Insurer's Motion to Dismiss "Redundant Claims" Denied
June 21, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's motion to dismiss was more appropriate for an eventual summary judgment motion and was consequently denied. Sivan Lam v. Scottsdale Ins. Co., 2024 U.S. Dist. LEXIS 81262 (M.D. Fla. April 12, 2024).
Lam suffered a loss to her home due to Hurricane Ian. When only a portion of the claim was paid, Lam sued his insurer, Scottsdale, for breach of contract (Count I) and declaratory relief (Count II).
Scottsdale argued that Lam's request for declaratory relief was redundant of her breach of contract claim. The court noted that Rule 12 (b)(6), Fed. R. Civil P., was a vehicle to challenge a claim's sufficiency. Redundancy was not insufficiency, and it was not a ground for dismissal under Rule 12 (b)(6).
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss
July 01, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019).
Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly.
In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Key Legal Considerations for Modular Construction Contracts
April 19, 2021 —
Frederick E. Hedberg - Construction ExecutiveModular construction is literally on the rise. It is rapidly displacing traditional stick-built construction for new commercial, industrial and residential buildings. Over the past decade, an increasing number of health care, education facilities and apartment buildings have been built using modular construction. As the need for housing, and especially affordable housing, has grown as a result of the COVID-19 pandemic, modular construction is becoming increasingly popular.
Recently, the Canadian government, through the Canadian Mortgage Housing Corporation, launched a “Rapid Housing Initiative,” a $1 billion program utilizing only modular construction to rapidly construct affordable housing for its citizens. Similarly, the city of Toronto (which last year approved a plan to build 250 modular homes in response to homelessness) plans to build 1,000 modular homes by 2030. The pandemic also has resulted in an urgent demand for modules for medical facilities and schools. Modular construction allows contractors to build “leaner” and “greener” buildings while increasing quality control and improving site safety and potentially saving valuable time and money.
Reprinted courtesy of
Frederick E. Hedberg, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Hedberg may be contacted at
fhedberg@rc.com
Celebrating Dave McLain’s Recognition in the Best Lawyers in America® 2025
September 16, 2024 —
Higgins, Hopkins, McLain & Roswell, LLCWe are thrilled to announce that David M. McLain, a founding partner of Higgins, Hopkins, McLain & Roswell, LLC, has been recognized in the prestigious publication, The Best Lawyers in America® 2025. David has earned this honor for his outstanding work in Construction Law and Litigation – Construction.
For over two decades, David has been a leading figure in the field of construction law. His dedication to providing exceptional legal services to developers, general contractors, and other construction professionals has set him apart as a trusted advisor and advocate in the Colorado construction industry. His inclusion in The Best Lawyers in America® 2025 is a testament to his hard work, legal acumen, and the respect he has garnered from his peers.
About The Best Lawyers in America®
The Best Lawyers in America® is one of the oldest and most esteemed peer-review publications in the legal profession. Each year, lawyers are nominated and evaluated by their peers based on their professional expertise and achievements. Only a select few receive this honor, making it a significant recognition of excellence in the legal field.
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Higgins, Hopkins, McLain & Roswell, LLC
How Artificial Intelligence Can Transform Construction
February 22, 2021 —
Jeff Rubenstone - Engineering News-RecordArtificial intelligence and machine-learning algorithms have struggled to make sense of chaotic construction jobsites, but recent years have seen industry firms build the vast data lakes and analytics systems necessary for these machines to provide useful advice on how to plan, schedule and execute projects. In some cases, these AI advisors have become a standard part of some firms’ project delivery methods. But it’s still a challenge to convince construction professionals to listen to these AI advisors, and there are emerging questions of how risk will be allocated once algorithm-driven decisions start to steer projects.
Reprinted courtesy of
Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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Contractors Liable For Their Subcontractor’s Failure To Pay Its Employees’ Wages And Benefits
November 01, 2022 —
Edward O. Pacer & David J. Scriven-Young - ConsensusDocsRecently, Illinois Governor J.B. Pritzker signed two House Bills that amend the Illinois Wage Payment & Collections Act, 820 ILCS 115 et. seq. (“Wage Act”), to provide greater protection for individuals working in the construction trades against wage theft in a defined class of projects. Pursuant to this new law, every general contractor, construction manager, or “primary contractor,” working on the projects included in the Bill’s purview will be liable for wages that have not been paid by a subcontractor or lower-tier subcontractor on any contract entered into after July 1, 2022, together with unpaid fringe benefits plus attorneys’ fees and costs that are incurred by the employee in bringing an action under the Wage Act. This new wage theft law follows several other states that have considered and passed similar legislation.
These amendments to the Wage Act apply to a primary contractor engaged in “erection, construction, alteration, or repair of a building structure, or other private work.” However, there are important limitations to the amendment’s applicability. The amendment does not apply to projects under contract with state or local government, or to general contractors that are parties to a collective bargaining agreement on a project where the work is being performed. Additionally, the amendment does not apply to primary contractors who are doing work with a value of less than $20,000, or work that involves only the altering or repairing of an existing single-family dwelling or single residential unit in a multi-unit building.
Reprinted courtesy of
Edward O. Pacer, Peckar & Abramson, P.C. (ConsensusDocs) and
David J. Scriven-Young, Peckar & Abramson, P.C. (ConsensusDocs)
Mr. Pacer may be contacted at epacer@pecklaw.com
Mr. Scriven-Young may be contacted at dscriven-young@pecklaw.com
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#1 CDJ Topic: McMillin Albany LLC v Superior Court of California
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFStephen A. Sunseria of
Gatzke Dillon & Balance LLP discussed how the Fifth Appellate District court “issued a blistering criticism of the Fourth Appellate District’s prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Ca.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act.” Sunseri stated that “McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts.”
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In another article regarding the McMillin Albany LLC case,
Garret Murai of
Wendel Rosen Black & Dean LLP posted an article on his California Construction Law Blog that went over the legal debate of California’s Right to Repair Act including Liberty Mutual, Burch v. Superior Court, and KB Home Greater Los Angeles, Inc. v. Superior Court and concluded with a discussion of the McMillin Albany case. Murai predicted, rightly it turned out, that the case would see a “final round before the California Supreme Court.”
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In their December 2, 2015 article, authors
Richard H. Glucksman,
Glenn T. Barger,
Jon A. Turigliatto, and
David A. Napper of
Chapman Glucksman Dean Roeb & Barger reported that the California Supreme Court granted the petition for review of the McMillin Albany decision: “The holdings in Liberty Mutual and McMillin Albany present a conflict of authority that the California Supreme Court has appropriately deemed worthy of review. The parties will now be permitted to file briefs on the merits and amicus briefs will certainly be submitted by the defense and plaintiff bars.”
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Luxury-Apartment Boom Favors D.C.’s Millennial Renters
August 27, 2014 —
Heather Perlberg – BloombergMandy Johnson was priced out of Virginia Square Towers, a luxury-apartment building rising across the Potomac River from Washington, D.C., where about $3,000 a month would bring perks such as a swimming pool, yoga studio and a game room with virtual golf and zombie dodge ball.
Less than 24 hours after declining to sign the contract in June, she got an e-mail from a leasing manager offering two months’ free rent. That brought the monthly payment down for Johnson and her roommate by about $450 over the term of the lease and put the place within reach.
“The building is still under construction, so we have to deal with that part, but we are also able to have this brand new apartment for the same price as one in older buildings, so we went for the shiny object,” said Johnson, 28, who works at a nonprofit that gives scholarships to military families.
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Heather Perlberg, BloombergMs. Perlberg may be contacted at
hperlberg@bloomberg.net