Badly Constructed Masonry Walls Not an Occurrence in Arkansas Law
May 10, 2012 —
CDJ STAFFThe US District Court for Maryland has granted a summary judgment in the case Konover Construction Corp. v. ATC Associates to Massachusetts Bay Insurance Company and denied a request for dismissal from ACT. Konover (KBE) was contracted by Wal-Mart to build a Wal-Mart store and a Sam’s Club in Port Covington, Maryland. Superus, Inc. was hired by KBE to build the masonry walls. Superus purchased a policy from Massachusetts Bay Insurance which named KBE as an additional insured. Wal-Mart hired ATC Associates to independently test and inspect the concrete structural steel, and masonry.
After the building was in use, a large crack appeared which was attributed a latent construction defect. Other cracks were discovered. Upon investigation, it was discovered that there were “voids or foam in the concrete block surrounding the reinforcing steel that should have been filled with grout,” and in some cases, “reinforcing steel was missing or not installed in accordance with the specifications.” KBE paid for the repair and remediation and Wal-Mart assigned all rights and interests against ATC to KBE.
KBE filed suit against ATC. ATC called for dismissal on the grounds that Wal-Mart had no claims as the problems had been remediated. Wal-Mart then provided KBE with additional agreements to give them enforceable rights against ATC and Superus. KBE filed a fourteen claims against ATC, Superus, and Massachusetts Bay. In the current case, Massachusetts Bay sought summary judgment and ATC sought dismissal of all claims against it.
Massachusetts Bay claims that they need not indemnify Superus, as “there is no evidence adequate to establish that Superus’ defective work caused any collateral and/or resulting damage that was not subject to an Impaired Property exclusion, and that, in any event, no damage occurred during the policy period.”
As Wal-Mart is headquarted in Arkansas, certain contracts were under Arkansas law. Under the Arkansas courts, “defective workmanship, standing alone and resulting in damages only to the work product itself, is not an ‘occurrence.’” The court determined that collateral or resultant damage would be covered. The court found that “it is clear under Arkansas law, and the parties appear to agree, that Massachusetts Bay is not obligated to indemnify KBE for any repairs to the masonry walls themselves, including any cracks or gaps in the walls.” The court also found that “there is no evidence adequate to prove that any allegedly resultant property damage was caused by Superus’ faulty construction of the walls.” The court also noted that “if the building code violation and structural integrity problem were ‘property damage,’ insurance coverage would be barred by the Impaired Property Exclusion.” Based on these findings, the court concluded that Massachusetts Bay is entitled to summary judgment.
While the court dismissed the case against Massachusetts Bay, the court declined ATC’s motion to dismiss. The court noted that ACT’s alleged negligence in conducting inspections “created only a risk of economic loss for KBE.” Although hired by Wal-Mart, ATC “transmitted its daily testing and inspection reports of the Wal-Mart and Sam’s Club projects directly to KBE.” The court found that “KBE has made a plausible claim.”
ATC also claimed that KBE contributed to the negligence due to the negligence of its subcontractor. The court concluded that it was plausible that “ATC will not be able to carry its burden of proving KBE was contributorily negligent.” The court was less sanguine about KBE’s fraud claim, but though it “may not now appear likely to have merit, it is above the ‘plausibility’ line.”
In conclusion, KBE may not continue its case against Massachusetts Bay. However, the judge allowed the other proceedings to continue.
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Luxury Villa Fraudsters Jailed for Madeira Potato Field Scam
September 25, 2018 —
Franz Wild - BloombergFour men and a woman convicted of conning people to invest in a fraudulent luxury villa construction scheme on a potato field in the Portuguese island of Madeira were sentenced to as long as 5 1/2 years in a U.K. jail.
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Franz Wild, Bloomberg
Recent Decision Further Jeopardizes Availability of Additional Insured Coverage in New York
July 08, 2024 —
Nina Catanzaro & Bethany L. Barrese - Saxe Doernberger & Vita, P.C.Additional insured endorsements often provide “blanket” coverage to persons or organizations as required by a written contract. However, the wording of the “blanket” language is critically important, as the inclusion of certain phrases in an additional insured endorsement can result in a denial of coverage for the upstream party.
For example, risk transfer issues can arise when an additional insured endorsement provides coverage to parties “when you [the named insured] and such person or organization [the additional insured] have agreed in writing in a contract or agreement.” Courts in New York (among other jurisdictions) have interpreted this phrase to require contractual privity – that is, only the entity that contracted directly with the named insured is entitled to additional insured coverage, even if the named insured agreed in that contract to provide additional insured coverage for others as well. The same goes for the phrase “any person or organization with whom you [the named insured] have agreed to add as an additional insured by written contract.”
Reprinted courtesy of
Nina Catanzaro, Saxe Doernberger & Vita, P.C. and
Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Catanzaro may be contacted at NCatanzaro@sdvlaw.com
Ms. Barrese may be contacted at BBarrese@sdvlaw.com
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A Brief Primer on Perfecting Your Mechanics Lien When the Property Owner Files Bankruptcy
January 22, 2024 —
William L. Porter - Porter Law GroupOverview of the Mechanics Lien Law
This is a brief description of steps to be taken when the Owner of property on which you have recorded a mechanics lien files bankruptcy.
The California mechanics lien is a powerful tool for contractors, subcontractors and materials suppliers to secure payment of unpaid construction debts. A contractor, subcontractor or materials supplier is allowed to record a mechanics lien on real property, based on the value added to the property by the claimant during the construction process.
The recorded mechanics lien provides the claimant with legal right to force the sale of the improved real property and thereby obtain the funds necessary to pay the delinquent debt. Under the usual procedure, the first step is the recording of the mechanics lien with County Recorder’s office in the County where the property is located. A lawsuit to foreclose on the lien must then be filed in the County Superior Court of that County, within ninety (90) days after the mechanics lien is recorded. The goal of the lawsuit is to obtain a judgment for foreclosure on the mechanics lien in order to force a sale of the property. The net proceeds of the sale will be used to pay the unpaid construction debt secured by the recorded mechanics lien, assuming sale proceeds exceed the amount of senior liens and encumbrances.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
DE Confirms Robust D&O Protection Despite Company Demise
February 18, 2015 —
James Yoder, Michael Onufrak and Siobhan Cole – White and Williams LLPOn Feb. 5, 2015, the United States Bankruptcy Court for the District of Delaware, per Judge Brendan L. Shannon, entered proposed findings of fact and conclusions of law in favor of the former president and CEO of Ultimate Escapes Inc., James M. Tousignant, and its chairman, Richard Keith, after determining that Tousignant’s actions in negotiating and executing a controversial asset purchase agreement were protected by the business judgment rule, despite the demise of the company a short time later. The failure of a business strategy, in and of itself, does not create liability on the part of the former directors and officers of a bankrupt company.
Background
Ultimate Escapes was a luxury destination club that provided its members with access to high-end vacation residences around the world. Unfortunately, Ultimate Escapes’ business suffered greatly from the economic downturn that began in 2008, and on Sept. 20, 2010, Ultimate Escapes filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code.
Reprinted courtesy of White and Williams LLP attorneys
James Yoder,
Michael Onufrak and
Siobhan Cole
Mr. Yoder may be contacted at yoderj@whiteandwilliams.com
Mr. Onufrak may be contacted at onufrakm@whiteandwilliams.com
Ms. Cole may be contacted at coles@whiteandwilliams.com
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New Jersey Law Firm Announces $4 Million Settlement from Construction Site Accident
November 11, 2024 —
Greenberg Minasian, LLCWEST ORANGE, N.J., Nov. 07, 2024 (GLOBE NEWSWIRE) -- Greenberg Minasian, LLC, a personal injury law firm located in Essex County, New Jersey, has announced a $4 million settlement stemming from a roofer who suffered serious injuries after a construction site fall. Veteran trial attorney Mitchell Goldstein represented the injured client, who suffered multiple fractures and injuries, permanently affecting his ability to work.
In 2018, Robert Smith, who was 61 at the time, fell backward through or over a temporary guard rail at the American Dream Mall in East Rutherford, NJ. The 30-foot fall caused him to suffer serious injuries to his pubis, sacrum, clavicle, and humerus, leading to multiple surgeries and a hip replacement.
On behalf of his client, Mr. Goldstein brought suit against the mall developer and construction company, successfully arguing that the temporary guardrails were improperly constructed and insufficiently elevated according to Occupational Safety and Health Administration (OSHA) guidelines. The case was settled just two days before trial, marking a significant victory for the plaintiff and his family.
Despite the defense's attempt to argue that Mr. Smith was responsible for his fall, Goldstein was able to refute their claims, asserting that the temporary guardrail's improper construction directly led to the accident.
About Greenberg Minasian LLC
Based in West Orange, Greenberg Minasian represents clients who have been seriously injured as the result of negligence by others. The firm handles cases anywhere in New Jersey including West Orange, Jersey City, Newark, Essex County and all surrounding areas. The firm continues to achieve the highest awards for its clients and families.
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Title II under ADA Applicable to Public Rights-of-Way, Parks and Other Recreation Areas
June 29, 2017 —
Richard E. Morton - Haight Brown & Bonesteel LLPPlaintiff Ivana Kirola, who suffers from cerebral palsy, sued the City and County of San Francisco, in a class action contending certain public areas, including rights-of-way, pools, parks and other recreation areas, did not meet the mandate of Title II of the American With Disabilities Act (Kirola v. City and County of San Francisco, 9th Circuit Court of Appeals, No. 14-17521, 2017 DJDAR 5982). Title II provides that no qualified individual with a disability “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Title II’s implementing regulations mandate that each facility constructed after January 26, 1992 be “readily accessible to and usable by individuals with disabilities.” And, for each facility “altered after January 26, 1992,” the altered portion must, “to the maximum extent feasible,” be likewise accessible. The Federal Architectural and Transportation Barriers Compliance Board creates nonbinding Americans With Disabilities Act Accessibility Guidelines (ADAAG) to ensure compliance with Title II, and that the Department of Justice (DOJ) adopt its own binding regulations, consistent with the ADAAG standards. Here, the District Court interpreted ADAAG standards as not applying to public rights-of-way, parks, and playground facilities. The District Court concluded that none of Kirola’s experts were reliable in their interpretation of the standards and how the standards applied to the public rights-of-way, etc. Conversely, the District Court concluded that all of the city’s experts were reliable. It thus disregarded and discarded every ADAAG violation identified by Kirola’s experts, accepting only the small number of violations identified by the city’s experts.
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Richard E. Morton, Haight Brown & Bonesteel LLPMr. Morton may be contacted at
rmorton@hbblaw.com
World's Longest Suspension Bridge Takes Shape in Turkey
November 29, 2021 —
Aileen Cho - Engineering News-RecordIt was a long-standing dream—not only of Ersin Arıoğlu, but of a nation. Could a suspension bridge someday cross the Dardanelles Strait in Turkey and provide another link between Europe and Asia? “To build a highway suspension bridge over the Çanakkale Strait has been on the agenda of the Turkish Ministry of Public Works for the last 20 years,” Arıoğlu, co-founder of contractor Yapi Merkezi, wrote in a technical paper. That was in 1994.
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Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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