Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims
December 11, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023).
The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible.
The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Builders Beware: Smart Homes Under Attack by “Hide ‘N Seek” Botnet
October 30, 2018 —
Scott L. Satkin & Amtoj S. Randhawa - Newmeyer & Dillion LLPGerman manufacturer eQ-3 has found itself under siege by a botnet known as "Hide 'N Seek." This pernicious malware has infected tens of thousands of eQ-3's smart home devices by compromising the device's central control unit. Once a device has been infected, the malware spreads to other Internet of Things ("IoT") devices connected to the same wireless network. IoT devices have become the prime target for botnet attacks. As opposed to computers, laptops, or other larger computing devices, the smaller storage capacity and lower processing power of IoT devices limit the amount and complexity of the security measures that can be installed—making them an easier target for botnets.
What is a Botnet?
For those unfamiliar with the term, a botnet is a network of devices infected with a malware program allowing the infector to control and/or exploit the devices. Once a suitable number of devices are infected, the person or group controlling the botnet can harness the computing power of each infected device to perform activities which were previously constrained by a single device's capabilities (i.e. DDoS attacks, spamming, cryptocurrency mining, etc.).
Hide 'N Seek – History and Capabilities
The Hide 'N Seek botnet first appeared in January 2018 and has since spread rapidly. Its sophisticated design and capabilities have captivated the attention of many security watchdogs and researchers. While many botnets are designed to be "quick and dirty" (i.e. infect a few devices, eke out a little profit, and inevitably be cleared out or rendered ineffective by security updates and fixes), Hide 'N Seek was designed to maintain itself in the host's system indefinitely. When it was first released, Hide 'N Seek primarily targeted certain routers and internet-enabled security cameras; however, it has now began targeting digital video recorders, database servers, and most recently, smart home hubs.
Hide 'N Seek's communication capabilities are also more advanced than previous botnets. Previous botnets relied on existing communications protocols to communicate with other another, but Hide 'N Seek uses a custom-built peer-to-peer system to communicate. This advancement allows Hide 'N Seek to spread more rapidly than previous botnets.
Hide 'N Seek is also capable of extracting a device owner's personal information (i.e. name, address, e-mail, telephone numbers, etc.) whereas previous botnets were not. Most importantly, Hide 'N Seek is consistently updated to increase its infection rate, decrease its detection probability, and bypass any security measures designed to detect and remove it from the system. This modularity has proved to be Hide 'N Seek's greatest strength.
Protecting Against Hide 'N Seek and Other Botnets
While many of the precautions will undoubtedly come from the device manufactures vis-à-vis software programming and updates, homebuilders can still take some precautions to protect their customers.
- When selecting a smart home system to incorporate into a home's construction, be sure to evaluate its security features including, but not limited to its: wireless connectivity, password/passphrase requirements, interconnectedness with other IoT devices, etc. Third-party reviews from tech-oriented outlets will likely have useful information on a device's security measures, vulnerabilities, and any recent security compromises.
- Be vigilant in installing any eQ-3 smart home systems. The extent of the damage caused by Hide 'N Seek botnet remains unknown, as does damage from other potentially-infected technology. Thus, it may be prudent to avoid installing any eQ-3 device until it becomes evident that the threat has been neutralized and all security vulnerabilities have been remedied.
- If a builder uses technology other than eQ-3, precautions must be taken. Ensure that technology providers are thoroughly researched. It is also recommended to include strong contractual indemnity provisions, and require vendors to carry cyber-specific insurance policies.
- Homebuilders should consider purchasing their own stand alone cyber liability policies as a safety net, should potential exposure arise.
Scott Satkin and Amtoj Randhawa are associates in the Cybersecurity group of Newmeyer & Dillion. Focused on helping clients navigate the legal dispute implications of cybersecurity, they advise businesses on implementing and adopting proactive measures to prevent and neutralize cybersecurity threats. For questions on how they can help, contact Scott at scott.satkin@ndlf.com and Amtoj at amtoj.randhawa@ndlf.com.
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“Positive Limiting Barriers” Are An Open and Obvious Condition, Relieving Owner of Duty to Warn
June 13, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On June 1, the U.S. Court of Appeals for the First Circuit decided the case of Potvin v. Speedway, Inc., a personal injury case subject to the laws of Massachusetts. In Massachusetts, environmental rules require the installation of “positive limiting barriers” at gasoline service stations to contain gasoline spills of up to 5 gallons. At a self-service station now owned by Speedway, Inc., the plaintiff, a passenger in a car being serviced, exited the car but tripped on these barriers and was injured. She sued Speedway in state court, and the case was removed to federal court.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Protect Your Right To Payment By Following Nedd
August 03, 2022 —
Denise Motta - Gordon & Rees Construction Law BlogIn order to preserve your right to payment, you must satisfy the contractual requirements supporting a change order for the increased costs or time due to the delay. The key to the successful presentation of change order claims is educating your team on the following:
1. NOTICE
- Review the change order and notice provisions of your contracts. Make your contract searchable and insert the term “Noti” and look for the items listed below.
- Who: Check the designated representative for notice.
- It may not be the project manager.
- Confirm who can authorize the change order.
- Is owner approval required?
- Ensure that the party approving the change order has authority to do so.
- What: Check for specific information required by the contract.
- Provide ALL information available.
- If certain information is not yet available, state that the information will be provided when available.
- Reserve all rights to amend and submit additional information.
- Request both an increase to the Contract Sum and Contract Time.
- Make the request even if you do not believe the delay or time necessary will cause a significant impact.
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Denise Motta, Gordon Rees Scully Mansukhani, LLPMs. Motta may be contacted at
dmotta@grsm.com
CSLB Begins Processing Applications for New B-2 License
June 21, 2021 —
Garret Murai - California Construction Law BlogAs we wrote about in our
2021 Construction Law Update, one of the new laws to take effect on January 1, 2021 was the enactment of
SB 1189 which created a new B-2 Residential Remodeling Contractor’s license. The new license is available to contractors working on existing homes with residential wood frame structures requiring at least three (3) unrelated trades or crafts under a single contract.
Beginning June 1, 2021, the Contractors State License Board began accepting applications for the B-2 Residential Remodeling Contractor’s license. According to a press release from the CSLB:
The B-2 classification provides a pathway to licensure for many unlicensed people who are currently working on remodeling and small home improvement projects that don’t qualify for a B-General Building License because the contracted work does not include framing or rough carpentry. Consumers employing a licensed contractor have reduced liability and greater consumer protection. Licensees benefit from licensure as they have opportunities to lawfully advertise, and compete on a level playing field for jobs.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
COVID-19 and Mutual Responsibility Clauses
June 01, 2020 —
Joseph M. Leone - ConsensusDocsAs everyone knows, there is a tremendous amount of uncertainty in the construction industry due to the COVID-19 pandemic. Schedules, productivity, safety processes, and seemingly everything else are being affected. In these difficult times, most contractors are making every effort to work together to solve the problems caused by COVID-19. But what happens when differences arise between project owners, contractors, and subcontractors as to the effect of COVID-19 on a project? One party may want to continue pushing the schedule, others may want to slow down, or, more likely, not be able to keep up with the original schedule because of some reason related to COVID-19. As between a prime contractor and a subcontractor, a mutual responsibility clause can provide some clarity or, unfortunately, depending on how the subcontract is written, confusion.
Almost all subcontracts have a clause which flows down the prime contractor’s obligations on a project to the subcontractor as applicable to the subcontractor’s work. Known as “flow-down” clauses, this clause works in one direction; obligations of the prime contractor “flow-down” to the Subcontractor. A mutual responsibility clause, in essence, works in both directions. The subcontractor is required to perform its obligations consistent with the prime contractor’s obligations to the owner and the subcontractor is granted the same rights against the prime contractor which the prime contractor has against the owner. Obligations flow down and rights flow up. The rights and obligations flowing through the prime contractor include, the obligation to perform the work in accordance with the plans and specifications, the obligation to meet the schedule constraints in the prime agreement, and the right to extensions of time and change orders to the extent the prime contractor obtains the same.
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Joseph M. Leone, Drewry Simmons Vornehm, LLP Mr. Leone may be contacted at
jleone@dsvlaw.com
Best Lawyers Recognizes Hundreds of Lewis Brisbois Attorneys, Honors Four Partners as ‘Lawyers of the Year’
October 16, 2023 —
Lewis Brisbois(August 17, 2023) – Best Lawyers has selected 172 Lewis Brisbois attorneys across 46 offices for its 30th edition of
The Best Lawyers in America. It has also recognized four Lewis Brisbois partners on its "Lawyers of the Year" list: Akron Managing Partner David Kern (Mergers and Acquisitions Law); Newark Partner Meredith Kaplan Stoma (Professional Malpractice Law - Defendants); Philadelphia Partner Steven D. Urgo (Litigation – Insurance); and Roanoke Managing Partner John T. Jessee (Medical Malpractice Law – Defendants).
Please join us in congratulating the following attorneys on their Best Lawyers recognition! You can see the full list of attorneys named to
Best Lawyers' Ones to Watch in America here.
Akron, OH
- Partner John F. Hill - Bet-the-Company Litigation, Commercial Litigation, Legal Malpractice Law – Defendants, and Personal Injury Litigation - Plaintiffs
- Partner Kerri Keller - Commercial Litigation
- Managing Partner David Kern - Corporate Law, Mergers and Acquisitions Law, Tax Law, and Trusts and Estates
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Lewis Brisbois
$17B Agreement Streamlines Disney World Development Plans
July 22, 2024 —
Derek Lacey - Engineering News-RecordWalt Disney Parks and Resorts received the green light on $17 billion in development plans in and around Walt Disney World in Orange County, Fla,, garnering approval June 12 from the board of the Central Florida Tourism Oversight District (CFTOD) for its sprawling capital plan.
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Derek Lacey, Engineering News-Record
Mr. Lacey may be contacted at laceyd@enr.com
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