Courts Are Ordering Remote Depositions as the COVID-19 Pandemic Continues
August 10, 2020 —
Victor J. Zarrilli, Robert G. Devine & Douglas M. Weck - White and WilliamsThe COVID-19 pandemic has generally put a stop to in-person depositions nationwide. Many litigants and their attorneys have also resisted attempts to proceed with remote video depositions, some holding out for the pandemic to subside and for the return of in-person business as usual while others are resistant to using new or unfamiliar virtual video technology. However, with COVID-19 cases still increasing nationwide, courts are beginning to mandate that depositions proceed remotely regardless of these apprehensions. It looks like remote video depositions may become part of a new set of best practices and perhaps mandatory in some circumstances for the foreseeable future.
The Supreme Court of New Jersey, for example, has ordered that “[t]o the extent practicable . . . depositions should continue to be conducted remotely using necessary and available video technology.” The court has not explicitly mandated remote depositions, but has certainly encouraged trial courts to do so, indicating in orders litigants are “strongly encouraged” to depose witnesses remotely. Other jurisdictions, such as Philadelphia’s First Judicial District, have given trial court’s similar authority and flexibility.
Recently, a trial court in Middlesex County, New Jersey granted a motion to compel a defense deposition of the plaintiff to proceed remotely, if not in person, over the objection of plaintiff’s counsel in a slip-and-fall case. This is one of the first such rulings in this area. The plaintiff’s counsel objected to the remote deposition on the grounds that his client was elderly with a heavy accent, had no technology knowledge, and had no internet access. That would seem to be a pretty good argument that a remote deposition would be impracticable. However, the defendant bolstered their case with an offer to cover the cost of renting and delivering a remote deposition technology package to the plaintiff, complete with a tablet, phone, speaker, internet hotspot and remote training beforehand. Although the trial court acknowledged the plaintiff’s “significant hardship,” the court ordered that the deposition proceed remotely if not in person.
Reprinted courtesy of White and Williams attorneys
Robert Devine,
Douglas Weck and
Victor Zarrilli
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com
Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com
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Is There Direct Physical Loss Under A Property Policy When COVID-19 is Present?
April 06, 2020 —
Tred R. Eyerly - Insurance Law HawaiiMost property policies provide coverage for property damage only when there is "direct physical loss" to covered property. Early indications are that COVID-19 remains on surfaces. The duration can last from a few hours to three weeks, depending on the type of surface material. If an employee is infected and the store or restaurant must closed because the virus may rest on surfaces within the building, is there direct physical loss, even though the building structure itself is unharmed?
To answer this question, cases from jurisdictions outside Hawaii may provide guidance. In a case from Louisiana, the homeowner had to move out of her home when excessive levels of organic lead were discovered in the kitchen, living room, master bedroom, and attic. Widder v. La. Citizens Prop. Ins. Corp., 82 So. 3d 294 (La. Ct. App. 2011). The insurer denied coverage because there was no direct physical loss. The trial court agreed; since the home was still intact, no direct physical loss had occurred, so there was no coverage under the policy. The appellate court reversed. It compared the presence of inorganic lead in the home to cases that found a direct physical loss from the existence of Chinese drywall, from which gaseous fumes were released, rendering the home unusable or uninhabitable. Physical damage was not necessary.
What if smoke from a nearby wildfire fills an outdoor theater, forcing cancellation of performances and loss of business income? This was the situation in Oregon Shakespeare Festival Ass'n v. Great Am. Inc. Co., 2016 U.S. DIst. LEXIS 74450 (D. Ore. Jun 7, 2016). Wildfires in the area caused smoke, soot, and ash to accumulate on the surface of seats and concrete ground of the open-air theater. The air quality was poor, but no federal, state or local agency ordered cancellation of the performances. Further, the theater did not suffer any permanent or structural damage to its property. The insurer denied coverage, contending that the loss or damage must be structural to the building itself. After all, the smoke in the air at the theater did not require any repairs to the structure of the property. The court disagreed. The theater sustained "physical loss or damage to property" when the wildfire smoke infiltrated the theater and rendered it unusable for its intended purpose. The decision in Oregon Shakespeare Festival was eventually vacated by a joint stipulation of the parties. Oregon Shakespeare Festival Ass'n v. Great Am. Ins.Co., 2017 U.S. Dist. LEXIS 33208 (D. Ore. March 6, 2017), but the reasoning is still sound.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Colorado’s New Construction Defect Law Takes Effect in September: What You Need to Know
September 07, 2017 —
Jesse Witt - The Witt Law FirmColorado’s new construction defect law officially takes effect this month. Although HB 17-1279 was passed in May, the statutory text provides that it only applies “with respect to events and circumstances occurring on or after September 1, 2017.” With that date now upon us, practitioners should be mindful of the law’s new requirements.
The law applies to any lawsuit wherein a homeowner association files a construction defect action on behalf of two or more of its members. “Construction defect action” is defined broadly to include any claims against construction professionals relating to deficiencies in design or construction of real property. Before an association may commence such an action, its board must follow several steps.
First, the board must deliver notice of the potential construction defect action to all homeowners and the affected construction professionals at their last known addresses. This requirement does not apply to construction professionals identified after the notice has been mailed, or to construction professionals joined in a previously-approved lawsuit. The notice must include a description of the alleged construction defects with reasonable specificity, the relief sought, a good-faith estimate of the benefits and risks involved, and a list of mandatory disclosures concerning assessments, attorney fees, and the marketability of units affected by construction defects. The notice must also call a meeting of all homeowners. The notice should be sent to the construction professionals at least five days before the homeowners.
Reprinted courtesy of
Jesse Howard Witt, Acerbic Witt
Mr. Witt may be contacted at www.witt.law
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Oregon Duty to Defend Triggered by Potential Timing of Damage
June 28, 2013 —
CDJ STAFFThe Oregon Supreme Court has concluded that if it is possible that damage could have occurred prior to the completion of the project, then the policies in effect at that time are triggered. John Green of Farella Braun + Martel LLP writes that “we have long argued that, since the duty to defend exists if there is any ‘potential’ of covered liability, there is a potential that damage happened before that project was completed, or at any time after completion, triggering all policies in that time frame.” The Oregon court concluded that if property damage could have happened during construction, the insuerer had a duty to defend and “the insured had no burden to establish any additional facts to support that potential.”
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Putting 3D First, a Model Bridge Rises in Norway
June 21, 2021 —
Aileen Cho - Engineering News-RecordWhen the Norwegian Public Roads Administration asked the design-build team of Sweco, PNC, Armando Rito Engenharia and Isachsen to deliver a 643-meter-long concrete box-girder bridge completely in 3D, designers with Armando Rito were initially a bit skeptical. In the firm’s home country of Portugal, it had used building information modeling on some projects, “but not in terms of bridges, and not this advanced,” says Tiago Vieira, the firm’s design team leader. “Norway is more advanced regarding this type of methodology than other countries.”
Reprinted courtesy of
Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Top Developments March 2024
April 22, 2024 —
Complex Insurance Coverage ReporterCLAIMS-MADE COVERAGE
Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, 2024 Del. LEXIS 68 (Del. Feb. 26, 2024)
Delaware Supreme Court concludes that a letter from a lawyer informing an insured of possible lawsuits without identifying potential plaintiffs or demanding payment is not a “claim for damages” within the meaning of claims-made CGL and umbrella liability policies. Citing case law from Delaware and other jurisdictions, it reasoned that, in the ordinary sense, a “claim for damages” (which the policies did not define) is “a demand or request for monetary relief by or on behalf of an identifiable claimant.” According to the court, the letter in question did not meet this definition because it did not identify any claimants “except in the vaguest terms” or request monetary relief on any claimant’s behalf, but rather communicated only a threat of future litigation. As a result, the letter was not a claim made before the policy periods at issue.
POLLUTION EXCLUSION
Wesco Ins. Co. v. Brad Ingram Constr., 2024 U.S. App. LEXIS 1488 (9th Cir. Jan. 23, 2024)
A divided Ninth Circuit panel, applying California law, holds that a pollution exclusion* in a CGL policy does not preclude a duty to defend an underlying suit alleging physical injury from exposure to “clouds of toxic dust” deposited in the environment by a wildfire and released during clean up efforts. Citing MacKinnon v. Truck Ins. Exch., 73 P.3d 1205 (Cal. 2003), the majority explained that determining whether a “pollution event” (i.e., “environmental pollution”) resulting in excluded injury has occurred involves consideration of “the character of the injurious substance” and whether the exposure resulted from a “mechanism specified in the policy.” It concluded that a potential for coverage (and, therefore, a defense obligation) existed because, although wildfire debris may be considered a “pollutant” in certain circumstances, the mechanism alleged in the underlying complaint – “expos[ure] . . . to clouds of toxic dust during the loading and unloading of [the underlying plaintiff’s] truck” – did not clearly constitute an “event commonly thought of as pollution.”
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White and Williams LLP
Maritime Law: An Albatross for Contractors Navigating Marine Construction
January 03, 2022 —
Cindy Matherne Muller - ConsensusDocs“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1
Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions.
What is admiralty jurisdiction?
The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus.
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Cindy Matherne Muller, Jones Walker LLPMs. Muller may be contacted at
cmuller@joneswalker.com
#5 CDJ Topic: David Belasco v. Gary Loren Wells et al. (2015) B254525
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFChapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Jon A. Turigliatto, and
David A. Napper analyzed the above mentioned Belasco case, in which “the Second District Court of Appeal made clear that settlement agreements containing waviers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld.” Glucksman, et al. explained that “the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.”
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In another article on the subject,
Edward A. Jaeger, Jr. and
William L. Doerler of
White and Williams LLP concluded, “The Court of Appeal’s holding establishes that, despite the prohibition against the release of unknown claims set forth in section 1524 and the protections provided to homeowners by the Right to Repair Act, California homeowners can, in fact, release or waive claims against homebuilders for future, latent construction defects. To release or waive such claims, the language of any settlement agreement should be unequivocal.”
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