Florida Lien Law and Substantial Compliance vs. Strict Compliance
April 20, 2017 —
David Adelstein - Florida Construction Legal UpdatesThere are literally some (or, perhaps, many!) disputes that will make you say “hmm!” The “hmm” is a euphemism for “what is a party thinking?!?” The case of Trump Endeavor 12 LLC v. Fernich, Inc., 42 Fla. L.Weekly D830a (Fla. 3d DCA 2017) is one of these cases because a party (the owner) is banking its defense on a technical “all-or-nothing” argument pertaining to whether a lienor (a supplier) substantially complied with Florida’s Lien Law because a supplier’s Notice to Owner identified the wrong general contractor. This is a challenging argument because the owner has to prove how they were adversely affected / prejudiced by the lack of substantial compliance, which is not an easy burden.
This case concerns the Trump National Doral Miami project. The project consisted of a lodge project and a separate clubhouse project, both of which had different general contractors. On the lodge project, the general contractor hired a painter which, in turn, procured paint from a supplier (the lienor). The supplier visited the project and obtained the Notice of Commencement from the owner so that it could perfect its lien rights. The owner furnished the supplier the Notice of Commencement for the clubhouse project that had a different general contractor. Relying on this Notice of Commencement, the supplier served a Notice to Owner. The Notice to Owner was timely serviced however it identified the wrong contractor – it identified the general contractor for the clubhouse project instead of the lodge project. Although the supplier later learned there was a different general contractor on the lodge project, it did not remedy the issue by serving a Notice to Owner on the correct contractor. Indeed, the contractor for the lodge project learned of the Notice to Owner furnished by the supplier and that the supplier was furnishing paint to the painting subcontractor for purposes of that project.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Court Finds That $400 Million Paid Into Abatement Fund Qualifies as “Damages” Under the Insured’s Policies
November 21, 2022 —
Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery BlogIn
Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s London, et al., the Court of Appeals for Ohio’s Eighth District reversed the lower court, finding that money paid by the insured into an abatement fund was “damages” as that undefined term was used in the policyholder’s insurance policies. 2022-Ohio-3031, ¶ 1. Sherwin-Williams is a cautionary tale about how insurers may try to narrow the meaning of undefined terms in their insurance policies.
The dispute in Sherwin-Williams focused on coverage for $400 million that the policyholder and other defendants were ordered to pay into an abatement fund to be used by California cities and counties to mitigate the hazards caused by lead paint in homes. Id. ¶ 1. Although the underlying litigation proceeded in California, Ohio law governed coverage, which raised issues of first impression in Ohio. Id. Among other things, the insurers argued that the money paid into the abatement fund did not qualify as “damages” under the policies. Id. ¶ 57. The insured argued that, because the insurers did not define “damages” in the policies, the term had to be given its ordinary meaning. Id. ¶ 56.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth and
Yaniel Abreu, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Abreu may be contacted at yabreu@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Real Estate & Construction News Roundup (09/12/23) – Airbnb’s Future in New York City, MGM Resorts Suffer Cybersecurity Incident, and Insurance Costs Hitting Commercial Real Estate
October 30, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, the FDIC handles the portfolio from Signature Bank, the U.S. Army Corps of Engineers funds a new center at Illinois, the Athletics take their next steps in their move to Las Vegas, and more!
- For those looking to rent an Airbnb for future travel to New York City, it just became much harder with new rules taking effect on September 5th. (Natalie Lung, The Washington Post)
- This past weekend MGM Resorts suffered a cybersecurity incident that affected some of the company’s systems with the extent of the incident still unknown. (ABC)
- Among issues such as rent increases and general inflation, commercial real estate is also having to contend with rising insurance costs due to climate change. (Justin Worland, Time)
Read the court decisionRead the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
Home Numbers Remain Small While Homes Get Bigger
June 28, 2013 —
CDJ STAFFCatherine Rampell reports in the New York Times that while the number of single-family homes built in 2012 was still at the very bottom of the range, since the government starting recording this data in 1973, the medium size for these homes is at its largest ever. According to data collected by the Census Bureau, these homes also have more bedrooms and bathrooms than previously. Of all homes built in 2012, forty-one percent had four or more bedrooms and thirty percent had three or more bathrooms. Both of these were the highest percentages in those categories.
Meanwhile, the size of newly-built rental units declined in 2012. While still larger than the average rental unit built in 1999 (the earliest date given in the article), there has been little change over the last decade. During the same period, the size of sale units in multi-family buildings did show an increase.
Read the court decisionRead the full story...Reprinted courtesy of
White and Williams Announces Lawyer Promotions, Four Attorneys Promoted to Partner and One Attorney Promoted to Counsel
January 23, 2023 —
White and Williams LLPPHILADELPHIA -- White and Williams LLP is very pleased to announce the promotion of the following attorneys: Michael J. Ciamaichelo, Russell P. Lieberman, Tanya A. Salgado and Brett N. Tishler, who have become members of the firm’s partnership. All four attorneys are promoted from counsel to partner. The firm has also promoted Zachery B. Roth from associate to counsel. The partnership concluded in elevating these attorneys that each have made significant contributions to the firm and their respective practices.
“All of our new partners and counsel enrich the firm both internally and externally. They have a demonstrated, deep commitment to client service excellence and through their dedication, personal sacrifice and leadership warranted elevation to partnership and counsel at White and Williams,” said firm Managing Partner Andy Susko. “We are proud to welcome these four lawyers to our partnership and look forward to their continued contributions to the firm’s success.”
Read the court decisionRead the full story...Reprinted courtesy of
White and Williams LLP
Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause
December 16, 2023 —
David Adelstein - Florida Construction Legal UpdatesMandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy.
In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons.
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
Leveraging the 50-State Initiative, Connecticut and Maine Team Secure Full Dismissal of Coverage Claim for Catastrophic Property Loss
March 23, 2020 —
Regen O'Malley - Gordon & Rees Insurance Coverage Law BlogOn behalf of Gordon & Rees’ surplus lines insurer client, Hartford insurance coverage attorneys Dennis Brown, Joseph Blyskal, and Regen O’Malley, with the assistance of associates Kelcie Reid, Alexandria McFarlane, and Justyn Stokely, and Maine counsel Lauren Thomas, secured a full dismissal of a $15 million commercial property loss claim before the Maine Business and Consumer Court on January 23, 2020. The insured, a wood pellet manufacturer, sustained catastrophic fire loss to its plant in 2018 – just one day after its surplus lines policy expired.
Following the insurer’s declination of coverage for the loss, the wood pellet manufacturer brought suit against both its agent, claiming it had failed to timely secure property coverage, as well as the insurer, alleging that it had had failed to comply with Maine’s statutory notice requirements. The surplus lines insurer agreed to extend the prior policy several times by endorsement, but declined to do so again. Notably, the insured alleged that the agent received written notice of the non-renewal prior to the policy’s expiration 13 days before the policy’s expiration. However, the insured (as well as the agent by way of a cross-claim) asserted that the policy remained effective at the time of the loss as the insured did not receive direct notice of the decision not to renew coverage and notice to the agent was not timely. Although Maine’s Attorney General and Superintendent intervened in support of the insured’s and agent’s argument that the statute’s notice provision applied such that coverage would still be owed under the expired policy, Gordon & Rees convinced the Court otherwise.
At issue, specifically, was whether the alleged violation of the 14-day notice provision in Section 2009-A of the Surplus Lines Law (24-A M.R.S. § 2009-A), which governs the “cancellation and nonrenewal” of surplus lines policies, required coverage notwithstanding the expiration of the policy. The insured, the agent, and the State of Maine intervenors argued that “cancellation or nonrenewal” was sufficient to trigger the statute’s notice requirement, and thus Section 2009-A required the insurer to notify the insured directly of nonrenewal. In its motion to dismiss, Gordon & Rees argued on behalf of its client that Section 2009-A requires both “cancellation and nonrenewal” in order for the statute to apply. Since there was no cancellation in this case – only nonrenewal – Gordon & Rees argued that Section 2009-A is inapt and that the insurer is not obligated to provide the manufacturer with notice of nonrenewal. Alternatively, it argued that the statute is unconstitutionally vague and unenforceable.
Read the court decisionRead the full story...Reprinted courtesy of
Regen O'Malley, Gordon & ReesMs. O'Malley may be contacted at
romalley@grsm.com
Appraisal Award for Damaged Roof Tiles Challenged
December 04, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe district court denied Travelers' motion for summary judgment and granted the insureds' motion in part regarding replacement of roof tiles damaged in a hail storm. Bertisen v. Travelers Home & Marine Ins. Co., 2023 U.S. Dist. LEXIS 159649 (D. Colo. Sept. 8,2023).
On May 8, 2017, the insureds' home was struck by a hailstorm that damaged their property. A Travelers inspector found damage to metal roof components, a deck, patio furniture and gutters. A partial payment of $6,381.04 was made. A further payment was made for personal property damaged by the storm. Travelers disputed that the hailstorm caused damage to all of the roof tiles.
Travelers' adjustor reinspected the property and observed additional damages caused by hail and another payment of $6,605.22 was issued.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
