Accessibility Considerations – What Your Company Should Be Aware of in 2021
May 03, 2021 —
Heather H. Whitehead - Newmeyer DillionAccessibility claims increased significantly in 2020, with this specific type of ADA-related case increasing by 23% from 2019 to 2020.1 This includes cases filed in federal court and those filed in California state court under the Unruh Act - with a direct reference to violation of the ADA.2
In California alone, a total of 989 cases were filed in 2020, representing almost 30% of all accessibility cases filed in the United States.3 These claims go beyond the traditional complaints related to a website maintained by an organization. While desktop websites dominate the overall number of lawsuit claims nationally, mobile apps continue to get significant attention along with a new trend in video content related claims. These video claims demand that all video have closed captions and audio descriptions.4
The ongoing COVID-19 pandemic has created a surge in the reliance on websites and other platforms to accommodate working from home, online learning, as well as ordering groceries, food or other items online in an effort to stay home and safe. However, along with this substantial increase in demand, many users who rely on accessibility features have found many websites and related mobile applications to be inaccessible for their needs.
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Heather H. Whitehead, Newmeyer DillionMs. Whitehead may be contacted at
heather.whitehead@ndlf.com
Montana Federal District Court Finds for Insurer in Pollution Coverage Dispute
October 24, 2021 —
Melanie A. McDonald - Saxe Doernberger & VitaApplying Louisiana law, a recent federal court decision exemplifies why policyholders should thoroughly read claims-made policies to understand when notice is due to insurers and truthfully complete policy applications. In Admiral Insurance Company v. Dual Trucking, Inc.,1 the Court determined the insurer, Admiral Insurance Company (“AIC”), owed no duty to defend or indemnify Dual Trucking and Transport, LLC (“DTT”), Dual Trucking of Montana, LLC (“DTM”), and Dual Trucking, Inc. (“DTI”) (collectively, the “Dual Entities”) under two Environmental Impairment Liability Policies (“EIL Policies”) and four Contractor Pollution Liability Policies (“CPL Policies”). The Court justified its decision because the Dual Entities: 1) did not give notice during the 2012-2013 EIL Policy period; 2) had discovered or knew of, but did not disclose, potential pollution conditions before the inception of the 2013-2014 EIL Policy and before the expiration of the extended reporting period of the 2012-2013 EIL Policy; 3) failed to provide AIC with notice during the extended reporting period of the 2013-2014 EIL Policy of claims for which the Dual Entities were seeking coverage; and 4) materially misrepresented known facts on the CPL Policy applications.
I. Factual Background.
The Dual Entities were Louisiana-based companies that provided oilfield equipment rental services. In 2011, the Dual Entities leased land in Montana under three leases, collectively referred to as “the Bainville site.” Shortly afterward, the Dual Entities applied for, and AIC issued, an EIL Policy and two CPL Policies with a policy period of October 1, 2012, to October 1, 2013. AIC renewed all three policies for the October 1, 2013, to October 1, 2014, policy period.
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Melanie A. McDonald, Saxe Doernberger & VitaMs. McDonald may be contacted at
MMcDonald@sdvlaw.com
BHA Expands Construction Experts Group
October 28, 2011 —
Bert L. Howe & Associates, Inc. - Corporate OfficesBert L. Howe & Associates, Inc., one of the nation’s leading construction forensics firms is pleased to announce the expansion of the company’s civil and structural engineering capabilities.
JERRY M. MILES, PE - Mr. Miles has been a licensed civil engineer in California since 1987 and has served as the lead civil engineer on many projects in several states. His experience includes contract administration services as the owner’s representative on a variety of projects including mastered planned communities, residential subdivisions, shopping centers and multi-family residential projects. He has also been involved in providing water quality management plans and storm water pollution prevention plans. Mr. Miles has also served on the Town of Apple Valley’s Building Department Dispute Resolution Board.
His more than 26 years of engineering experience includes geotechnical evaluations, structural design of wood-framed, masonry, and concrete tilt-up buildings, small and large subdivision engineering construction/improvements plans, hydrology/hydraulic reports and design, forensic investigation and expert witness testimony. Mr. Miles has qualified as an expert in numerous jurisdictions and Federal court. He has been called upon to provide deposition testimony on more than twenty-five occasions and has successfully testified at arbitration and trial. Click here to view Mr. Miles’ Current CV.
MATTHEW J. STIEFEL, PE - With a background that spans a multitude of design and new construction projects to catastrophic claims analysis, Mr. Stiefel brings a unique set of credentials and experience to the construction experts group at Bert L. Howe & Associates. Mr. Stiefel has more than 13 years’ experience in civil, structural, and geotechnical engineering; providing design and construction consulting services on a variety of projects that include multi-family and single family dwellings, commercial buildings, transportation facilities, industrial facilities, storm drain channels, water and wastewater pipelines. His engineering experience encompasses multiple disciplines of civil engineering including geotechnical design and evaluation, foundation design, structural design of wood-framed buildings, preparation of grading plans and site drainage analysis. He has provided cause and origin analysis for insurance adjusters on many residential and commercial sites related to issues involving moisture intrusion and mold, foundation movement, site drainage, soil movement, wind damage, and other various losses. Click here to view Mr. Stiefel’s Current CV.
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Court Grants Motion to Dismiss Negligence Claim Against Flood Insurer
December 22, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer successfully moved to dismiss the insured's negligence claim and demand for jury trial, leaving only the insured's breach of insurance contract claim under the National Flood Insurance Program (NFIP). La Mirage Homeowners Association Inc. v. Wright National Flood Ins. Co., 2019 U.S. Dist. LEXIS 147667 (S.D. Tex. Aug 29, 2019).
Hurricane Harvey damaged three of insured homeowner's association condominium's buildings. Wright National Flood Insurance Company was the insurer pursuant to the NFIP when the hurricane damaged the insured's property. The insured alleged that Wright breached the policy by underpaying on the flood loss claims and by not initiating the appraisal the insured demanded. The insured sought recovery for negligence, consequential damage, statutory penalties, attorney's fees and pre-and-post judgment interest.
Wright moved to dismiss the extra-contractual claims and to strike the jury demand.
The NFIP's regulations allowed homeowners to purchase policies either directly from FEMA or from private insurers that functioned as Write Your Own (WYO) providers and fiscal agents of the United States. The Fifth Circuit had previously held that state law tort claims arising from claims handling by a WYO were preempted under federal law. The court, therefore, was faced with the issue of whether the insured's claims of negligence, attorney's fees, statutory penalties, and interest were policy-handling claims which were preempted by federal law.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Wisconsin Supreme Court Abandons "Integrated Systems Analysis" for Determining Property Damage
September 12, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Wisconsin Supreme Court departed from its previous mechanism for determining property damage under the "integrated systems analysis" and found the insurers were not entitled to summary judgment as determined by the trial court. 5 Walworth, LLC v. Engerman Contracting, Inc., 2023 Wis. LEXIS 152 (Wis. June 20, 2023).
5 Walworth LLC hired Engerman as general contractor to construct a swimming pool complex. Engerman subcontracted with Downes Swimming Pool Co., Inc. to construct the pool complex. Otto Jacobs supplied Downes with a ready-mixed concrete called shotcrete, commonly used in swimming poll construction.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
County Sovereign Immunity Invokes Change-Order Ordinance
December 20, 2017 —
Lizbeth Dison - AHC Contruction Law BlogThe recent case of Fulton County v. Soco Contracting Company, Inc. addresses two very interesting questions for local government attorneys. First, can a county ordinance bolster a defense of sovereign immunity against a contractor’s claims? Second, can a county waive sovereign immunity by failing to respond to Requests for Admission?
Facts:
County hired Contractor to construct a facility near the airport. The contract provided that change orders must satisfy a county ordinance, which required approval by the Board of Commissioners. But in emergency situations, the County Manager could approve change orders, as long as the contractor executes a proposed modification and the purchasing agent approves it.
The project suffered substantial delays, which Contractor attributed to weather, design delays, delays by the County in providing decisions on changes, and delays in obtaining permits during the federal government’s shutdown. As a result of these issues, Contractor comes County changed the scope of the contract. Contractor asserted claims against County for the delays and the changes to the work. The appellate opinion addresses the change order claims.
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Lizbeth Dison, Autry Hall & Cook, LLP
Traub Lieberman Partner Katie Keller and Associate Steven Hollis Obtain Summary Judgment Based on Plaintiff’s Failure to Comply with Policy Conditions
June 12, 2023 —
Kathryn Keller & Steven A. Hollis - Traub LiebermanTraub Lieberman Partner Katie Keller and Associate Steven Hollis obtained summary judgment on behalf of a major homeowners’ insurer in a breach of contract action in the Circuit Court for the Ninth Judicial Circuit in and for Osceola County, Florida. The underlying claim involved a water loss in the kitchen of the Plaintiff’s property allegedly resulting in substantial damage to the home necessitating renovations throughout the residence. The claim was reported seventeen days after the reported date of loss by Plaintiff’s counsel. The Plaintiff had retained counsel and two vendors before giving notice to the insurer. In addition, the insurer’s field adjuster was not provided the opportunity to inspect the plumbing materials which had been allegedly damaged. Specifically, the bottom panel of the sink kitchen cabinet box had been removed. The insurer retained an engineer, who concluded that the removal of the damaged property hindered the ability of the engineer to determine their conditions prior to removal or whether exposure from waste arm leakage occurred. It was later learned that the damaged plumbing fixtures and the bottom of the cabinets had been thrown out by the contractors, which all happened before the claim was reported to the insurer. The insured also failed to provide a signed, sworn proof of loss within sixty days after the loss.
Reprinted courtesy of
Kathryn Keller, Traub Lieberman and
Steven A. Hollis, Traub Lieberman
Ms. Keller may be contacted at kkeller@tlsslaw.com
Mr. Hollis may be contacted at shollis@tlsslaw.com
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Acceptable Worksite: New City of Seattle Specification Provisions Now In Effect
July 13, 2017 —
Lindsay K. Taft - Ahlers & Cressman PLLCThe City of Seattle’s City Purchasing & Contracting Services recently revised its General Special Provisions for City construction contracts to add new “Acceptable Worksite” language. The City indicates that the purpose of the provisions is “to ensure that City construction worksites are respectful and appropriate, including prohibiting bullying, hazing, and other similar behaviors.” An “Acceptable Worksite” is defined as a worksite “that is appropriate, productive, and safe work for all workers” and “free from behaviors that may impair production, and/or undermine the integrity of the work conditions including but not limited to job performance, safety, productivity, or efficiency of workers.”
Prohibited behaviors under the new specification provisions include persistent offensive conduct and language, hazing, offensive jokes about race, gender, or sexuality, assigning undesirable tasks or unskilled work to trained apprentices and journey-level workers, refusal to hire based on race, gender, or sexuality, and references to or requests for immigration status. The new program also includes monitoring, response, and enforcement of the provisions by City Purchasing and Contracting Services employees. Finally, the language must also be incorporated into all sub-tier contracts on City projects.
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Lindsay K. Taft, Ahlers & Cressman PLLCMs. Taft may be contacted at
ltaft@ac-lawyers.com
