SunTrust Will Pay $968 Million to Resolve Mortgage Probes
June 18, 2014 —
Tom Schoenberg – BloombergSunTrust Banks Inc. (STI) agreed to pay $968 million to resolve federal and state claims that a unit misrepresented the quality of mortgages the bank originated and deceived homeowners on loans it serviced.
The agreement covers loans SunTrust Mortgage made from January 2006 through March 2012 that were backed by the Federal Housing Administration even though they didn’t meet agency requirements, the Justice Department said in a statement today. Atlanta-based SunTrust disclosed the agreement in an October regulatory filing and has already accounted for the payment.
“SunTrust’s conduct is a prime example of the widespread underwriting failures that helped bring about the financial crisis,” Attorney General Eric Holder said in a statement. “We will continue to hold accountable financial institutions that, in the pursuit of their own financial interests, misuse public funds and cause harm to hardworking Americans.”
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Tom Schoenberg, BloombergMr. Schoenberg may be contacted at
tschoenberg@bloomberg.net
Watchdog Opens Cartel Probe Into Eight British Homebuilders
April 02, 2024 —
Damian Shepherd & Katharine Gemmell - BloombergBritain’s top antitrust enforcer has opened an investigation into eight housebuilders to probe potential information sharing, sharpening scrutiny of a sector that’s failing to deliver enough affordable housing to meet demand.
The Competition and Markets Authority has opened a cartel investigation into eight developers including Barratt Developments Plc, the Berkeley Group, Persimmon Plc and Vistry Group Plc. The investigation centers on concerns the companies may have exchanged competitively sensitive information, which could be influencing the build-out of sites and the prices of new homes. An initial review will take place until December.
CMA Chief Executive Officer Sarah Cardell told Bloomberg Television the watchdog had seen potential evidence of companies exchanging information relating to pricing, sales rates, and incentives offered to new homebuyers. The watchdog has the power to fine firms a maximum penalty of as much as 10% of annual revenue and disqualify directors following cartel investigations.
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Damian Shepherd, Bloomberg and
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Texas Federal Court Upholds Professional Services Exclusion to Preclude Duty to Defend
March 16, 2020 —
Jeremy S. Macklin - Traub Lieberman Insurance Law BlogIn Project Surveillance, Inc. v. The Travelers Indemnity Company, No. 4:19-CV-03324, 2020 WL 292247 (S.D. Tex. Jan. 21, 2020), a Texas federal court held that a professional services exclusion in a commercial general liability policy precluded Travelers’ duty to defend its insured.
The underlying lawsuit was a wrongful death action brought by the family of a worker killed on a construction site. Project Surveillance was present at the construction site “to provide safety supervision or other services.” The underlying lawsuit alleged that Project Surveillance negligently failed to inspect or adequately inspect the project and failed to warn or adequately warn the decedent of a dangerous condition. The underlying lawsuit also alleged that Project Surveillance was negligent in failing to stop work.
At the time of the incident, Project Surveillance had commercial general liability insurance through Travelers and professional liability insurance through RLI. RLI agreed to defend Project Surveillance in the underlying lawsuit. Travelers, however, denied owing a duty to defend or indemnify based on an exclusion for “bodily injury” arising out of the rendering or failure to render any “professional service.” The Traveler policy defined the term “professional services” to mean any service requiring specialized skill or training, including “failure to prepare [. . .] any warning,” “supervision,” “inspection,” “control,” “surveying activity or service,” “job site safety,” “construction administration,” and “monitoring [. . .] necessary to perform and of [those] services.”
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Jeremy S. Macklin, Traub LiebermanMr. Macklin may be contacted at
jmacklin@tlsslaw.com
Stormy Skies Ahead? Important News Regarding a Hard Construction Insurance Market
August 13, 2019 —
Jason M. Adams - Gibbs GidenWord out of the construction insurance brokerage community is that the construction insurance industry has entered a hard market, seemingly overnight. Property (i.e. builder’s risk), liability and wrap-up markets are all reacting unfavorably, resulting in higher premiums and decreased availability of coverage options.
The prospect of a hard market has been looming for some time given massive weather driven property losses and historically low rates (among other factors). It appears the time is upon us.
Key takeaways for construction professionals are:
- Expect insurance premiums to go up, potentially significantly, at renewal time and/or when seeking a new project specific program (e.g., an OCIP, CCIP, etc.).
- Expect that the available coverage will get worse. Carriers may be unable to offer once standard coverage enhancements and/or may add new exclusions.
- If quotes have been offered consider locking them in now, before the underwriters are forced to increase the rates/restrict coverage, or pull the quotes entirely.
- With respect to wrap-ups and other project specific programs, consider requesting extensions now if the project is expected to go beyond the current policy term.
- As always, the risk management team (lawyer, broker, risk manager) should work together to carefully review contracts and coverage. This will become even more important if the carriers start to introduce new exclusions as a result of the hard market.
Hard markets come and go. The tough times are when true construction insurance professionals separate themselves from the pack and become the key to weathering the storm.
Jason M. Adams, Esq. is Senior Counsel at Gibbs Giden representing construction professionals (owners/developers, contractors, architects, etc.) in the areas of Construction Law, Insurance Law and Risk Management, Common Interest Community Law (HOA) and Business/Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms. Mr. Adams can be reached at jadams@gibbsgiden.com. Read the court decisionRead the full story...Reprinted courtesy of
Quick Note: Can a Party Disclaim Liability in their Contract to Fraud?
April 11, 2022 —
David Adelstein - Florida Construction Legal UpdatesIt is possible for a party to contractually disclaim or otherwise foreclose liability to a fraud claim. However, let’s be honest. It can be done, but rarely is and would require very specific language to EXPLICITLY disclaim or foreclose such liability to a fraud claim.
A recent case, discussed
here, exemplifies this point where as-is language in a purchase-and-sale agreement was NOT specific to contractually foreclose or disclaim liability to a fraud claim.
For a party to contractually waive a fraud claim, there needs to be an express waiver of liability for fraud that might have been made and that any fraudulent misrepresentation, if such fraud was committed, was disclaimed and would not destroy the validity of the parties’ contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Construction Costs Up
February 21, 2013 —
CDJ STAFFThe cost of putting a building up just got a little higher. The General Contractors of America have tracked an 0.7 percent increase in the cost of building materials between December and January, leading to a 1.3 percent increase through 2012. Ken Simonson, the organization’s chief economist, said that “contractors had to contend with huge leaps in prices for gypsum, wallboard and lumber, as well as significant increases in the cost of insulation and architectural coatings such as paint.”
And it isn’t just building materials. Simonson notes that diesel prices are up too, which increases the costs of moving heavy machinery across the site, among other considerations. Don’t expect things to change. “It is clear that costs are rising significantly higher in February,” said Simonson.
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Recovering Unabsorbed Home Office Overhead Due to Delay
May 30, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn the
preceding article, I discussed the use of a retrospective as-built delay analysis in a case before the Civilian Board of Contract Appeals (CBCA). This case also discussed a damages component in certain delay claims known as unabsorbed home office overhead—a challenging damages component to recover because this deals with indirect costs as opposed to direct costs.
Unabsorbed home office overhead is a damages component when the contractor is on standby, but this is NOT as easy as just claiming standby thereby you are automatically entitled to unabsorbed home office overhead. There are requirements that MUST be met.
To obtain an equitable adjustment for unabsorbed home office overhead as compensation for being on standby, [the contractor] must initially show “[1] a government-caused delay of uncertain duration,” that “[2] the delay extended the original time for performance” or precluded the contractor from finishing earlier than scheduled, and that “[3] the contractor [was] on standby and unable to take on other work during the delay period.
CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022) quoting Nicon, Inc. v. U.S., 331 F.3d 878, 883 (Fed. Cir. 2003).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Wyncrest Commons: Commonly Used Progress Payments in Construction Contracts Do Not Render Them Installment Contracts
December 11, 2023 —
Benjamin J. Hochberg - Peckar & Abramson, P.C.In BIL-JIM Construction Company, Inc. v. Wyncrest Commons, LP, 2023 WL 7276637 (Unpublished, decided November 3, 2023), the New Jersey Appellate Division was asked to consider two issues regarding the interpretation and application of a construction contract that utilized the standard form American Institute of Architects owner/contractor agreement (AIA Document A101-2007) (the “AIA Contract”). Specifically, it was asked to consider: 1) whether a modified AIA Contract was an “installment contract,” whereby each progress payment was subject to its own statute of limitations; and 2) whether and when work had been approved in the context of New Jersey’s Municipal Land Use Law. While the decision is presently unpublished, it provides guidance as to how form contracts utilizing the same or similar terms will be treated by New Jersey’s courts and is a reminder that the potential for future claims must be considered during contract negotiations.
Discussion
The primary issue in Wyncrest was whether an AIA Contract was an “installment contract,” and the remaining issues turned on the resolution of this question. Wyncrest, the owner for the project at issue, did not dispute that its contractor, BIL-JIM Construction Company, Inc., had not been fully paid for work that it had performed in connection with a construction project located in Ocean County, New Jersey. Instead, Wyncrest argued that because its AIA Contract with BIL-JIM required that invoices be presented and paid monthly, it constituted an “installment contract.” As such, older payments would be treated as individual transactions and were time barred by the applicable statute of limitations. The trial court agreed with Wyncrest’s characterization of the AIA Contract as an “installment contract,” and found that BIL-JIM’s invoices were each subject to their own statute of limitations. However, the trial court disagreed with Wyncrest’s argument that BIL-JIM’s claim for retainage—which was submitted at the end of its work at the project—was time barred.
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Benjamin J. Hochberg, Peckar & Abramson, P.C.Mr. Hochberg may be contacted at
bhochberg@pecklaw.com
