Late Filing Contractor Barred from Involving Subcontractors in Construction Defect Claim
March 01, 2012 —
CDJ STAFFThe Colorado Court of Appeals looked at that state’s Construction Defect Action Reform Act in determining if a general contractor could add subcontractors as third-party defendants to a construction defect lawsuit. Shaw Construction, LLC was the general contraction of the Roslyn Court condominium complex, and was sued by the homeowners’ association in a construction defect case. United Builder Services was the drywall subcontractor on the project. MB Roofing had installed roofs, gutters, and downspouts. The certificate of occupancy for the last building was issued on March 10, 2004. The project architect certified completion of all known remaining architectural items in June, 2004.
The HOA filed a claim against the developers of the property on January, 21, 2009. A week later, the HOA amended its complaint to add Shaw, the general contractor. Shaw did not file its answer and third-party complaint until March 29, 2010, sending its notice of claim under the CDARA on March 30.
The subcontractors claimed that the six-year statute of limitations had ended twenty days prior. Shaw claimed that the statute of limitations ran until six years after the architect’s certification, or that the HOA’s suit had tolled all claims.
The trial court granted summary judgment to the subcontractors, determining that “substantial completion occurs ‘when an improvement to real property achieves a degree of completion at which the owner can conveniently utilize the improvement of the purpose it was intended.’”
The appeals court noted that “Shaw correctly points out that the CDARA does not define ‘substantial completion.’” The court argued that Shaw’s interpretation went against the history and intent of the measure. “Historically, a construction professional who received a complaint responded by ‘cross-nam[ing] or add[ing] everybody and anybody who had a part to play in the construction chain.’” The court concluded that the intent of the act was to prevent unnamed subcontractors from being tolled.
The court further rejected Shaw’s reliance on the date of the architect’s certification as the time of “substantial completion,” instead agreeing with the trial court that “the architect’s letter on which Shaw relies certified total completion.”
The appeals court upheld the trial court’s determination that the statute of limitation began to run no later than March 10, 2004 and that Shaw’s complaint of March 29, 2010 was therefore barred. The summary judgment was upheld.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
Unpredictable Power Surges Threaten US Grid — And Your Home
April 08, 2024 —
Naureen S Malik - BloombergPaul LeBlanc was barefoot when he stepped outside that morning.
He was taking the trash out when he saw the red glow of flames engulfing a nearby home. A former firefighter, LeBlanc grabbed his shoes before racing across the street. He smashed a window, then rushed inside. The only person believed to be home was a teenage boy who had already escaped, luckily with just minor burns. Alarms blared “fire” loudly, again and again, blasting from homes through the area.
“I’ve been in buildings without protection before — I just wanted to make sure no one was stuck in there,” said LeBlanc, who spent more than three decades as a firefighter before retiring.
The damage to the Alonge family’s four-bedroom home built in the early 1800s was so bad they haven’t been able to return since the blaze in June. The source of the conflagration in Waltham, Massachusetts, came from a facility about 2 miles west of the home. An electric substation, which had been dealing with a rodent infestation, had a sudden, unstable surge in voltage.
Read the court decisionRead the full story...Reprinted courtesy of
Naureen S Malik, Bloomberg
Providence Partner Monica R. Nelson Helps Union Carbide Secure Defense Verdict in 1st Rhode Island Asbestos Trial in Nearly 40 Years
December 31, 2024 —
Lewis Brisbois NewsroomProvidence, R.I. (November 22, 2024) - On November 21, 2024, a Providence County jury returned a unanimous defense verdict for Union Carbide Corporation after a nine-day trial presided over by Associate Justice Richard A. Licht. Tim McGowan of Kelley Jasons McGowan Spinelli Hanna & Reber LLP, Eric Cook of Willcox Savage, and Monica R. Nelson of Lewis Brisbois Bisgaard & Smith LLP represented Union Carbide at trial. Elliott Davis of Shook Hardy & Bacon was Union Carbide’s appellate counsel.
The plaintiffs’ lawyers, Vincent L. Greene IV, Nathan D. Finch, and Ashley Hornstein of Motley Rice LLC, represented the family of Mrs. Bonnie Bonito in the first asbestos matter to go to trial in Rhode Island in close to 40 years and requested nearly $25 million in compensatory damages for the death of Mrs. Bonito from her alleged exposure to Union Carbide’s asbestos, among many other asbestos-containing products, through the work clothes of her husband. The plaintiffs’ proffered theory of liability against Union Carbide Corporation is known as a “take-home” exposure claim.
Read the court decisionRead the full story...Reprinted courtesy of
Lewis Brisbois
Australians Back U.S. Renewables While Opportunities at Home Ebb
March 16, 2020 —
Natalia Kniazhevich & Matthew Burgess - BloombergSome of Australia’s biggest funds are pouring money into U.S. clean-energy projects as they butt up against a shortage of green opportunities at home.
AustralianSuper, the country’s largest pension fund, recently joined Queensland Investment Corporation in a $1 billion funding round for Generate, a San Francisco-based green-finance company. And Construction and Building Unions Superannuation, another pension giant, made its first U.S. clean-power investments last year.
The investments come as the wildfires that charred an area about the size of New York State have put increasing pressure on funds to do more to fight global warming. The problem, investors say, is the Australian government isn’t promoting clean-energy development, leaving the nation without enough sizable projects to back.
“At this point the platforms of scale don’t exist in Australia,” said Nik Kemp, head of infrastructure at AustralianSuper. “The size of the U.S. market makes for a much larger market and much better long-term growth opportunities.”
Read the court decisionRead the full story...Reprinted courtesy of
Natalia Kniazhevich & Matthew Burgess, Bloomberg
Vertical vs. Horizontal Exhaustion – California Supreme Court Issues Ruling Favorable to Policyholders
May 11, 2020 —
Alan Packer & James Hultz - Newmeyer DillionFor years, when faced with damage or injury spanning several policy periods, excess general liability insurers have argued that all potentially applicable underlying policies must be exhausted before the excess drops down to provide coverage (“horizontal exhaustion”). Insureds, on the other hand, insist that they are entitled to immediately access an excess policy for any given policy year, if that year’s underlying policy has exhausted (“vertical exhaustion”). Vertical exhaustion not only enables insureds to directly tap into the excess insurance for which they paid substantial premiums, but also enables the insured to moderate risk given that different lower level policies might (1) be needed for other claims, (2) have larger self-insured retentions, or (3) have other less favorable coverage provisions. Allowing an insured to proceed via vertical exhaustion would also eliminate the heavy administrative and logistical burden that could result from having to pursue and exhaust all underlying coverage on multi-year claims.
In Montrose Chemical Corp. v. Superior Court, 2020 WL 1671560 (April 6, 2020), the California Supreme Court has come down in favor of policyholders and vertical exhaustion. The Montrose case involved contamination that allegedly occurred between 1947 and 1982 and different liability insurance towers (comprised of primary and excess layers) for each year. The insured, Montrose, maintained a tower of insurance coverage, year by year, and faced claims asserting damage that spanned several decades. Montrose sought coverage from excess insurers under a vertical exhaustion approach. Not surprisingly, Montrose’s excess insurers insisted that horizontal exclusion was required and that Montrose was required to exhausted all other policies with lower attachment points in every single involved policy period. The California Supreme Court ruled in Montrose’s favor, holding that the insured may insist upon full coverage from an excess insurer once the layer directly below it has exhausted. The Court reasoned that the burden of spreading the loss among insurers is one that is appropriately borne by insurers, not insureds.
Reprinted courtesy of
Alan H. Packer, Newmeyer Dillion and
James S. Hultz, Newmeyer Dillion
Mr. Packer may be contacted at alan.packer@ndlf.com
Mr. Hultz may be contacted at james.hultz@ndlf.com
Read the court decisionRead the full story...Reprinted courtesy of
Power Point Presentation on Nautilus v. Lexington Case
July 23, 2014 —
Tred R. Eyerly – Insurance Law HawaiiHere is our power point from today's presentation to the Hawaii State Bar Association's Litigation and Insurance Coverage Litigation sections. We discussed "other insurance" clauses as addressed by the Hawaii Supreme Court in Nautilus Ins. Co. v. Lexington Ins. Co., 132 Haw. 283, 321 P.3d 634 (2014).
Read the full story and view the Power Point presentation... Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Emotional Distress Damages Not Distinct from “Annoyance and Discomfort” Damages in Case Arising from 2007 California Wildfires
November 21, 2017 —
Kirsten Lee Price & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPOriginally published by CDJ on February 16, 2017
In Hensley v. San Diego Gas & Elec. Co., (No. D070259, filed 1/31/17), the California Court of Appeal for the Fourth Appellate District held that emotional distress damages are available on claims for trespass and nuisance as part of “annoyance and discomfort” damages.
In Hensley, plaintiffs sustained fire damage to their home and property during the 2007 California wildfires. The Hensleys were forced to evacuate as the fires advanced. Although their home was not completely destroyed, it sustained significant damage and they were not able to return home permanently for nearly two months. Thereafter, the Hensleys filed suit against San Diego Gas and Electric Company (“SDG&E”) asserting causes of action for trespass and nuisance, among others. Mr. Hensley, who had suffered from Crohn’s disease since 1991, further claimed that as a result of the stress from the fire, he experienced a substantial increase in his symptoms and his treating physician opined that “beyond a measure of reasonable medical certainty... the stress created by the 2007 San Diego fires caused an increase of [Mr. Hensley’s] disease activity, necessitating frequent visits, numerous therapies, and at least two surgeries since the incident.” SDGE moved, in limine, to exclude evidence of Mr. Hensley’s asserted emotional distress damages arguing he was not legally entitled to recover them under theories of trespass and nuisance. The trial court agreed and excluded all evidence of such damages.
Reprinted courtesy of
Kirsten Lee Price, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker, Haight Brown & Bonesteel LLP
Ms. Price may be contacted at kprice@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Court Makes an Unsettling Inference to Find that the Statute of Limitations Bars Claims Arising from a 1997 Northridge Earthquake Settlement
April 15, 2015 —
David W. Evans and Stephen J. Squillario – Haight Brown & Bonesteel LLPIn Britton v. Girardi (No. B249232 – Filed 4/1/2015), the Second Appellate District upheld the trial court’s dismissal due to the statute of limitations based on an inference it drew from a letter attached to the complaint, while reaffirming its prior application of the limitations period in Probate Code section 16460 for fraud claims in the related case of Prakashpalan v. Engstrom, Lipscomb & Lack (2/27/2014) 223 Cal.App.4th 1105.
In Britton, just as in Prakashpalan, the plaintiffs sued the attorneys who had represented them in connection with claims against their insurer arising out of the Northridge earthquake. In 1997, the attorneys had settled that litigation for more than $100 million. The plaintiffs allege that the attorneys breached their fiduciary duty by (1) failing to provide an accounting for the settlement, (2) failing to obtain their informed consent to the settlement, and (3) concealing their misappropriation of the settlement funds. They claim that they did not discover this wrongdoing until nearly fifteen years later, in 2012, when the Prakashpalans contacted them about their settlement. Significantly, the plaintiffs attached as an exhibit to the complaint a page of the November 3, 1997 letter to the Prakashpalans (rather than the plaintiffs), which stated that a retired judge who presided over the settlement had determined the allocations and the attorneys could not distribute the proceeds until the plaintiffs signed the “Master Settlement Agreement” by which the plaintiffs agreed to its terms and to give up all claims against the insurer.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com
Mr. Squillario may be contacted at ssquillario@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
