Hurricane Ian: Discussing Wind-Water Disputes
October 10, 2022 —
Randy J. Maniloff - White and Williams LLP“Most of the Florida homes in the path of Hurricane Ian lack flood insurance, posing a major challenge to rebuilding efforts, new data show. In the counties whose residents were told to evacuate, just 18.5 percent of homes have coverage through the National Flood Insurance Program, according to Milliman, an actuarial firm that works with the program.”
That’s how a September 29th article on The New York Times website begins.
When it comes to insurance coverage for hurricanes, the oft-stated maxim is that homeowner’s policies cover damage caused by wind but not flood waters.
Such a low take-up rate for flood insurance policies would seemingly create an incentive for those affected by Hurricane Ian to argue, when feasible, that their property damage, despite appearing to have been caused by flood, was also caused by wind. [And, of course, businesses looking to make business interruption claims, under commercial property policies, will be in the same boat.]
Further, even when someone has a homeowner’s policy and a flood policy, there may still be a reason to argue that the loss was caused by wind, as homeowner’s policies often have greater limits than flood policies.
[As an important aside, when hurricane damages are covered, homeowner’s policies can have a significant deductible, perhaps up to 10% of a home’s insured value.]
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Randy J. Maniloff, White and Williams LLPMr. Maniloff may be contacted at
maniloffr@whiteandwilliams.com
Indiana Federal Court Holds No Coverage for $50M Default Judgment for Lack of Timely Notice of Class Action
August 26, 2019 —
Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLPIn Greene v. Kenneth R. Will, a CGL insurer recently prevailed in a declaratory judgment action arising from an underlying class action alleging pollution and nuisance claims against the insured, VIM Recycling LLC, an Indiana-based waste-recycling facility.[1] “[T]his case has some whiskers on it,” the Indiana federal district court recounted in its exhaustive decision granting the insurer relief. The court relieved the insurer of indemnifying a $50 million default judgment against the insured, which, the court observed, “proved to be a bad neighbor” and “nuisance in both the legal and colloquial sense.” The court held that the insured failed to provide timely notice of the class action.
“The judgment against the [insured] came about when a group of nearby homeowners decided that they had had enough of VIM’s polluting behavior and brought this class action to recover damages for environmental violations, nuisance and negligence based on the impact of the waste facility on their homes and property,” the court explained. Eventually, the court entered a default judgment against the insured for $50,568,750, plus an award of $273,339.85 in attorney’s fees. Because the insured was “judgment-proof,” the class action plaintiffs “aligned” with the insured “hoping to collect on their monumental judgment” from the insured’s CGL insurer. Within a few weeks’ time, the class action plaintiffs sued the insurer seeking a declaration of coverage for the default judgment against the insured.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams LLP and
Timothy A. Carroll, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
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Let’s Get Surety Podcast – #126 Building the Future: AI, Construction and Law
December 31, 2024 —
Denis Serkin - Peckar & Abramson, P.C.Denis Serkin, partner in P&A’s New York and New Jersey offices, joins the latest episode of the NASBP podcast “
Let’s Get Surety” to delve into the transformative impact of AI on the construction industry and construction law.
In this insightful discussion, Denis explores how AI tools are already enhancing design and supply chains and shares his vision for AI’s eventual integration across every facet of the industry.
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Denis Serkin, Peckar & Abramson, P.C.Mr. Serkin may be contacted at
dserkin@pecklaw.com
Wait, You Want An HOA?! Restricting Implied Common-Interest Communities
September 17, 2018 —
Neil McConomy - Snell & Wilmer Real Estate Litigation BlogWhile the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential developments. Without HOAs, neighborhood open spaces, parks, and other amenities risk falling into disrepair through a type of tragedy of the commons, wherein residents use such amenities but refuse to subsidize care and maintenance for these common areas believing someone else will pony-up the funds. HOAs, when properly organized and managed, avoid this problem by ensuring everyone pays their fair shares for the common areas. Colorado’s Common Interest Ownership Act (“CCIOA”), C.R.S. § 38-33.3-101 et seq., sets forth the manner in which such common-interest communities, and their related associations, must be established.
Earlier this summer, the Colorado Supreme Court issued an opinion limiting the application of previous case law that allowed for the establishment of common-interest communities (and their related HOAs) by implication. See McMullin v. Hauer, 420 P.3d 271 (Colo. 2018). Prior to McMullin, Colorado courts had been increasing the number of factual scenarios implying the creation of common-interest communities under CCIOA. See e.g., Evergreen Highlands Assoc. v. West, 73 P.3d 1 (Colo. 2003) (finding an implied obligation of landowners to fund a pre-existing HOA’s obligations); DeJean v. Grosz, 412 P.3d 733 (Colo. App. 2015) (finding an implied right of a homeowner to found an HOA after the developer filed a declaration expressing an intent to form one but ultimately failed to do so); and Hiwan Homeowners Assoc. v. Knotts, 215 P.3d 1271 (Colo. App. 2009) (finding the existence of an HOA despite no common property existing within the development). The McMullin opinion highlights the importance of strict compliance with CCIOA to preserve common areas in a development, ensure the ability to fund maintenance of such areas, and avoid future litigation.
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Neil McConomy, Snell & WilmerMr. McConomy may be contacted at
nmcconomy@swlaw.com
City of Sacramento Approves Kings NBA Financing Plan
May 21, 2014 —
Beverley BevenFlorez-CDJ STAFFSacramento, California’s city council recently approved a financing plan that will enable the construction of the $477 million downtown arena project to move forward, reported KNOE News. Sacramento will now be responsible for a $223 million subsidy, and “the Kings would contribute $254 million to construct the arena and develop surrounding land with a hotel, office tower and shopping.”
“Kings President Chris Granger called it a historic day for the team and Sacramento region, saying the arena would serve as a hub for economic development,” according to KNOE News. “The project would bring 11,000 construction jobs and 4,000 permanent jobs, [Granger] said.”
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Contractual Impartiality Requires an Appraiser to be Unbiased, Disinterested, and Unswayed by Personal Interest
June 01, 2020 —
Frank Ingham - Colorado Construction Litigation BlogOn June 24, 2019, the Colorado Supreme Court held that when a contract or insurance policy requires an “impartial” appraisal, the appraiser for a party cannot be an advocate for that party.[1] In this situation, the appraiser must be unbiased, disinterested, without prejudice, and unswayed by personal interest. Id.
Owners Insurance Company (“Owners”) issued a policy to the Dakota Station II Condominium Association, Inc. (“Association”) that represents a 49-building multifamily residential property in Jefferson County, Colorado. Concerning loss conditions, the policy includes an appraisal provision requiring that, in the event of property appraisal, “each party will select a competent and impartial appraiser.” The parties would then select an umpire or have one appointed by the court. Any agreement as to the values reached by two of the three would bind them all.
On May 24, 2012, the Association made a storm-damage roofing claim to Owners for $1.33 million. The parties could not agree on the amount of the loss and the Association invoked the policy’s appraisal process. The Association retained Scott Benglen as its contingent-fee cap appraiser. Mr. Benglen retained Laura Haber as a policy and damage expert, who appraised the roof loss at $2.55 million and the total replacement at $4.3 million.[2] Owners’ appraiser, Mark Burns, submitted the loss at $1.86 million with the replacement cost award of $2.3 million. The umpire, Honorable James Miller, adopted Owners’ estimates in four of the six categories, awarding just over $3 million to the Association. Id.
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Frank Ingham, Higgins, Hopkins, McLain & RoswellMr. Ingham may be contacted at
ingham@hhmrlaw.com
Contractor Walks Off Job. What are the Owner’s Damages?
September 25, 2018 —
David Adelstein - Florida Construction Legal UpdatesWhat are your damages as the result of a breach of the construction contract? This is an important question, right? It is probably the most important part of your case. If you didn’t have damages, you wouldn’t be in a dispute. So, I repeat, what are your damages as the result of a breach of the construction contract? The below case explains dealing with a contractor that elected to walk off the job mid-construction.
In Forbes v. Prime General Contractors, Inc., 43 Fla.L.Weekly D20194a (Fla. 2d DCA 2018), owners hired a contractor to perform a residential renovation job for $276,000. The owners were to pay the contractor in five draw payments (common for residential jobs) where the third draw payment was due upon the contractor’s completion of the dry-in (as defined in the contract). After the contractor received the first two draw payments totaling $138,000 plus an additional $6,000 for updated architectural plans, the contractor claimed the job doubled in price and demanded that the owners pay the contractor the third draw payment immediately (before it was due) plus an additional $31,450. The contractor refused to continue unless the owners agreed to its terms, and then walked off the job when the owners would not agree to these terms (nor should the owners agree to those terms). At the time the contractor walked off the job, the owners’ home was not habitable due to the construction.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
The Pandemic, Proposed Federal Privacy Regulation and the CCPA
November 02, 2020 —
Heather Whitehead - Newmeyer DillionThe U.S. Senate Committee on Commerce, Science and Transportation met recently to discuss considerations for implementing federal privacy laws. Not surprisingly, the main impetus to reevaluate a federal framework is the ongoing COVID-19 pandemic with the greatly increased reliance on online working and school arrangements, as well as the need to share personal information for contact tracing and other efforts to weaken the pandemic.
While federal regulation of personal information has been proposed in the past, there are a few key issues that still remain unresolved. One is enforcement of the regulations. The issue is whether enforcement should be handled by the Federal Trade Commission or if the establishment of a new federal authority is needed to enforce privacy requirement violations. Other key outstanding issues include pre-emption of state rights and whether any regulations should include a private right of action.
Given that the California Consumer Privacy Act of 2018 (CCPA) is the most stringent state regulation addressing data privacy in the United States, California Attorney General Xavier Becerra participated as a witness in the recent Senate Hearing. He shared his opinions as to both federal pre-emption and the need for a private right of action. He recommended that the committee preclude federal regulation from pre-empting state laws, including the CCPA. He noted that individual states are in a better position to adapt and keep up with technological innovation, and that some states have also already implemented thorough privacy protections, such as Mississippi and Washington. With respect to the private right of action, he admitted his office can only do so much to enforce these regulations amongst California’s huge population of businesses and residents. His belief is that individual consumers need the ability to pursue their own remedies in court.
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Heather Whitehead, Newmeyer DillionMs. Whitehead may be contacted at
heather.whitehead@ndlf.com
