What is a Civil Dispute?
August 07, 2018 —
Bremer Whyte Brown & O’MearaBroadly speaking, all lawsuits can be put into one of two categories: criminal or civil. Criminal cases are brought by the government against a private person and/or organization for committing an act that is considered harmful to society as a whole; whereas civil cases involve private disputes between individuals and/or organizations.
Civil litigation begins when one person or organization claims that another person or organization has failed to carry out a legal duty owed to the claimant. Legal duties are those prescribed either by contract between the parties, or by the law.
In order for a claimant to commence legal action against another party, the claimant must file a summons and complaint with the court and serve a copy of the summons and complaint on the party against whom the lawsuit is being brought. The person who brings the lawsuit is called the “Plaintiff” and the person against whom the lawsuit is brought is called the “Defendant.”
Read the court decisionRead the full story...Reprinted courtesy of
Bremer Whyte Brown & O’Meara
Jury Awards Aluminum Company 35 Million in Time Element Losses
September 23, 2019 —
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogOn July 3, 2019, a Delaware jury determined that fourteen property insurers for Noranda Aluminum Holding Corp., an aluminum producer that filed for bankruptcy and ceased operations three years ago, owe Noranda over $35 million in time element losses that Noranda sustained as a result of two separate catastrophic incidents that occurred at its aluminum facility in 2015 and 2016.
In August 2015, an aluminum explosion occurred at Noranda’s facility, resulting in substantial property damage and bodily injuries. Though the insurers paid for Noranda’s property damage claim, the insurers only covered $5.64 million of Noranda’s $22 million time element claim. In January 2016, the same facility sustained significant damage as a result of equipment failure. The insurers again paid for Noranda’s property damage claim arising from the equipment failure but declined to pay any of its $22.8 million time element claim.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews & Kurth and
Daniel Hentschel, Hunton Andrews & Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Waive It Goodbye: Despite Evidence to the Contrary, Delaware Upholds an AIA Waiver of Subrogation Clause
April 19, 2022 —
Lian Skaf - The Subrogation StrategistSubrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract is made – usually long before a loss occurs – a waiver of subrogation can doom what otherwise may have been a strong case. The Superior Court of Delaware considered such a scenario to determine whether a waiver of subrogation provision applied to a multimillion-dollar subrogation case.
In State of Delaware Insurance Coverage Office and Factory Mutual Insurance Co., both as subrogee of the University of Delaware v. DiSabatino Construction Co., Schlosser & Associates Mechanical Contractors, Inc. and V.E. Guerrazzi, Inc., C.A. No. N19C-08-080, 2022 Del. Super. LEXIS 108 (March 17, 2022), the court granted the defendants’ motions for summary judgment, holding that the plaintiffs’ claims were barred by a waiver of subrogation provision in the underlying contract. Thus, the court held that the plaintiffs could not pursue the defendants in their suit to recover damages as a result of a fire. The court specifically denied the plaintiffs’ argument that since the contract was not signed and another “short form” version was later used the waiver of subrogation provision should not apply.
Read the court decisionRead the full story...Reprinted courtesy of
Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Retaining Wall Contractor Not Responsible for Building Damage
July 20, 2011 —
CDJ STAFFThe Court of Appeals of Indiana ruled on July 8 in the case of Rollander Enterprises, Inc. v. H.C. Nutting Co. Judge Baily wrote the opinion affirming the decision of the trial court.
The case involved an unfinished condominium complex, the Slopes of Greendale, in Greendale, Indiana. Rollander is a real estate development company incorporated in Ohio. One of the issues in the case was whether the case should be settled in the Indiana courts or be tried in Ohio. The project was owned by a special purpose entity limited liability corporation incorporated in Indiana.
Rollander hired Nutting to determine the geological composition of the site. Nutting’s report described the site as “a medium plastic clay containing pieces of shale and limestone.” The court summarized this as corresponding with “slope instability and landslides.” Rollander then hired Nutting to design the retaining walls, which were constructed by Scherziner Drilling.
After cracking was discovered on State Route 1, the walls were discovered to be inadequate. More dirt was brought in and a system of tie-backs was designed to anchor the walls. Not only were the tie-backs unsightly, local officials would not approve the complex for occupancy. Further, the failure of the wall below one building lead to damage of that building.
The court concluded that since almost all events occurred in Indiana, they rejected Rollander’s contention that the case should be tried in Ohio. Further, the court notes “the last event making Nutting potentially liable on both claims was an injury that occurred in Indiana and consequently, under the lex loci delicti analysis, Indiana law applies.”
Nor did the court find that Nutting was responsible for the damage to the rest of the project, citing an Indiana Supreme Court ruling, that “there is no liability in tort to the owner of a major construction project for pure economic loss caused unintentionally by contractors, subcontractors, engineers, design professionals, or others engaged in the project with whom the project owner, whether or not technically in privity of contract, is connected through a network or chain of contracts.”
The court concluded:
Because Rollander was in contractual privity with Nutting, and Indy was connected to Nutting through a chain of contracts and no exception applies, the economic loss rule precludes their recovery in tort. Damage to Building B was not damage to "other property," and the negligent misrepresentation exception to the economic loss rule is inapplicable on these facts. The trial court therefore did not abuse its discretion by entering judgment on the evidence in favor of Nutting on the Appellants' negligence and negligent misrepresentation claims.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
Hurricane Handbook: A Policyholder's Guide to Handling Claims during Hurricane Season
October 11, 2021 —
Tracy Alan Saxe, Kelly A. Johnson, Samantha M. Oliveira & R. G. Nelson - Saxe Doernberger & VitaSDV's Natural Disaster Recovery Group presents the Hurricane Handbook: A Policyholder's Guide to Handling Claims during Hurricane Season. This handbook intends to be a practical guide on policyholder issues, both homeowners and business owners alike, when preparing for hurricane season and handling claims after a loss due to a hurricane. The handbook is a living document that will evolve over time, as our Natural Disaster Recovery Group members continue to contribute new and expansive content on the complex issues arising in this area. Remember to check back for additional information and updated content regarding the Hurricane Season Policyholder’s Handbook.
I. Are You Adequately Insured for a Hurricane?
Understanding the various types of coverage policyholders can purchase is vital to weathering the financial storm following a natural disaster.
Reprinted courtesy of
Tracy Alan Saxe, Saxe Doernberger & Vita,
Kelly A. Johnson, Saxe Doernberger & Vita,
Samantha M. Oliveira, Saxe Doernberger & Vita and
R. G. Nelson, Saxe Doernberger & Vita
Mr. Saxe may be contacted at TSaxe@sdvlaw.com
Ms. Johnson may be contacted at KJohnson@sdvlaw.com
Ms. Oliveira may be contacted at SOliveira@sdvlaw.com
Ms. Nelson may be contacted at RNelson@sdvlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Consult with Counsel when Preparing Construction Liens
April 13, 2017 —
David Adelstein – Florida Construction Legal UpdatesAll too often entities prepare their own construction liens. Sure, it is an effective way to save a few bucks. No doubt about it. But, by doing so, you are (i) not relying on advice of counsel that is important when it comes to lien preparation and (ii) not relying on strategy that goes along with the preparation of a lien. When you are liening, the reason you are doing so is because you have not been paid. You therefore want to collateralize your nonpayment against the real property—the leverage of a construction lien. This is a very beneficial statutory tool if implemented correctly, so it only makes sense to do it “strategically” right.
A construction lien is a statutory form. So, how hard can it be? Filling out the “form” is not hard, however, there is legal significance to the information and amounts included in a lien. For instance:
- There is significance to the amount you are liening. Are you liening for disputed change order work? Are you liening for amounts unrelated to base contract work?
- There is significance to the final furnishing date. Are you liening within 90 days of performing base contract work unrelated to punchlist or warranty work?
- There is significance to date the Notice to Owner was served (if you are not in privity with the owner). Was the Notice to Owner served within 45 days of initial furnishing?
- There is significance to the legal description identified in the lien. Are you liening the right property based on the type of project you are working on?
- There can even be significance to the initial furnishing date. Assuming you are the general contractor, what was your initial furnishing date in comparison with when the Notice of Commencement was recorded? If you are not a general contractor, when was the initial furnishing date in comparison with when you served the Notice to Owner?
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Real Estate & Construction News Roundup (07/05/23) – A Hospitality Strike in Southern California, Agencies Step in With Lenders and the Social in ESG
August 14, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, we see promising developments for climate change action in commercial real estate, how homeowners are reacting to new energy concerns, the fallout of the U.S. debt ceiling fight on global M&A deals, and more!
- There are new ways the commercial real estate sector can grow its commitment to climate goals and contributions to reducing its carbon footprint. (Mahesh Ramanujam, Forbes)
- Thousands of hospitality workers in Southern California went on strike to demand higher wages, access to affordable family health care benefits and stronger workplace protections. (Julianne McShane, NBC)
Read the court decisionRead the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
The “Unavailability Exception” is Unavailable to Policyholders, According to New York Court of Appeals
September 10, 2018 —
William S. Bennett & Warsame Y. Hassan - Saxe Doernberger & Vita, P.C.The New York Court of Appeals recently upheld a prior appellate division decision finding that policyholders facing environmental claims, spanning multiple years, cannot force their insurers partially on the risk to provide coverage for years where the insurers did not issue policies, even though pollution insurance was unavailable in the marketplace.
In Keyspan Gas E. Corp. v. Munich Reins. Am., Keyspan Gas East Corporation (“Keyspan”) argued other insurers should cover the period when pollution property insurance was unavailable in the marketplace, according to their pro-rata share of coverage. 31 N.Y.3d 51 (2018). In a unanimous decision, the Court emphasized the Appellate Division’s prior ruling that stated, “spreading risk should not by itself serve as a legal basis for providing free insurance to an insured.”
Read the court decisionRead the full story...Reprinted courtesy of
William S. Bennett, Saxe Doernberger & Vita, P.C.Mr. Bennett may be contacted at
wsb@sdvlaw.com
