Washington Supreme Court Sides with Lien Claimants in Williams v. Athletic Field
September 30, 2011 —
Douglas Reiser, Builders Council BlogThe Washington Supreme Court issued their opinion today on Williams v. Athletic Field, perhaps the most talked about construction law case in the past few years. I have discussed this case exhaustively here on Builders Counsel. Today we have a resolution.
In an unanimous opinion issued today, the high court sided with lien filers who followed a sample form provided in RCW 60.04.091. Additionally, the court found that a lien company - and presumably other persons - could sign the lien for the lien claimant, as an agent, without invalidating the lien.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Montana Trial Court Holds That Youths Have Standing to Bring Constitutional Claims Against State Government For Alleged Climate Change-Related Harms
September 18, 2023 —
Paul A. Briganti & Julia Castanzo - White and Williams LLPOn August 14, 2023, in a “landmark” ruling, a Montana state court held that youth plaintiffs had standing to assert constitutional claims against the State of Montana, its governor and state agencies for “ignoring” the impact of greenhouse gas (GHG) emissions on climate change. Held v. State of Montana, Cause No. CDV-020-307 (1st Judicial Dist. Ct., Lewis & Clark Cty., Mt.). Agreeing with the plaintiffs, the court concluded that a limitation in the Montana Environmental Policy Act (MEPA), which prohibited the state from considering climate impacts when issuing permits for energy projects, violated the plaintiffs’ right under the state constitution to a “clean and healthful environment.”
MEPA, enacted in 1971, states that its purposes include “provid[ing] for the adequate review of state actions in order to ensure that . . . environmental attributes are fully considered by the legislature in enacting laws to fulfill constitutional obligations . . . .” In 2011, the legislature amended the statute to curtail the scope of environmental reviews. Under the so-called MEPA limitation, Montana agencies cannot consider “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Mont. Code Ann. § 75-1-201(2)(a). In 2023, the legislature added a provision that eliminated equitable remedies (i.e., the ability to “vacate, void, or delay a lease, permit, license, certificate, authorization, or other entitlement or authority”) for litigants who “claim that [an] environmental review is inadequate based in whole or in part upon greenhouse gas emissions and impacts to the climate in Montana or beyond Montana’s borders . . . .” Id. § 75-1-201(6)(a)(ii).
Reprinted courtesy of
Paul A. Briganti, White and Williams LLP and
Julia Castanzo, White and Williams LLP
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
Ms. Castanzo may be contacted at castanzoj@whiteandwilliams.com
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Power of Workers Compensation Immunity on Construction Project
November 30, 2017 —
David Adelstein - Florida Construction Legal UpdatesOn construction projects, workers compensation immunity is real and it is powerful. (See also this article.) Workers compensation immunity is why all general contractors should have workers compensation insurance and they should ensure the subcontractors they hire have workers compensation insurance. Workers compensation insurance becomes the exclusive form of liability for an injured worker thereby immunizing an employer (absent an intentional tort, which is very hard to prove as a means to circumvent workers compensation immunity).
If a general contractor, with workers compensation insurance, hires a subcontractor without workers compensation insurance, the general contractor’s workers compensation insurance will be responsible in the event an injury occurs to a subcontractor’s employee. The general contractor becomes the statutory employer.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Luxury Villa Fraudsters Jailed for Madeira Potato Field Scam
September 25, 2018 —
Franz Wild - BloombergFour men and a woman convicted of conning people to invest in a fraudulent luxury villa construction scheme on a potato field in the Portuguese island of Madeira were sentenced to as long as 5 1/2 years in a U.K. jail.
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Franz Wild, Bloomberg
Wildfire Insurance Coverage Series, Part 6: Ensuring Availability of Insurance and State Regulations
August 03, 2022 —
Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery BlogBecause of the potential exposure associated with wildfires, many insurers have attempted to withdraw from the property coverage market in various states. In this post in the Blog’s Wildfire Insurance Coverage Series, we discuss the challenges businesses and individuals face in obtaining wildfire insurance coverage, and the regulatory scheme that is intended to help them secure adequate coverage.
Given the increasing exposures associated with climate change, numerous insurers have sought to withdraw from the wildfire-related coverage market or increase rates to a level where they are effectively unavailable. States have been resistant to their doing so. As one commentator reports, “[e]ven where insurers have tried to withdraw policies or raise rates to reduce climate-related liabilities, state regulators have forced them to provide affordable coverage anyway, simply subsidizing the cost of underwriting such a risk policy or, in some cases, offering it themselves.” At least 30 states have developed regulation, referred to as “Fair Access to Insurance Requirements” (FAIR), to ensure the continued availability of insurance. The FAIR plan provides a channel to insurance for property owners who would be stuck without any reasonable access to insurance without state intervention.
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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North Carolina Appeals Court Threatens Long-Term Express Warranties
April 09, 2014 —
Beverley BevenFlorez-CDJ STAFFJonathan Massell of the firm Nexsen Pruet explained how a “recent holding by the North Carolina Court of Appeals is threatening to render many long-term express warranties ineffective,” in the online publication Lexology.
In Christie v. Hartley Construction, Inc., “the court held that the six-year North Carolina statute of repose for improvements to real property trumps the bargained-for duration terms of an express warranty.” In the Christie case, this meant that even though the homeowners had a twenty year warranty, because of the statute of repose, the warranty effectively expired after six years.
Massell stated to “be mindful of jurisdiction.” If the express warranty is in a state other than North Carolina, it’s possible that the claim could be filed in that state instead of North Carolina. For instance, according to Massell, South Carolina’s “statue of repose does not expire until eight years after the date of substantial completion for an improvement to real property.” Furthermore, “long-term warranties are not trumped by the South Carolina statute of repose.”
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Nevada Supreme Court Holds That Insureds Can Use Extrinsic Evidence to Prove Duty to Defend
February 28, 2022 —
Bethany L. Barrese - Saxe Doernberger & VitaThe recent Nevada Supreme Court ruling in Zurich American Insurance Company v. Ironshore Specialty Insurance Company1 benefits insureds seeking to establish an insurer’s duty to defend. As a matter of first impression, the court clarified that insureds have the burden to prove that an exception to a policy exclusion applies in order to trigger the insured’s duty to defend. However, while the policyholder may use extrinsic evidence to establish the insurer’s duty to defend, the insurer may not use extrinsic evidence to deny that duty.
The facts of the underlying claim are set in the 2000s when the insured subcontractors worked to build thousands of homes in Nevada. The subcontractors were insured by Zurich American Insurance Company (“Zurich”) during that period. After the homes were complete, the subcontractors switched from Zurich to Ironshore Specialty Insurance Company (“Ironshore”). Between 2010 and 2013, homeowners brought claims against the subcontractors alleging that the properties were damaged due to construction defects. The subcontractors tendered the claims to Zurich as the insurer at the time of construction. Zurich then sought defense and indemnification from Ironshore. Ironshore denied coverage under a “continuing and progressive” policy exclusion, claiming that the property damage occurred due to faulty work that predated the Ironshore policy. Notably, an exception to the exclusion applied if “sudden and accidental” property damage occurred within the Ironshore policy period. Given that the underlying lawsuits did not include specific allegations describing when or how the property damage occurred, Ironshore and Zurich disagreed on whether the exception to the exclusion was triggered..
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Bethany L. Barrese, Saxe Doernberger & VitaMs. Barrese may be contacted at
BBarrese@sdvlaw.com
Draft Federal Legislation Reinforces Advice to Promptly Notify Insurers of COVID-19 Losses
April 20, 2020 —
James Hultz - Newmeyer DillionInsurers across the country are nearly universally denying claims for business interruption stemming from the COVID-19 pandemic. Those denials have in turn been met with swift litigation and potential legislative action. The first business interruption coverage lawsuit related to COVID-19 was filed in New Orleans on March 16. There are now no less than 13 such cases nationwide and many more are likely to follow. Further, legislatures in at least seven states are considering legislation that would, to varying degrees, mandate business interruption coverage for COVID-19 losses, notwithstanding any seemingly contrary policy provisions.
From the early stages of the pandemic, we have consistently advised our clients to promptly notify their insurers of all COVID-19 related losses, even where coverage appeared uncertain. The deluge of coverage litigation and contemplated legislation could drastically alter how insurers handle COVID-19 claims. But policyholders who have failed to satisfy policy notice requirements could miss out on the benefits of those changes. Therefore, policyholders would be ill-advised to sit on the sidelines and wait it out.
Now, draft Federal legislation appears to add further impetus to instructions to “tender early.” The contemplated “Pandemic Risk Insurance Act of 2020” would reportedly devote billions of dollars of federal funds through a Department of Treasury administered reinsurance program designed to offset losses sustained by insurers who actually pay business interruption losses. The legislation is still taking shape but would reportedly create “a Federal program that provides for a transparent system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease.” President Trump is also reportedly pressuring insurers to provide business interruption coverage. The massive influx of federal funds and pressure from the White House could encourage insurers to reconsider denials of COVID-19 business interruption claims.
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James Hultz, Newmeyer DillionMr. Hultz may be contacted at
james.hultz@ndlf.com
