Policy's Limitation Period for Seeking Replacement Costs Not Enforced Where Unreasonable
March 12, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe New York Court of Appeals determined that a two year period for obtaining replacement costs for damage to property was unenforceable where the property could not be reasonably replaced in two years. Executive Plaza, LLC v. Peerless Ins. Co., 2014 WL 551251 (N.Y. Ct. App. Feb. 13, 2014).
Plaintiff's office building was severely damaged in a fire on February 23, 2007. It cost more than a million dollars to restore the building to its previous condition. Plaintiff had $1 million in coverage from Peerless. The policy provided that replacement costs for any loss would be paid after the damaged property was repaired. The insured was required to make the repairs as soon as possible. Further, the policy provided that any legal action against the insurer had to be brought within two years of the loss.
Peerless paid the "actual cash value" of the destroyed building pursuant to the policy in the amount of $757,812.50. Peerless informed the plaintiff that it would have to provide documentation of the completion of repairs to collect the full replacement value, another $242,187.50.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Toolbox Talk Series Recap – Arbitration Motion Practice
August 07, 2023 —
Michael Zehner - The Dispute ResolverIn the June 22, 2023 edition of the Toolbox Talk Series,
Adrian Bastianelli, Peckar & Abramson, P.C., and
Brian Cashmere, Williams Mullen, moderated by Jennifer Millender of the American Arbitration Association (“AAA”), discussed motion practice in arbitration. Specifically, they offered advice on how to choose the right issue for a motion, how to get approval for a motion, how to write the motion, and how to get the arbitrator to grant it. They also discussed the pros and cons of motion writing in arbitration settings.
1. How to choose the “right issue” for a motion in arbitration
The panel discussed what type of issues can, or should, be brought up in a motion in arbitration. Cashmere stated that a clear and concise issue is best for this type of review. For example, statute of limitations, notice, or contract interpretation issues may make great summary judgment or partial summary judgment motions. Essentially, an issue that the arbitrator may resolve via primarily a question of law is more likely to succeed. Bastianelli warned against submitting just any “available” motion, as the practice may turn the arbitrator against you. Both panelists mentioned the need to consider strategy before filing a motion—ask, “how will filing this motion help or hurt reachingArbi final resolution.” Cashmere noted that sometimes the threat of bringing the issue to a hearing can put pressure on the adverse party in a way that is favorable to your client’s goals; possibly even more so than actually submitting the issue.
Read the court decisionRead the full story...Reprinted courtesy of
Michael Zehner, BBG Construction LawMr. Zehner may be contacted at
mzehner@bbglaw.com
Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit
September 09, 2011 —
CDJ STAFFThe Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.
In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.
When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.
Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.
In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.
The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”
Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
Meet D1's Neutrals Series: BILL FRANCZEK
August 14, 2023 —
Jessica Knox - The Dispute ResolverCompany: Woods Rogers Vandeventer Black PLC
Office Location: Norfolk, VA
Email: Bill.Franczek@wrvblaw.com
Website: https://wrvblaw.com/attorney_/william-e-franczek/
Law School: Syracuse University Law – JD, 1982, Magna Cum Laude, Order of the Coif
Types of ADR services offered: Arbitration, Dispute Resolution Boards and Panels, Mediation and Neutral Evaluations
Affiliated ADR organizations: American Arbitration Association (AAA); International Institute for Conflict Prevention and Resolution (CPR); London Court of International Arbitration (LCIA); International Court of Arbitration (ICC)
Geographic area served: Nationwide
Q: Describe the path you took to becoming an ADR neutral.
A: I have an undergraduate degree in Civil Engineering and a Professional Engineering License in NY and VA. So, when I became a lawyer, I applied for membership in the AAA, and was accepted as a construction neutral in 1987. I now practice construction law and serve as an ADR Neutral in matters across the country and internationally.
Read the court decisionRead the full story...Reprinted courtesy of
Jessica Knox, Stinson LLPMs. Knox may be contacted at
jessica.knox@stinson.com
2022 Construction Outlook: Continuing Growth But at Slower Pace
January 24, 2022 —
Garret Murai - California Construction Law BlogIn the midst of a pandemic that has lasted far longer than I think many of us thought it would, it’s been a study in contrasts:
- There has been over 305 million COVID-19 cases and 5.5 million deaths worldwide since the start of the pandemic.
- The U.S. stock market gained a whopping 26.9% in 2021.
- The annual rate of inflation in the U.S. hit 6.8% in November 2021 the highest it has been in nearly 40 years.
- The U.S. unemployment rate stood at 4.2% at the end of 2021, down from 14.7% in April 2020, the second highest unemployment rate since the Great Depression.
- The Doomsday Clock struck 100 seconds before midnight in 2021 as scientists warn that global leaders are doing too little too late to combat climate change that has seen global temperatures rise roughly 2 degrees Fahrenheit since the pre-industrial era.
- 2021 saw the launch of the first all-civilian spaceflight by Elon Musk’s Space X which was just one of 16 private spaceflights by tech billionaires Richard Branson’s Virgin Galactic and Jeff Bezos’ Blue Origin.
For the construction industry, when we started out in 2021, economists were estimating that construction starts would be up just 4% in 2021 after taking a 14% free-fall in 2020. As it turned out, construction starts increased 12% in 2021. That’s why economic forecasts should be viewed less like a marksmanship competition and more like horseshoes and hand grenades. Close is about the best you can realistically hope for.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Massive Fire Destroys Building, Firefighters Rescue Construction Worker
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFA “5-alarm fire burned down a residential building under construction in the Montrose area” of Houston, Texas, reported Click 2 Houston. Almost 200 emergency personnel were on the scene.
Captain Ruy Lozano told Click 2 Houston that “firefighters worked to contain the blaze, before the imminent collapse because the fire suppression systems were not yet in place for the under-construction building.”
ABC News reported that fire fighters rescued Curtis Reissig, a construction worker from the fire. “It’s burning my eyes, my throat. I can’t breathe and I can’t hardly see anything,” Reissig told ABC News. “I could see a window. I went to that window. Trying to open that window in a panic. I couldn’t get the thing open. Smoke was getting heavier, just trying to get some air.”
ABC News reported that Reissig jumped down from a fifth story balcony to a ledge below, where “firefighters pulled him to safety.”
Read the full story at Click 2 Houston...
Read the full story at ABC News... Read the court decisionRead the full story...Reprinted courtesy of
Rhode Island District Court Dismisses Plaintiff’s Case for Spoliation Due to Potential Unfair Prejudice to Defendant
September 04, 2018 —
Lian Skaf - The Subrogation StrategistIn Amica Mutual Ins. Co. v. BrassCraft Mfg., Co., 2018 U.S. Dist. LEXIS 88986 (D.R.I. May 29, 2018), the United States District Court for the District of Rhode Island addressed the question of whether the defendant was so unfairly prejudiced by the subrogating insurer’s spoliation of evidence that dismissal of the plaintiff’s case was the appropriate Rule 37(b)(2)(a)(i)-(vi) sanction. The court, focusing on the potential for undue prejudice to the defendant, granted the defendant’s motion to dismiss.
Read the court decisionRead the full story...Reprinted courtesy of
Lian Skaf, White and Williams, LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
You Cannot Arbitrate Claims Not Covered By The Arbitration Agreement
March 16, 2020 —
David Adelstein - Florida Construction Legal UpdatesRegardless 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 decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
