenstonej@enr.com
Court Grants Insurer's Motion for Summary Judgment After Insured Fails to Provide Evidence of Systemic Collapse
April 15, 2024 —
Tred R. Eyerly - Insurance Law HawaiiWith the insurer conceding that there was evidence of potential collapse at portions of eight specific building locations, the court granted the insurer's motion for partial summary judgment in determining no additional buildings suffered from collapse. Exec. 1801 LLC v. Eagle W. Ins. Co., 2024 U.S. Dist. LEZXIS 5923 (D. Or. Jan. 11, 2024).
Executive 1801 owned a group of six buildings with eighty-six residential units. The court previously granted partial summary judgment on Executive 1801's rain damage claim, leaving only claims regarding collapse. Eagle insured "the property for direct physical los or damage to Covered Property . . . caused by or resulting from any Covered Cause of loss." The policy further provided, "We will pay for direct physical loss or damage to Covered Property, caused by collapse of a building or any part of a building insured under this policy, if the collapse is caused by . . . hidden decay."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Green Investigations Are Here: U.S. Department of Justice Turns Towards Environmental Enforcement Actions, Deprioritizes Compliance Assistance
January 10, 2022 —
Karen C. Bennett, R. Morgan Salisbury, Sean P. Shecter & Rose Quam-Wickham - Lewis BrisboisWashington, D.C. (January 4, 2022) - Two high-ranking Department of Justice (DOJ) officials announced that the Biden Administration is prioritizing environmental regulatory enforcement over compliance assistance. Todd Kim, Assistant Attorney General for the DOJ’s Environment and Natural Resources Division (ENRD), and Deborah Harris of the DOJ’s Environmental Crimes Section, indicated in mid-December 2021 that companies and individuals should expect more “vigorous enforcement,” with an emphasis on criminal enforcement. This new policy is in contrast to the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA)'s previous emphasis on compliance and pollution mitigation instead of enforcement actions under the prior administration.
DOJ’s new policy of promoting enforcement actions is consistent with the Biden Administration’s overall efforts to prioritize environmental justice. In April 2021, as explained in a previous Lewis Brisbois Client Alert, OECA released two memoranda directing enforcement teams to consider a variety of tools to resolve enforcement actions, including increased inspections, restitution, and reparation for victims of environmental crimes and overstepping state regulators where necessary.
Reprinted courtesy of
Karen C. Bennett, Lewis Brisbois,
R. Morgan Salisbury, Lewis Brisbois,
Sean P. Shecter, Lewis Brisbois and
Rose Quam-Wickham, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Mr. Salisbury may be contacted at Morgan.Salisbury@lewisbrisbois.com
Mr. Shecter may be contacted at Sean.Shecter@lewisbrisbois.com
Ms. Quam-Wickham may be contacted at Rose.QuamWickham@lewisbrisbois.com
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Real Estate & Construction News Roundup (08/30/23) – AI Predicts Home Prices, Construction’s Effect on the Economy, and Could Streamline Communications for Developers
October 17, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, SV invests in a new green “mega-city” outside San Francisco, refunds are given to investors in fraudulent real estate deal, homebuyers are losing purchasing power, and more!
- With major tech companies like Google and Amazon laying off workers, those with computer science and related degrees are looking to construction as a place to start or restart their careers. (Zachary Phillips, Construction Dive)
- Although Silicon Valley is the haven for most tech startups, Israel has become a place where those in construction innovation can find support and funding. (Matthew Thibault, Construction Dive)
- For those who may be concerned about the future price of their home, it may be possible for AI to look at a house and predict its price with “striking accuracy.” (Jacob Zinkula, Business Insider)
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Pillsbury's Construction & Real Estate Law Team
Billion-Dollar Power Lines Finally Inching Ahead to Help US Grids
April 03, 2023 —
Brian Eckhouse, Naureen S Malik & Dave Merrill - BloombergThe biggest impediment to the US achieving a cleaner power grid isn't climate deniers or fossil-fuel lobbies; it’s a lack of transmission lines. The country badly needs more conduits to cart wind and solar energy and hydropower to cities.
For more than a decade, multibillion-dollar power-line projects have struggled to advance, slowed or halted by bureaucracy, NIMBYism or general industry stasis. Now suddenly, several are progressing — and with them the prospect of newly unleashed clean energy as well as more resilient grids in the face of ever-dangerous storms and extreme heatwaves.
There’s SunZia in the Southwest, TransWest Express in the Mountain West, Grain Belt Express to the Midwest, and Champlain Hudson Power Express into New York City — projects that together will cost at least $13 billion. Some are now ordering expensive equipment, a signal of their advancement. SunZia and TransWest expect to begin construction this year.
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Brian Eckhouse, Bloomberg,
Naureen S Malik, Bloomberg and
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