Building Codes Evolve With High Wind Events
November 14, 2018 —
William L. Coulbourne - Construction ExecutiveDesigns for wind loads have been in building codes for a long time. Prior to the creation of the International Building Code, the three primary legacy codes had wind load provisions but they mostly dealt with wind loads on the building frame and had little load information about the building components or the exterior cladding.
Since Hurricane Andrew in 1992, building codes include more wind design information that comes from disaster investigations and wind engineering research conducted primarily at the university level. In 2000, the legacy building codes were replaced with the International Building Code (IBC). Residential buildings must comply with the International Residential Code (IRC). Both of these building code documents reference the engineering load standard, ASCE 7 Minimum Design Loads and Other Criteria for Buildings and Other Structures. This load standard has also been in existence for a long time; it now is revised every six years and the building codes revised every three years (IBC and IRC) reference ASCE 7 so the provisions in ASCE 7 become part of the building code requirements.
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William L. Coulbourne, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Proposed Law Protecting Tenants Amended: AB 828 Updated
June 08, 2020 —
Rhonda Kreger – Newmeyer DillionOn May 18, 2020, AB 828 was amended and is currently on its second reading in the Senate Rules Committee. This legislation proposes a temporary moratorium on foreclosures and unlawful detainers while Governor Newsom's COVID-19 emergency order is in effect. In addition to the moratorium, AB 828 also required landlords to reduce rent by 25% under certain circumstances. AB 828 was amended to remove the provision that required landlords to reduce rent by 25% for 12 months. The new provision requires landlords to allow tenant to remain in possession, and requires tenants to start paying rent the month following the end of the emergency order. Tenants must timely pay monthly rent plus 10% of any rent due and owing when the emergency order ended.
Under AB 828, a tenant may stipulate to the entry of an order in response to a residential unlawful detainer action filed by the landlord. Upon a hearing, the court determines if the tenant's inability to pay rent is the result of increased expenses or a reduction in income due to COVID-19. The court must also make a determination that there is no material economic hardship for the landlord. Upon making such determinations, the court will issue an order that permits the tenant to remain in possession, and requires tenant to commence rental payments the month following the end of the COVID-19 emergency order. Tenant's payment would include the monthly rent plus 10% of an unpaid rent during the COVID-19 emergency order, but excludes any late charges or other fees or charges. The tenant would be required to make timely payments, and if tenant fails to do so, after a 48 hour notice from landlord, the landlord can file for an immediate writ of possession in favor of the landlord and money judgment for any unpaid balance, court costs and attorneys' fees.
Newmeyer Dillion continues to follow COVID-19 and its impact on your business and our communities. Feel free to reach out to us at NDcovid19response@ndlf.com or visit us at www.newmeyerdillion.com/covid-19-multidisciplinary-task-force/.
Rhonda Kreger is Senior Counsel on Newmeyer Dillion's transactional team at our Newport Beach office. Her practice focuses on all aspects of commercial real estate law, with a particular emphasis on the representation of residential developers, merchant builders and institutional investors. You can reach Rhonda at rhonda.kreger@ndlf.com.
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NJ Supreme Court Declines to Review Decision that Exxon Has No Duty to Indemnify Insurers for Environmental Liability Under Prior Settlement Agreement
November 29, 2021 —
Patricia B. Santelle & Laura Rossi - White and WilliamsOn November 1, 2021, in a single-sentence Order, the Supreme Court of New Jersey denied a request for review of a decision that ExxonMobil Corporation (Exxon) did not have to indemnify certain of its insurers over environmental liabilities as required by a previous settlement agreement. The case, entitled Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history but, in short, the denial of review leaves standing a holding by the intermediate appellate court that the insurers’ “untimely notice actually prejudiced Exxon, violated the no-prejudice rule, and breached the covenant of good faith and fair dealing.” The court declined to consider the question framed by the insurers: whether the importance of enforcing settlement agreements outweighs New Jersey’s entire controversy doctrine.
The matter dated back almost thirty years, when the New Jersey Department of Environmental Protection notified the Appearing London Market Insurers (ALMI) of the potential liability of Cornell-Dublier Electronics (CDE), a former indirect subsidiary of Exxon, for pollution at a site in New Jersey. Coverage litigation followed in New Jersey, which ALMI defended under policies issued to CDE. Exxon was not named in the CDE suit nor were the policies which ALMI issued to Exxon at issue in that case; Exxon instead had its own pollution coverage case pending in New York. In June 2000, Exxon and its insurers, including ALMI, entered into a settlement agreement which (a) required Exxon to indemnify the insurers for any environmental liability claims involving its subsidiaries, and (b) provided for application of New York substantive law and litigation in New York City court for any dispute between the parties under it.
Reprinted courtesy of
Patricia B. Santelle, White and Williams and
Laura Rossi, White and Williams
Ms. Santelle may be contacted at santellep@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com
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Courts Generally Favor the Enforcement of Arbitration Provisions
May 10, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn recent posts (
here and
here) I have discussed arbitration provisions and cases dealing with the enforceability of arbitration provisions.
The case of Lemos v. Sessa, 46 Fla.L.Weekly D701a (Fla. 3d DCA 2021) deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions.
First, courts will and should try to resolve any ambiguity in arbitration provisions in favor of arbitration.
Second, when there is an offending arbitration provision or one that includes language that violates public policy, the trial court “should sever the offending provisions from the arbitration clause so long as such severance does not undermine the parties’ intent.” Lemos, supra. This principle is reinforced when the arbitration provision is in an agreement that contains a severability provision.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
WSHB Secures Victory in Construction Defect Case: Contractor Wins Bench Trial
October 01, 2024 —
Wood Smith Henning & BermanWood Smith Henning & Berman is pleased to announce a significant victory in a bench trial led by trial attorney
Thomas Fama. The case, which had been pending for nearly five years due to pandemic-related delays and unreasonable demands by the plaintiff, concluded with a resounding judgment in favor of the defendant.
"The result of this trial is a testament to our team's unwavering tenacity and strategic focus throughout the entire process," stated WSHB partner Tom Fama, lead counsel in the case. "We kept our eye on the proverbial ball and diligently worked to expose the lack of evidence supporting the plaintiff's claims."
The matter involved allegations of defective installation of a solar energy system, which the plaintiff claimed leaked during inclement weather. Fama and his team successfully demonstrated that the plaintiff's claims lacked substance, highlighting numerous pre-existing conditions on the roof that could have been responsible for the problem.
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Wood Smith Henning & Berman
Reminder: The Devil is in the Mechanic’s Lien Details
February 16, 2017 —
Christopher G. Hill – Construction Law MusingsAs readers of Construction Law Musings are well aware, mechanic’s liens and their picky and at times overly form oriented nature are near and dear to my heart as a construction attorney here in Virginia. I recently had the opportunity to meet this head on in Hanover County, Virginia Circuit Court. I was defending a suit to enforce a mechanic’s lien in the context of a lien that had been released pursuant to a bond deposited with the court under Va. Code 43-71 on behalf of my client, the defendant in that suit.
The case, G.H. Watts Construction, Inc. v. Cornerstone Builders, LLC, involved a memorandum of lien recorded by G. H. Watts without the assistance of an attorney in which the claimant was identified as “G. H. Watts Construction, Inc.” while the signatory on the memorandum of lien and the claimant identified in the notary block were identified as “Gary H. Watts” and “Gary Watts” respectively. Nowhere on the memorandum was Gary Watts’ capacity as it related to the company, nor did it state that Gary Watts was an agent for claimant.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Todd Seelman Recognized as Fellow of Wisconsin Law Foundation
February 15, 2021 —
Todd Seelman - Lewis Brisbois NewsroomDenver Managing Partner Todd R. Seelman has been recognized as a Fellow of the Wisconsin Law Foundation, joining a select group of attorneys who comprise no more than 2.5% of the entire membership of the Wisconsin Bar. Mr. Seelman's membership in the Fellows organization represents that his peers have recognized him for his outstanding professional achievements and devotion to the welfare of his community, state, and country, as well as the advancement of the legal profession.
“I am grateful for this honor and opportunity to become a member of an exceptional group of lawyers," Mr. Seelman said. "I look forward to working to advance the Fellows’ important goals, including promoting justice and improving legal education.
The Fellows organization was created to honor members of the Wisconsin Bar who have achieved significant professional accomplishments and contributed leadership and service to their communities.
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Todd Seelman, Lewis BrisboisMr. Seelman may be contacted at
Todd.Seelman@lewisbrisbois.com
Hawaii Court Looks at Changes to Construction Defect Coverage after Changes in Law
November 06, 2013 —
CDJ STAFFA construction defect case lead at the U.S. District Court for Hawaii involved the insurer’s changed views on what was covered based on court decisions that came after the policy was written. John R. Casciano and Jessica L. Urban of Steptoe & Johnson LLP discuss the case on their firm’s website. They note that in Illinois National Insurance Company v. Nordic PCL Construction, Inc., Nordic built a retail building which soon afterwards had water leaks and property damage, due to alleged defects in the roof construction.
Nordic had purchased comprehensive general liability and umbrella polices, with coverage that included property damage. Mr. Casciano and Ms. Urban note that “at the time of contracting, the Ninth Circuit had predicted that, ‘if the Hawaii Supreme Court examined the matter, it would rule that, for purposes of insurance coverage, construction defects were “not occurrences.”’” After the policy was written, the Hawaii Intermediate Court of Appeals did rule that “construction defect claims do not constitute an ‘occurrence’ under a CGL policy.” On the basis of this, Illinois National determined that they had no duty to defend or indemnify their client.
Nordic made a claim of bad faith, but the court determined that “an insurer that denies coverage based on an open question of law does not act in bad faith, an insurer that actually relies on governing law, even if the insurer only belatedly learns of the law, cannot be said to thereby act in bad faith.”
However, the court denied a summary judgment of Nordic’s claim of negligent misrepresentation, determining that there was “a question of fact as to whether the Policies covered [or were represented as covering] only damage to third parties caused by subcontractors’ defective work.” Finally, the court found that “a reasonable jury could infer that, at the time the Polices were issued, the insurers meant to cover claims arising out of the defective work” of Nordic’s subcontractors.
They conclude that the Nordic decision “recognizes the varying consequences for coverage claims when post-contracting changes to the law may not coincide with the expectations of at least one of the parties at the time of contracting.”
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