Thieves Stole Backhoe for Use in Bank Heist
July 31, 2013 —
CDJ STAFFYou can do a lot with a backhoe, but maybe not use it for bank robbery. The New York Daily News wasn’t clear on how many were involved, but described them as “a brazen crew of bandits.” They stole a backhoe from a construction site and used it to pry an ATM from a bank. When they couldn’t get the ATM open, they jumped into a black SUV and left the scene.
The bandits were engaging in a sort of ATM spree. They did manage to open two ATMs, each holding more than $7,000 in cash. They were less successful at their use of heavy machinery. In an earlier heist, they used a tow truck to try to remove an ATM, but the chain snapped and the bank’s alarm rang. The Daily News quotes one former tow truck driver who said that it was “stupid to use a tow truck.” In her experience, “those chains snap at any time.”
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Why You Make A Better Wall Than A Window: Why Policyholders Can Rest Assured That Insurers Should Pay Legal Bills for Claims with Potential Coverage
March 14, 2018 —
Alan Packer and Graham Mills - Newmeyer & Dillion, LLPUnfortunately, policyholders, such as manufacturers and contractors, routinely face the unnecessary challenge of how to access all of the insurance coverage which they have purchased. Frequently, the most pressing need is to get the insurance company to pay the legal bills when the policyholders have been sued. The recent Iowa federal district court opinion in
Pella Corporation v. Liberty Mutual Insurance Company should help a policyholder in a dispute to require its insurance company to pay those legal bills sooner rather than later by highlighting that the duty to defend arises from the potential for coverage, and the insurer may not force the policyholder to prove the damage to obtain a defense.
In
Pella, a window manufacturer purchased several years of insurance coverage from Liberty Mutual. Similar to many companies, Pella had many “layers” of insurance coverage in any given year. These layers collectively function like a tower. The general idea is that each layer provides a certain amount of coverage after the insurance policy below it had paid its money. The Liberty Mutual insurance policies provided excess coverage.
After the
Pella window manufacturer made and sold its windows, it was sued in numerous lawsuits alleging that its windows were defective and that those defective windows caused a wide variety of damage to the structures in which they were installed. The window manufacturer tendered those lawsuits to its insurance companies in its tower of coverage, asking that the insurance companies pay its legal bills incurred in its defense. As to Liberty Mutual, the window manufacturer argued that the Liberty Mutual insurance policies were triggered, and so obligated to reimburse it, if a window was installed during the years that those policies provided coverage or if there was a mere allegation that a window was installed during the years that those policies provided coverage. Liberty Mutual opposed, arguing that the date of installation of the windows was insufficient to trigger the policies, and that the manufacturer was required to demonstrate the date that damage actually occurred to trigger a defense.
The key issue before the
Pella Court in this decision was a simple one: which insurance policies, if any, issued by Liberty Mutual had an obligation to pay the window manufacturer’s legal bills? The answer to that question is critical and financially significant. Getting an insurance company to honor its obligations and start paying the legal bills as soon as possible is very important for a policyholder because of the cost of defending oneself in a lawsuit; often the key reason why an insurance policy is even purchased is to provide the policyholder with the right to call upon the insurance company’s financial resources to defend it should it be sued.
In a ruling that will be welcomed by policyholders, the
Pella Court held that Liberty Mutual’s multiple insurance policies were triggered, and so obligated to pay for the window manufacturer’s defense, if one of two events occurred during the years in which those insurance policies provided coverage: (1) a window was actually installed during a year when the insurance policy provided coverage or (2) the window was alleged to be installed in the year that the insurance policy provided coverage. The Court agreed with the policyholder that once the windows were installed, property damage was alleged and “may
potentially have occurred” from that point on, thus the policies on the risk from that point forward. The practical effect of this ruling meant that Liberty Mutual had to reimburse the window manufacturer for the defense fees and costs that it had paid.
While
Pella was decided under Iowa law, the principles upon which it relied are similar to those applied under California law. Importantly, both California and Iowa law hold that an insurance company must provide a defense in response to a claim that is, or could be, covered by the insurance policy. The mere potential that the claim might be covered is enough for the insurance company to be obligated to pay for policyholder’s legal fees and costs.
Establishing that an insurance company must pay legal fees and costs as soon as possible allows a policyholder to save its own money. Why should a policyholder pay legal bills when it purchased an insurance policy as protection to ensure that it did not have to pay those bills? The answer is that a policyholder should not and, under
Pella, the policyholder does not have to. Rather, the insurance company must start paying for that defense from a very early date. Pella confirms for policyholders the position that their insurance companies should pay legal bills earlier rather than later.
Alan Packer is a partner in the Walnut Creek office for Newmeyer & Dillion, LLP, representing homebuilders, property owners, and business clients on a broad range of legal matters, including risk management, insurance matters, wrap consultation and documentation, efforts to counter solicitation of homeowners, subcontract documentation, as well as complex litigation matters. Alan can be reached at alan.packer@ndlf.com.
Graham Mills is a partner in the Walnut Creek offce of Newmeyer & Dillion, LLP, representing clients in the area of complex insurance law with an emphasis on insurance recovery, construction litigation, real estate litigation, and business litigation. He regularly examines and analyzes a wide variety of insurance policies. Graham can be reached at graham.mills@ndlf.com.
ABOUT NEWMEYER & DILLION LLP
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review’s AV Preeminent® highest rating.
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Boston Construction Bands With Health Care to Fight COVID-19
January 11, 2021 —
Scott Van Voorhis - Engineering News-RecordTrade union leaders, construction executives and international health care experts are teaming up in Boston o stop the spread of COVID-19 in the city’s booming construction sector. The coalition unveiled a program called Construction Stops COVID on Dec. 22. The testing, tracing and treatment initiative targets tens of thousands of hard-hatted workers toiling on construction sites across the city.
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Scott Van Voorhis, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Almost Nothing Is Impossible
October 30, 2018 —
Brian N. Krulick - Smith CurrieIn today’s ever-changing legal and political climate, contractors are being forced to deal with events and circumstances that seemed improbable just a short time ago. These changing circumstances have led some contractors to question whether they are required to continue performing in the face of uncertainty and, in many cases, potentially large losses. The doctrines of impossibility and impracticability, if proven, can serve as powerful defenses and excuse performance of a construction contract. However, contractors should exercise great caution before relying on these defenses as an excuse for nonperformance, as the consequences of stopping work without proper justification can be disastrous.
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Brian N. Krulick, Smith CurrieMr. Krulick may be contacted at
bnkrulick@smithcurrie.com
Manhattan Condo Lists for Record $150 Million
February 18, 2015 —
Oshrat Carmiel – Bloomberg(Bloomberg) -- Manhattan’s ultra-luxury condo market has a new high-water mark: $150 million.
That’s the price set by developer Chetrit Group for a 21,500-square-foot (2,000-square-meter) triplex at the former Sony Building in Midtown, according to documents filed with the New York State attorney general’s office. It would be a record for a residential listing, topping a $130 million offering planned at Zeckendorf Development Co.’s 520 Park Ave.
As luxury apartments proliferate in Manhattan, builders are offering their premier units at ever-higher prices as a way of standing out from the crowd, said Jonathan Miller, president of New York appraiser Miller Samuel Inc. So far, the highest price ever paid for a condominium in the city is $100.5 million, a deal completed in December for a duplex penthouse at the One57 tower.
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Oshrat Carmiel, BloombergMs. Carmiel may be contacted at
ocarmiel1@bloomberg.net
Bidder Be Thoughtful: The Impacts of Disclaimers in Pre-Bid Reports
August 04, 2021 —
Joshua A. Morehouse - ConsensusDocsWhen bidding a project, subsurface or latent site conditions that are not immediately apparent can massively impact the costs of performance to general contractors. Were contractors required to bid on projects without any information on pre-existing conditions, they would need either to be assured that any additional costs would be reimbursed by the owner, or to include significant contingencies for subsurface conditions in their bids. For owners, these options result in either increased risk or increased cost—neither of which is particularly palatable. Owners therefore implement several contractual tools to minimize these risks and costs.
One of these tools is providing bidders with a report on latent conditions, often called a “geotechnical data report” or “GDR”, but otherwise shifting as much of the subsurface-related risk as possible to the contractor. In theory, these reports permit contractors to appropriately adjust their contingencies for latent conditions, thus saving owners money. However, several independent and thorny issues arise where site reports provided by the owner are either inconsistent with or silent on the actual conditions of a project site. Hence owners often include disclaimers with these reports, such as noting that the report is for “informational purposes only” or that the report is “not part of the contract documents."
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Joshua A. Morehouse, Peckar & Abramson, P.C.Mr. Morehouse may be contacted at
jmorehouse@pecklaw.com
Admissibility of Expert Opinions in Insurance Bad Faith Trials
November 04, 2019 —
David M. McLain – Colorado Construction LitigationIn 2010, Hansen Construction was sued for construction defects and was defended by three separate insurance carriers pursuant to various primary CGL insurance policies.[i] One of Hansen’s primary carriers, Maxum Indemnity Company, issued two primary policies, one from 2006-2007 and one from 2007-2008. Everest National Insurance Company issued a single excess liability policy for the 2007-2008 policy year, and which was to drop down and provide additional coverage should the 2007-2008 Maxum policy become exhausted. In November 2010, Maxum denied coverage under its 2007-2008 primarily policy but agreed to defend under the 2006-2007 primarily policy. When Maxum denied coverage under its 2007-2008 primary policy, Everest National Insurance denied under its excess liability policy.
In 2016, pursuant to a settlement agreement between Hansen Construction and Maxum, Maxum retroactively reallocated funds it owed to Hansen Construction from the 2006-2007 Maxum primary policy to the 2007-2008 Maxum primary policy, which became exhausted by the payment. Thereafter, Hansen Construction demanded coverage from Everest National, which continued to deny the claim. Hansen Construction then sued Everest National for, among other things, bad faith breach of contract.
In the bad faith action, both parties retained experts to testify at trial regarding insurance industry standards of care and whether Everest National’s conduct in handling Hansen Construction’s claim was reasonable. Both parties sought to strike the other’s expert testimony as improper and inadmissible under Federal Rule of Evidence 702.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Insured's Remand of Bad Faith Action Granted
December 30, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court agreed remand of the insured's bad faith action to state court was appropriate. Kavanaugh v. Nat'l Union Fire Ins. Co., 2019 U.S. Dist. LEXIS 138465 (C.D. Calif. Aug. 15, 2019).
The insured sued National Union and Great American Insurance Company in state court for failing to defend him in three civil actions. In the alternative, claims were brought against Gallagher Risk Management Services, Inc. and Chelsea Laing for professional negligence in failing to broker and procure adequate insurance for him. Laing acted as an "agent and/or broker and procured at least one of the policies at issue."
Gallagher removed the action based on federal diversity jurisdiction. Although Laing was a citizen of California, Gallagher argued she was fraudulently joined and was a sham defendant, so her citizenship should be disregarded for purposes of diversity jurisdiction. The insured moved to remand because Laing was a proper defendant.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
