Prevent Costly Curb Box Damage Due on New Construction Projects
May 11, 2020 —
Bob Welker - Construction ExecutiveFor new construction projects in areas with acidic soils, keeping curb boxes in good working order is critical to avoid compromised water service, angry customers, and costly repair and replacement.
Traditionally, a curb box is composed of a metal tube that connects the cast iron base to a cast iron lid/cap. It is necessary for water line repairs and shut off in case of flooding. Typically, they are buried six to eight feet below ground, beneath the frost line. Curb boxes are found on every water line that connects a building to a city water main.
One major challenge is that many areas across the United States—including the East Coast, South, upper Midwest and Pacific Northwest—have acidic soil that rapidly corrodes cast iron infrastructure, including curb boxes. Soil with a pH of six or less is considered acidic.
Reprinted courtesy of
Bob Welker, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Colorado Senate Committee Approves Construction Defect Bill
March 19, 2015 —
Jesse Howard Witt – Acerbic WittLate last night, the Colorado Senate Business, Labor, and Technology Committee voted to refer
SB 15-177 to the committee of the whole. The vote followed nearly seven hours of testimony from those in favor of construction defect legislation and those opposed.
As I have
previously discussed, the bill sponsors have argued that their measure will encourage the construction of more affordable housing by giving builders de facto immunity for claims of defective workmanship and property damage in common interest communities. The bill achieves this by establishing difficult voting and disclosure requirements for homeowner associations and requiring costly, private arbitration of any disputes that can overcome the procedural hurdles. During the recent hearing, proponents echoed these statements and testified that insulating homebuilders from claims would lower home prices and rents by increasing the supply of cheaply-built condominiums.
Opponents questioned whether the bill contained any provisions that would actually help the affordable housing market. They also argued that it was improper for the legislature to shift the cost of fixing construction defects onto those homeowners who can least afford to pay for necessary repairs.
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Jesse Howard Witt, The Witt Law FirmMr. Witt welcomes comments at www.acerbicwitt.com
Social Engineering Scams Are On the Rise – Do I Have Insurance Coverage for That?
June 01, 2020 —
Jeffrey Dennis & Heather Whitehead - Newmeyer DillionCyber attackers all know that the majority of organizations are currently working from home due to the ongoing COVID-19 (commonly referred to as the Coronavirus) pandemic. And, as would be expected, social engineering scams are on the rise. Nonetheless, there may be limitations in your cyber liability insurance policy for these types of claims. It is advisable to take the initiative to review such insurance policies in detail for coverage considerations prior to the occurrence of any cyber incident. And, of course, protect your business from attacks by engaging in precautious cyber safety efforts.
What Is Social Engineering?
Social engineering refers to various means to manipulate individuals in the online environment so that they divulge sensitive, personal information, such as banking information, which may include account numbers and passwords. This can also take the form of receiving a request to transfer funds to what the victim believes is another employee, trusted financial information or other party with whom the person has a business relationship with. Unfortunately, however, those funds ultimately are received by the engineer of the cyber attack.
Reprinted courtesy of
Jeffrey M. Dennis, Newmeyer Dillion and
Heather Whitehead, Newmeyer Dillion
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com
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California Supreme Court Raises the Bar on Dangerous Conditions on Public Property Claims
February 16, 2016 —
Roger Hughes – California Construction Law BlogEarlier we wrote about the affirmative defense of “design immunity” which can be used by public entities to shield themselves from personal injury claims dangerous conditions on public property. Under the design immunity doctrine a public entity can avoid liability for dangerous conditions on public property if it can show:
1.A causal relationship between the plan or design and the accident;
2.Discretionary approval of the plan or design prior to construction; and
3.Substantial evidence supporting the reasonableness of the plan or design.
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Roger Hughes, Wendel Rosen Black & Dean LLPMr. Hughes may be contacted at
rhughes@wendel.com
Congratulations to Karen Baytosh and August Hotchkin on Their Recognition as 2021 Nevada Legal Elites!
June 07, 2021 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is proud to announce Reno Partners Karen Baytosh and August Hotchkin have been recognized in the Nevada Business Magazine as Nevada Legal Elites, Northern Nevada Top Attorneys. To view the Silver State’s Top Attorneys, please click
here.
The Nevada Legal Elite list includes the top 4 percent of attorneys in the state and is broken down by location.
Reprinted courtesy of
Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
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Policy Lanuage Expressly Prohibits Replacement of Undamaged Material to Match Damaged Material
March 09, 2020 —
Tred R. Eyerly - Insurance Law HawaiiConstruing an all-risk Businessowners Policy, the court found that the policy language did not required replacement of undamaged material match materials that were damaged. Pleasure Creek Townhomes Homeowners' Ass'n v. Am. Family Ins. Co., 2019 Minn. App. Unpub. LEXIS 1095 (Minn. Ct. App. Nov. 25, 2019).
The policy covered the Association's 14 townhome buildings. In June 2017, a hail storm damaged siding on all 14 buildings. An appraisal panel included the cost to replace the undamaged, faded siding in its appraisal award so that it would match the new siding. American Family refused to pay this component - which was appraised at about $211,382 - of the award.
An exclusion in the policy provided,
We will not pay to repair or replace undamaged material due to mismatch between undamaged material and new material used to repair or replace damaged material.
We do not cover the loss in value to an property due to mismatch between undamaged material and new material used to repair or replace damaged material.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Revisiting the CMO; Are We Overusing the Mediation Privilege?
November 19, 2021 —
Michael T. Kennedy Jr. - BERDING|WEILOne of the most common features in construction defect cases is the Case Management Order (“CMO”) or Pre-Trial Order (“PTO”) to govern pre-trial and mediation procedures. CMOs and PTOs arose in the days when the HOA would sue the developer, the developer would cross-complaint against the subcontractors, and each defendant and cross-defendant might have 2 or 3 insurance carriers defending, each of whom may retain their own panel counsel. In a large case there may have been 20 parties and 30 defense attorneys. In order to avoid the cost and chaos of all of those parties propounding their own discovery, and in order to prepare these cases for mediation well before trial and the associated costs, it became standard practice in California to include provisions in the CMO to stay all discovery until just before trial.
Plaintiff would provide a Defect List or Statement of Claims and the parties experts would meet and exchange information as part of the mediation process. All of the information exchanged would be subject to mediation privileges and inadmissible at trial. The benefit of this practice was that the parties (and carriers) would avoid the cost of formal discovery and allow the experts to discuss compromised scopes of repair to help settle the case while being able to take a more aggressive position at trial. The disadvantages are that each party uses its privileged initial expert reports to stake out negotiating positions more extreme than what they would put on at trial, with each side losing credibility with the other in assessing the value of the case, and for those cases that did not settle, the parties would be faced with having to do all of the depositions and discovery in the last 60 days, or delaying trial, or both.
Over the last 10 or 15 years with the advent of wrap-up insurance policies, these cases now usually involve 2 sides instead of 20; only the HOA and the developer remain in the case. However, old habits die hard, and the standard CMO/PTO hasn’t evolved with other aspects of these cases. The practice of staying all discovery and exchanging information only under mediation privileges remains, and as a result insurance carriers don’t receive the admissible evidence that they need to determine coverage and evaluate the real settlement value of the case until just before trial. On the plaintiff’s side, if most of the experts’ work is done under the guise of mediation privilege, those costs may not be recoverable. Outside the context of mediation, costs incurred in investigation of the defects and preparation of a scope and cost of repair are recoverable.
This reflexive claim of mediation privilege over all information exchanged during the case has outlived its usefulness. The CMO can and should remain to regulate formal discovery and to help the parties prepare for mediation, but regulated discovery should be opened early in the case. In California, the SB800 process already provides for the exchange of admissible information during the prelitigation right to repair process. Continuing that exchange during the early litigation allows the parties to continue to prepare for mediation, but waiving privileges had advantages for both sides.
A senior claims manager once commented that Plaintiff’s mediation-protected Statement of Claims “might as well be a stack of blank paper” for all of its usefulness to the carrier in assessing the value of the case. If the Plaintiff and it expects are free to inflate their claims early in the case without having to worry about every supporting those claims in front of a jury, they have little or no credibility. And if those claims are inflated or not “real,” not only can the carrier not properly assess the verdict range and settlement value of the case, but it may also be hampered in making a coverage determination. Simply put, if the exchange of real information through formal discovery is put off until just before trial, the defense cannot be ready to settle until then. Worse, the cost of defense goes through the roof in the last 60 days before trial as the lawyers’ scramble to take all of the depositions and to all of the other work that had been stayed for the previous year or two.
The Plaintiff is faced with the same question of credibility of defense experts where they are free to take a “low ball” negotiating position without having to support that position through cross-examination in front of the jury. Just as the carrier behind the defense attorney needs the Plaintiff’s “real” evidence to assess the claim, so does the HIOA Board of Directors behind the Plaintiff’s counsel. Additionally, in California as in most states, the cost of experts’ preparation for mediation may not be recoverable as costs or damages, but investigation of the defects and preparation of the scope and cost of repair is recoverable.
The biggest challenge is resolving construction defect claims for both sides is how to resolve these cases quickly while keeping costs under control. Practices that worked 20 years ago are no longer applicable with changes in insurance, and in light of some of the bad habits that arise when all of the information exchanged was confidential.
The CMO/PTO process can still be useful to regulate the discovery and mediation schedule given the volume of documents and other information to be exchanged but exchanging “real” information in a form that may come into evidence at trial should foster earlier resolution, resulting in cost savings for the parties. The CMO can provide for the parties to respond to controlled discovery, and the exchange of expert reports and potentially depositions can and should be done earlier in the case, well before the eve of trial. The parties can then assess the true value of each case and prepare for more substantive mediation without waiting until they are on the figurative courthouse steps.
Construction defect cases have a pattern, and it is tempting for busy lawyers to just put each case through the same algorithms that they have used for years. However, these cases have evolved and those of us handling these cases need to reevaluate our approach to these cases. Taking aggressive negotiating positions that no longer have any credibility with the other side has become counterproductive, and the exchange of real evidence earlier in the case would better serve our clients and carriers.
BERDING|WEIL is the largest and most experienced construction defect and common interest development law firm in California. For more information, please visit https://www.berding-weil.com
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Michael T. Kennedy Jr., BERDING|WEILMr. Kennedy may be contacted at
mkennedy@berdingweil.com
Sales of Existing Homes in U.S. Fall to Lowest Since 2012
March 26, 2014 —
Shobhana Chandra – BloombergPurchases (ETSLTOTL) of previously owned homes in the U.S. declined in February to the lowest level since July 2012, a sign the industry may be slow to recover.
Contract closings on existing properties fell 0.4 percent to a 4.6 million annual rate, matching the median projection in a Bloomberg survey, figures from the National Association of Realtors showed today in Washington. Prices rose 9.1 percent from a year earlier, the group said.
The slowdown in sales since the middle of last year reflects a pickup in borrowing costs, declining affordability and, more recently, bad weather. Faster job growth that generates bigger income gains are needed to spur demand and allow housing to contribute more to the economy.
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Shobhana Chandra, BloombergMs. Chandra may be contacted at
schandra1@bloomberg.net
