Party Loses Additional Insured Argument by Improper Pleading
September 20, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe Archdiocese failed to plead breach of contract against the County for failure to name the Archdiocese as an additional insured under the liability policy. Pachella v. Archdiocese of Philadelphia, 2017 Pa. Commw. Unpub. LEXIS 595 (Pa. Commw. Ct. Aug. 14, 2017).
Richard and Pachella filed a complaint against the Archdiocese, alleging that Mrs. Pachella was injured when she tripped and fell on the sidewalk outside of St. Patrick's Parish. At the time, the County was leasing St. Patrick's premises for use as an election polling place. The Archdiocese filed a third party complaint alleging negligence and breach of contract claims under a Lease Agreement between St. Patrick's and the County.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Wood Smith Henning & Berman LLP Expands into Georgia
November 03, 2016 —
Beverley BevenFlorez – CDJ StaffWood Smith Henning & Berman LLP (WSHB) has opened a new regional office in Atlanta, Georgia. Richard E. Zelonka, Jr., will be the Managing Partner. With over a decade of trial experience, Mr. Zelonka has handled complex litigation in both state and federal courts throughout the Southeastern United States.
“I am thrilled to be joining Wood Smith Henning & Berman. WSHB’s sterling reputation, coupled with its national footprint, is especially attractive. That, coupled with the Firm’s passionate dedication to their clients, made this move a very easy choice for me,” said Mr. Zelonka. “I could not be more excited to lead WSHB’s new Georgia office.”
The Firm’s Atlanta office is located at 1170 Peachtree Street NE, Suite 1200, Atlanta, Georgia 30309. The main phone number is (404) 885-5700. The fax number is (404) 506-9108.
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Duty to Defend Negligent Misrepresentation Claim
April 15, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Kansas Court of Appeals determined that the insurer must defend claims of negligent misrepresentation against its insured. Central Power Sys. & Servs. v. Universal Underwriters Ins. Co., 2014 Kan. App. LEXIS 9 (Kan. Ct. App. Feb. 21, 2014).
Central Power contracted to furnish Eagle Well with 10 oil-rig engines and 10 oil-rig transmissions. Eagle Well alleged that Central Power informed them that the engines and transmissions would be operational without any additional components. As is turned out, the engines could not operate without a wiring harness. Eagle Well had to hire a third party to make wiring harnesses that would meet their needs and to install the wiring harnesses.
Eagle Wells sued Central Power, alleging damages in the form of lost profits for the time it took to make the engines independently operational. Further, damages were incurred due to money needed for the costs of purchasing the wiring harnesses from the third party and attaching the harnesses to the engines. Claims asserted against Central Power included breach of contract, negligence and negligent misrepresentation.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Firm Leadership – New Co-Chairs for the Construction Law Practice Group
July 02, 2024 —
Haight Brown & Bonesteel LLPPartners Yvette Davis and Beth Obra-White have been named co-chairs for the firm’s Construction Law Practice Group. Yvette, Beth and other diverse leaders within the firm play an integral role in the firm’s Diversity, Equity & Inclusion initiatives.
Congratulations to Yvette & Beth for their new roles as practice group leaders!
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Haight Brown & Bonesteel LLP
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Meet D1's Neutrals Series: BILL FRANCZEK
August 14, 2023 —
Jessica Knox - The Dispute ResolverCompany: Woods Rogers Vandeventer Black PLC
Office Location: Norfolk, VA
Email: Bill.Franczek@wrvblaw.com
Website: https://wrvblaw.com/attorney_/william-e-franczek/
Law School: Syracuse University Law – JD, 1982, Magna Cum Laude, Order of the Coif
Types of ADR services offered: Arbitration, Dispute Resolution Boards and Panels, Mediation and Neutral Evaluations
Affiliated ADR organizations: American Arbitration Association (AAA); International Institute for Conflict Prevention and Resolution (CPR); London Court of International Arbitration (LCIA); International Court of Arbitration (ICC)
Geographic area served: Nationwide
Q: Describe the path you took to becoming an ADR neutral.
A: I have an undergraduate degree in Civil Engineering and a Professional Engineering License in NY and VA. So, when I became a lawyer, I applied for membership in the AAA, and was accepted as a construction neutral in 1987. I now practice construction law and serve as an ADR Neutral in matters across the country and internationally.
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Jessica Knox, Stinson LLPMs. Knox may be contacted at
jessica.knox@stinson.com
U.S. Supreme Court Halts Enforcement of the OSHA Vaccine or Test Mandate
January 17, 2022 —
Stephen E. Irving, Kevin J. O’Connor, Aaron C. Schlesinger & Lauren Rayner Davis - Peckar & AbramsonThe United States Supreme Court today stayed enforcement of the OSHA emergency temporary standard (ETS) requiring employers with 100 or more employees to require employees either be “fully vaccinated” against COVID-19 or submit to weekly testing. The ruling immediately stops enforcement of the rule which had gone into effect on January 10, 2022.
Today’s order raises significant doubt as to whether the ETS requirement will ever take effect in its current form. A 6 to 3 majority of the Supreme Court justices issued the profound statement that the parties opposed to the rule “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” The Court went on to state that the OSH Act does not authorize the agency to “set . . . broad public health measures,” such as the found in the current emergency standard.
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Stephen E. Irving, Peckar & Abramson,
Kevin J. O’Connor, Peckar & Abramson,
Aaron C. Schlesinger, Peckar & Abramson and
Lauren Rayner Davis, Peckar & Abramson
Mr. Irving may be contacted at sirving@pecklaw.com
Mr. O'Connor may be contacted at koconnor@pecklaw.com
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Ms. Davis may be contacted at ldavis@pecklaw.com
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Court Rules on a Long List of Motions in Illinois National Insurance Co v Nordic PCL
May 10, 2012 —
CDJ STAFFThe case Illinois National Insurance Co. v Nordic PCL, et al. “involves a dispute about whether insurance benefits are available to a general contractor who built structures that allegedly have construction defects. Plaintiffs Illinois National Insurance Company (‘Illinois National’) and National Union Fire Insurance Company of Pittsburgh, PA (‘National Union’) (collectively, the ‘Insurers’), commenced this action for declaratory relief against Defendant Nordic PCL Construction, Inc., f/k/a Nordic Construction, Ltd. ("Nordic"), on August 23, 2011.”
The court was asked to rule on a long list of motions: “Counterclaim Defendants’ Request for Judicial Notice in Support of Their (1) Motion to Dismiss the Counterclaim and (2) Motion to Strike Portions of the Counterclaim, ECF No. 16 (‘Request for Judicial Notice’); Counterclaim Defendants’ Motion to Dismiss Counterclaim Filed October 24, 2011, ECF No. 14 (‘Motion to Dismiss Counterclaim’); Counterclaim Defendants’ Motion to Strike Portions of the Counterclaim Filed October 24, 2011, ECF No. 15 (‘Motion to Strike’); Third-Party Defendant Marsh USA, Inc.’s Motion to Dismiss or, in the Alternative, Stay Proceedings in Favor of Pending State Action, ECF No. 33 (‘Marsh’s Motion To Dismiss Or Stay’); Defendant and Third-Party Plaintiff Nordic PCL Construction, Inc., f/k/a Nordic Construction Ltd.’s Substantive Joinder to Third-Party Defendant Marsh USA Inc.’s Motion to Dismiss or, in the Alternative, Stay Proceedings in Favor of Pending State Action, ECF No. 36 (‘Nordic’s Joinder’); and Third-Party Defendant Marsh USA, Inc.’s Motion for Judgment on the Pleadings on Counts V and VI of Defendant/Third-Party Plaintiff Nordic PCL Construction, Inc.’s Third-Party Complaint, ECF No. 29 (‘Marsh’s Motion for Judgment on the Pleadings’).”
In result, the court reached the following decisions: “The court GRANTS IN RELEVANT PART the Insurers’ Request for Judicial Notice to the extent it covers matters relevant to these motions; GRANTS IN PART the Insurers’ Motion to Dismiss Counterclaim, but gives Nordic leave to amend the Counterclaim in certain respects; DENIES the Insurers’ Motion to Strike; DENIES Marsh’s Motion To Dismiss Or Stay and Nordic’s Joinder; and GRANTS Marsh’s Motion for Judgment on the Pleadings.”
The court provides a bit of background on the case: “This action arises out of alleged construction defects involving two projects on which Nordic acted as the general contractor. Nordic is a defendant in a pending state court action with respect to one of the projects and says it spent more than $400,000 on repairs with respect to the other project. Nordic tendered the defense of the pending state court action to the Insurers and sought reimbursement of the cost of repairs already performed. The Insurers responded by filing this action to determine their rights under the insurance policies issued to Nordic.”
Furthermore, the court presented a brief procedural history: “The Insurers commenced this declaratory action in this court on August 23, 2011. The Complaint asserts two claims, one seeking a declaration that the Insurers have no duty to provide a defense or indemnification regarding the Safeway Action, the other seeking such a declaration regarding the Moanalua Claims. Along with its Answer, Nordic filed a Counterclaim against the Insurers. The Counterclaim asserts breach of contract, breach of the covenant of good faith and fair dealing, misrepresentations and omissions of material fact, and bad faith, and seeks declaratory relief against the Insurers.”
The procedural history continues: “Nordic also filed a Third-Party Complaint against Marsh, the broker that had procured the Policies from the Insurers for Nordic. Nordic alleges that it reasonably believed that the Policies would provide completed operations insurance coverage for the types of construction defects alleged in the Safeway Action and Moanalua Claims. The Third-Party Complaint asserts breach of contract, negligence, promissory estoppel, breach of fiduciary duties, implied indemnity, and contribution and equitable subrogation.”
In conclusion, “The court GRANTS IN RELEVANT PART the Insurers’ Request for Judicial Notice. With regard to the Insurers’ Motion to Dismiss Counterclaim, the court GRANTS the motion as to Count I (breach of contract), Count II (duty of good faith and fair dealing), Count III (fraudulent and negligent misrepresentation), the portion of Count IV (bad faith) premised on fraud, and Count IV (declaratory relief). The court DENIES the motion as to Count IV (bad faith) that is not premised on fraud. Except with respect to the "occurrence" issue, which the court disposes of here on the merits, and Count V, which concerns only a form of relief, Nordic is given leave to amend its Counterclaim within three weeks of the date of this order. The court DENIES the Insurers’ Motion to Strike, DENIES Marsh’s Motion to Dismiss or Stay and Nordic’s Joinder, and GRANTS Marsh’s Motion for Judgment on the Pleadings with respect to Counts V and VI of the Third-Party Complaint.”
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Clean Water Act Cases: Of Irrigation and Navigability
January 06, 2020 —
Anthony B. Cavender - Gravel2GavelThe federal courts have recently decided two significant Clean Water Act (CWA) cases: State of Georgia, et al. v. Wheeler, where the US District Court for the Southern District of Georgia held that the 2015 rulemaking proceeding of EPA and the U.S. Army Corps of Engineers redefining the term “Waters of the United States” in the CWA violated the Act as well as the Administrative Procedure Act; and the Ninth Circuit’s decision in Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, where the appeals court ruled that the lower court erroneously interpreted a CWA NPDES permitting exception involving agricultural return flows.
An Absence of Navigability: State of Georgia, et al. v. Wheeler
Decided on August 21, 2019, the district court, one of the few courts to grapple with the rule’s compliance with the CWA and the Administrative Procedure Act (APA), held that the agencies’ redefinition of the terms “Interstate Waters,” “Tributaries” and “Adjacent Waters” violated the CWA by reading “navigability” out of the new definitions, or by failing to adhere to the Supreme Court’s rulings in the 2005 case of Rapanos v. United States, in particular Justice Kennedy’s concurrence regarding the application of the “significant nexus” in case-by-case adjudications as to whether a particular body of water was covered by the Act. Moreover, some provisions of the rule conflicted with the APA because they were not a logical outgrowth of the rules proposed by the agencies in 2014, and on which they solicited comments, and other determinations were not supported by a reasonable explanation. In addition, without a clear statement from Congress that it supported the rule’s effect of increasing the nature and extent of enhanced federal jurisdiction over waters subject to the CWA, the court was loathe to approve the rule. Accordingly, the rule was remanded to the agencies for additional review consistent with this decision.
This decision is of particular importance as it may well be the first case to subject this new EPA rule—the linchpin of much of EPA’s regulation under the CWA—to extended review. (Other courts have only been asked to enjoin the rule, which involves a different type of review.)
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
