A Look Back at the Ollies
May 03, 2018 —
Beverley BevenFlorez-CDJ STAFFThe Jerrold S. Oliver Award of Excellence, also known as the “Ollie” award, is presented to “an individual who is outstanding or has contributed to the betterment of the construction defect community.” West Coast Casualty asks members of the construction defect community to nominate those they feel are deserving of the award, and then members vote for one of four nominees. The award is presented at the West Coast Casualty Seminar. Those recognized receive a plaque and a donation in the winner’s name to Habitat for Humanity as well as a local California and Nevada charity.
Jerrold S. Oliver was a “’founding father’ in the alternate resolution process in construction defect claims and litigation. His loyalty and commitment to this community were beyond mere words as he was a true believer in the process of resolution.”
Past Award Winners:
1996 - Awarded to Ross R. Hart, Esq. (Mediator - American Arbitration Assoc.)
1997 - Awarded to Merv Thompson, Esq. (Mediator in private practice)
1999 - Awarded to Tom Craigo, (Adjuster - C.N.A. Insurance Company)
2000 - Awarded to Kristi Cole, (Adjuster - Safeco Insurance Company)
2001 - Awarded to Karen Rice, (Claims Manager - ACE / USA)
2002 - Awarded to Stephen Henning, Esq. (Wood, Smith, Henning and Berman, LLP)
2003 - Awarded to Ross Feinberg, Esq. (Feldscott, Lee, Feinberg, Grant and Mayfield LLP)
2004 - Awarded to Janet Shipes (Adjuster – C.N.A. Insurance Company)
2005 - Awarded to Edward Martinet (Expert – MC Consultants)
2006 - Awarded to Hon. Victoria V. Chaney (Judge – Los Angeles Superior Court)
2007 - Awarded to Bruce Edwards, Esq. (Mediator) JAMS
2008 - Awarded to Gerald Kurland, Esq. (Mediator) JAMS
2009 - Awarded to Keith Koeller, Esq. (Koeller, Nebecker, Carlson and Haluck, LLP)
2010 - Awarded to Terry Wolcott – (Construction Defect Manager – Travelers Ins. Co.)
2011 - Awarded to George Calkins, Esq. (Mediator) JAMS
2012 - Awarded to Joyia Greenfield, Esq. (Lorber, Greenfield and Polito, LLP)
2013 - Awarded to Margee Luper (Claim Manager – XL Insurance Group)
2014 - Awarded to Matt Liedle, Esq. (Liedle, Lounsbery, Larson & Lidl, LLP)
2015 - Awarded to Robert A. Bellagamba, Esq. (Special Master/Mediator, Castle & Dekker)
2016 - Awarded to Lisa Unger, (Senior Claims Examiner, Global Management Liability Markel)
2017 - Awarded to Caryn Siebert, (Vice President, Claims, Knight Insurance Group)
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Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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Jean Nouvel’s NYC ‘Vision Machine’ Sued Over Construction Defects
December 10, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Telegraph reported that the developers of famed architect Jean Nouvel’s futuristic building are being sued over alleged window pane defects. The building contains a customized, “curving curtain wall of different sized panes of colorless glass—each set in a unique angle and torque,” according to Nouvel’s firm. However, some residents reported “wind whistling through the panes of glass, and water seeping in.” Furthermore, “[t]he draft is so severe in some places that hydronic heating pipes have frozen and burst, according to court papers.”
Attorney for the developer told the Telegraph, “Our clients will be vigorously defending this matter and we believe we will prevail in the case.”
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Congress Addresses Homebuilding Credit Crunch
May 20, 2011 —
CDJ STAFFThe National Association of Home Builders (NAHB) reports that Representatives Gary Miller (CA), Brad Miller (NC) and twenty-nine cosponsors have put forth a bill with bipartisan support to “address the severe credit crunch for acquisition, development, and construction (AD&C) financing.” They report in addition to more than 1.4 million construction workers who have been “idled since 2006,” the housing slump has cost 3 million jobs and $145 million in wages.
NAHB reports that they worked closely with lawmakers on the bill. The association had members meet with legislators both in D.C. and in their home districts. They state that HR 1755 would help homebuilders “find the credit they need to move forward with new or existing projects.”
The bill would allow lenders to use the value upon completion when assessing loan collateral and ban the use of foreclosed or distressed sale properties in assessing values of projects. The would bill would also lessen restrictions by banking regulators, which the lead sponsors said “have hindered federal and state chartered banks and thrifts’ ability to make and maintain loans to qualified small home builders that have viable projects.”
The NAHB is urging members of Congress to cosponsor the bill and is urging the Senate to introduce a companion bill.
Read the full story…
Read HR 1755
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New York Bars Developers from Selling Condos due to CD Fraud Case
October 15, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to GlobeSt, New York “Attorney General Eric T. Schneiderman has announced a settlement agreement that bars developers Joseph Scarpinito and Shiraz Sanjana—and five affiliated entities they own and operate—from offering or selling securities, including condo and coop sales, in or from New York State.”
The settlement is in “result of an investigation by the Attorney General’s real estate finance bureau into allegations of fraud by the developers of the Mirada, an eight-story Harlem condominium.” GlobeSt also stated that the agreement “provides for binding arbitration with the condo purchasers for alleged construction defects, and requires the developers to pay $500,000 in penalties and fines to New York State.”
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Read Before You Sign: Claim Waivers in Project Documents
July 06, 2020 —
William E. Underwood - ConsensusDocsNot all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims.
Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable.
So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future.
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William E. Underwood, Jones Walker LLPMr. Underwood may be contacted at
wunderwood@joneswalker.com
Idaho Construction Executive Found Guilty of Fraud and Tax Evasion
October 01, 2013 —
CDJ STAFFA former president of the Associated General Contractors in Idaho has been found guilty of attempting to defraud the U.S. Government. Elaine Martin filed false income taxes, allowing her to participate in a program that helped economically and socially disadvantaged businesses. Ms. Martin has convicted on both the fraud tax evasion charges.
Ms. Martin’s business partner, Darrell Swigert, has also been convicted. He was found guilty of obstruction of justice. Mr. Swigert helped Ms. Martin conceal the extent of her income.
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White and Williams Earns National "Best Law Firm" Rankings from US News
November 02, 2017 —
White and Williams LLPWhite and Williams has achieved national recognition from US News and World Report as a "Best Law Firm" in the practice areas of Insurance Law and Media Law. Our Philadelphia, Boston, and New York offices have also been recognized in their respective metropolitan regions in several practice areas. Firms included in the “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal experience.
National Tier 1
Insurance Law
National Tier 3
Media Law
Metropolitan Tier 1
Boston
Insurance Law
Product Liability Litigation - Defendants
Philadelphia
Personal Injury Litigation - Defendants
Real Estate Law
Tax Law
Metropolitan Tier 2
Philadelphia
Appellate Practice
Commercial Litigation
Construction Law
First Amendment Law
Insurance Law
Legal Malpractice Law- Defendants
Media Law
Trust & Estates Law
Metropolitan Tier 3
New York City
Bankruptcy and Creditor Debtor Rights/ Insolvency and Reorganization Law
Philadelphia
Patent Law
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