Colorado Senate Bill 15-177: This Year’s Attempt at Reasonable Construction Defect Reform
February 18, 2015 —
Zach McLeroy – Colorado Construction LitigationOn February 10, 2015, Senators Scheffer and Ulibarri introduced Senate Bill 15-177, which is sponsored in the House by Representatives DelGrosso and Singer. SB 15-177 amends the prerequisites, found in the Colorado Common Interest Ownership Act (“CCIOA”), for an association to file a construction defect action. The bill has been assigned to the Senate Committee on Business, Labor, and Technology but not yet scheduled for hearing.
The major points of the bill include: 1) enforcement of a mediation or arbitration provision contained in the original governing documents of a common interest community, even if subsequently amended or removed; 2) the addition of a requirement that mediation take place before a construction defect action can be filed; 3) heightened requirements that an association board provide advanced notice to all unit owners, together with a disclosure of projected costs, duration, and financial impact of the construction defect claim; 4) the addition of a requirement that the board obtain the written consent of a majority of the owners of units, and; 5) a requirement that prior to the purchase and sale of a property in a common interest community, the purchaser receive notice that binding arbitration may be required for certain disputes.
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Zach McLeroy, Higgins, Hopkins, McLain & Roswell, LLCMr. McLeroy may be contacted at
mcleroy@hhmrlaw.com
Georgia Supreme Court Says Construction Defects Can Be an “Occurrence”
July 31, 2013 —
CDJ STAFFThe Georgia Supreme Court has ruled in an insurance coverage case, concluding that under a commercial general liability policy, defective construction can count as an occurrence. William Wildman and Kent Collier discuss the case in a Legal Alert published by their firm, Sutherland Asbill & Brennan LLP. The court decisions came about after the U.S. Court of Appeals certified the question to the Georgia Supreme Court.
Wildman and Collier note that the Georgia Supreme Court “after analyzing recent Georgia decisions regarding CGL insurance and construction defects, as well as noting cases from other jurisdictions, held that ‘an “occurrence” as the term is used in a standard CGL policy, does not require damage to the property or work of someone other than the insured.” The court also “held that an ‘occurrence’ must arise from liability for a causeof action that is consistent with the concept that the ‘occurrence’ is ‘accidental.’”
However, they note that the court also concluded that “certain ‘business risk’ coverage exclusions common in many standard CGL policies may apply to exclude coverage for defective construction even though such defective construction constitutes an ‘occurrence.’”
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Drone Operation in a Construction Zone
August 17, 2020 —
Mark R. Berry & Freddy X. Muñoz - Peckar & AbramsonThe potential uses of unmanned aircraft systems (UAS) in the construction industry continue to expand as new technologies enter the market and construction companies realize UAS can perform unique tasks at tremendous cost savings. The full technological capabilities of UAS are, however, limited by law for public safety reasons. UAS share airspace with traditional passenger, military and cargo aircraft, and are potential hazards for humans below. The risk of potential catastrophic collisions has led to a careful approach to the adoption of this technology.
All U.S. airspace is exclusively regulated by the Federal Aviation Administration (FAA), and therefore, most drone regulation originates from this agency. Many states and localities have also enacted additional limits on UAS operations, and many of these nonfederal regulations are presently on unsure footing after a federal court ruling in Singer v. Newton invalidated a local regulation that conflicted with FAA regulations.
What is clear is that all commercial UAS operations must comply with FAA regulations. Any drone operation conducted by any private company, even through use of an employee’s personal drone, would constitute commercial operation subject to regulation.
Reprinted courtesy of
Mark R. Berry, Peckar & Abramson and
Freddy X. Muñoz, Peckar & Abramson
Mr. Berry may be contacted at mberry@pecklaw.com
Mr. Muñoz may be contacted at fmunoz@pecklaw.com
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Court Slams the Privette Door on Independent Contractor’s Bodily Injury Claim
May 06, 2019 —
Brett G. Moore, Michael C. Parme, Lindsey N. Ursua & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Johnson v. The Raytheon Company, Inc., Case No. B281411 (2019) WL 1090217, plaintiff Laurence Johnson (Johnson) was a maintenance engineer employed by an independent contractor that provided control room staff to defendant Raytheon Company, Inc. (“Raytheon”). Johnson was monitoring the computers in the control room when he received low water level alarms pertaining to the water cooling towers. Johnson went to the cooling tower wall in order to look over the wall and verify the water level. Johnson saw the upper half of an extension ladder leaning against the cooling tower’s wall. The ladder had a warning sign which said, “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Despite these warnings, Johnson used the ladder. As he was climbing the ladder it slid out causing him to fall and suffer injuries.
Johnson sued Raytheon, the hirer of the independent contractor, arguing the ladder, among other things, was unsafe and lead to Johnson’s injuries. Johnson believed that Raytheon’s course of conduct of leaving a platform ladder (as opposed to the extension ladder) at the wall constituted an implied agreement to always have one present, on which the independent contractor’s employees relied. Johnson further argued that Raytheon was negligent in providing a dangerous extension ladder, as opposed to a platform ladder, at the wall on the night of the accident.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Brett G. Moore,
Michael C. Parme,
Lindsey N. Ursua and
Lawrence S. Zucker II
Mr. Moore may be contacted at bmoore@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
Ms. Lindsey may be contacted at lursua@hbblaw.com
Mr. Lawrence may be contacted at lzucker@hbblaw.com
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Insurer Not Entitled to Summary Judgment on Construction Defect, Bad Faith Claims
October 07, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court denied the insurer's motion for summary judgment seeking to establish there was no coverage for construction defect claims and for bad faith. Country Mut. Ins. Co. v. AAA Constr. LLC, 2019 U.S. Dist. LEXIS 115935 (W.D. Okla. July 12, 2019).
Jeffrey and Tammy Shaver entered two contracts with AAA Construction for the construction of a garage and of a barn on their property. After construction was completed, the Shavers sued AAA Construction for building the garage over two high-pressure gas pipelines and the utility easements associated with them. They alleged AAA Construction was negligent for constructing over a working utility line. AAA Construction's insurer, Country Mutual Insurance Company (CMIC) denied coverage because the alleged faulty workmanship of AAA Construction did not constitute an "occurrence" under the policy.
CMIC sued AAA Construction for a declaratory judgment that it had no duty to defend or indemnify. CMIC moved for summary judgment.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Determination That Title Insurer Did Not Act in Bad Faith Vacated and Remanded
March 30, 2016 —
Tred R. Eyerly – Insurance Law HawaiiIn an important decision regarding bad faith and the application of the work product doctrine to work performed by an insurer's in-house counsel, the Hawaii Supreme Court vacated the Intermediate Court of Appeals's upholding the trial court's award of summary judgment to a title insurer on the issue of bad faith. Anastasi v. Fid. Nat'l Title Ins. Co., 2016 Haw. LEXIS 30 (Feb. 4. 2016).
Llyod Anastasi loaned Alajos Nagy $2.4 million. The loan was secured by a mortgage on property. After Nagy executed the $2.4 million mortgage, a warranty deed was signed by Paul Stickney and purported to deed the property from Stickney to Nagy in exchange for $10 in consideration. Fidelity issued Anastasi a title insurance policy on the property in the amount of $2.4 million. The policy promised to provide a defense where a third party asserted a claims adverse to the interest of the insured.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
2020s Most Read Construction Law Articles
January 25, 2021 —
ConsensusDocs2020 was . . . well . . . well it was memorable. Among many other things, construction was recognized as essential and ConsensusDocs published industry firsts in addressing prefabricated construction and lean for design-build, as well as 8 comprehensively revised performance and payment bonds. We also saw unprecedented readership of our construction law newsletter. As we celebrate the end of 2020 and wish you a happy new year, we continue a new a tradition of recognizing the below most read construction law articles of the year.
The ConsensusDocs Team.
5.
Level 10 Construction v. Sea World LLC: Can Force Majeure Save Sea World?
By:
Jamey B. Collidge Associate,
Troutman Pepper.
4.
The Designer’s Pre-bid Standard Of Care In A Design-Build Project
By:
Joshua A. Morehouse Associate,
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New Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive Tortfeasors
March 28, 2022 —
Thomas Regan & Karley Kamaris - Lewis BrisboisNewark, N.J. (March 21, 2022) - Late in 2021, the Supreme Court of New Jersey addressed the issue of allocating damages in personal injury cases in which the plaintiff asserts claims against successive tortfeasors, such as medical malpractice in the treatment of a slip and fall injury caused by negligence. The decision in Glassman v. Friedel, 249 N.J. 199 (2021) overruled and replaced the long-held principles established in Ciluffo v. Middlesex General Hospital, 146 N.J. Super. 478 (App. Div. 1977) regarding successive liability. Ciluffo held that, when an initial tortfeasor settles before trial, the non-settling defendants in a successive tort were entitled to a pro tanto credit for the settlement amount against any damages assessed against them. The Superior Court of New Jersey Appellate Division in 2020, and the Supreme Court of New Jersey last year, abandoned that framework for one more consistent with statutory contribution law in the Garden State.
In Glassman v. Friedel, 465 N.J. Super. 436 (App. Div. 2020), the Appellate Division held that the application of the principles in Ciluffo in a negligence case has no support in modern jurisprudence, thus limiting its application. It rejected the holding in Ciluffo in light of the state legislature’s enactment of the Comparative Negligence Act, which requires juries to apportion damages between successive events and apportion fault among the parties responsible for each event. The appellate division went on to hold that a non-settling, successive tortfeasor may present proofs at trial as to the negligence of the settling tortfeasor, and that the burden of proof as to the initial tortfeasor’s negligence being the proximate cause of the second causative event indeed lies on the non-settling defendant. In sum, the appellate division in Glassman established steps the jury can use to determine successive tortfeasor liability, but largely treated it as one, attenuated incident.
Reprinted courtesy of
Thomas Regan, Lewis Brisbois and
Karley Kamaris, Lewis Brisbois
Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com
Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com
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