COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

When Cyber Crooks Steal Payments, Think Insurance Makes Up The Loss? Think Again.

November 18, 2024 — Richard Korman - Engineering News-Record
In Summer 2023, the payment system for a small office and warehouse project that Beck Properties was developing for itself in South St. Paul, Minn., seemed to be running smoothly. Emails were criss-crossing back and forth and paper checks were landing in mailboxes. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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Filling Out the Contractor’s Final Payment Affidavit

February 03, 2020 — David Adelstein - Florida Construction Legal Updates
When preparing a contractor’s final payment affidavit, I always suggest for a contractor (or anyone in privity of contract with the owner) to identify the undisputed amounts their accounting reflects is owed to ALL subcontractors, etc., regardless of whether that entity preserved their lien rights. If the contractor provided a payment bond, I footnote this simply to support that none of the lower-tiered subcontractors have lien rights or are the traditional “lienor.” (Thus, there is no prejudice to the owner if an entity is inadvertently omitted from the affidavit.) There are times, however, where a contractor does not identify a subcontractor that did not serve a notice to owner and, therefore, has no valid lien rights. Or, a contractor omits a lienor that actually did serve a notice to owner and preserve its lien rights; this happens. There was an older First District Court of Appeals case that harshly (and, quite, unfairly) held that the contractor must identify everyone in the final payment affidavit regardless of whether that entity timely served a notice to owner or their lien is invalid. This case, however, predated, a 1998 statutory change to Florida’s Lien Law. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Insurer in Bad Faith For Refusing to Commit to Appraisal

October 08, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court denied State Farm's motion for summary judgment on the insured homeowners' bad faith claim for State Farm's failure to agree to an appraisal. Currie v. State Farm Fire and Cas. Co., 2014 WL 4081051 (E.D. Pa. Aug. 19, 2014). Superstorm Sandy caused a tree to crash in the insureds' home. The loss was reported to State Farm. The State Farm adjuster verbally quoted the roof replacement at more than $100,000. State Farm eventually paid $60,000 for the roof replacement. The insureds' adjuster estimated the loss at $363,804.98. The insureds demanded an appraisal. State Farm rejected the demand because the claim involved certain items for which State Farm did not admit liability, including damage to the interior hardwood floors. State Farm contended that since the dispute went beyond the amount of loss, an appraisal was not an appropriate method of resolution. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Georgia Local Government Drainage Liability: Nuisance and Trespass

November 29, 2021 — David R. Cook Jr. - Autry, Hall & Cook, LLP
A long-running dispute between a landowner and a municipality has escalated to the Georgia Court of Appeals and in the federal court for the Northern District of Georgia.[1] The municipality maintained a stormwater system that discharged on property uphill from the landowner’s property. The uphill property was used as an illegal dump, and debris washed downhill from the dump to the landowner’s property. The debris clogged the landowner’s surface water drainage system, which caused flooding of the property and a building. State Case The landowner sued for trespass, nuisance, takings, and inverse condemnation. While the other claims were barred by the four-year statute of limitations, the court addressed the plaintiff-landowner’s claim for continuing nuisance. Municipalities may be liable when they negligently construct or maintain a sewer or drainage system that causes repeated flooding of property, such that it results in a continuing, abatable nuisance.[2] For a municipality to be liable for maintenance of a nuisance:

the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.[3]

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Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Applying Mighty Midgets, NY Court Awards Legal Expenses to Insureds Which Defeated Insurer’s Coverage Claims

February 10, 2020 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
Is an insured (or putative insured) entitled to recover its legal expenses if it is successful in coverage litigation? In some states, no. In many other states, yes – based on either a statute or the common law. In New York, an insured may recover such expenses if it was “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and, while forced into that posture, the insured defeats the insurer’s claim. Mighty Midgets, Inc. v. Centennial Ins. Co., 389 N.E.2d 1080, 1085 (N.Y. 1979). As a corollary to that rule, the insured is not entitled to its expenses “in an affirmative action brought by [the insured] to settle its rights. . . .” Id. at 1085. Earlier this week, the New York federal court in United Specialty Ins. Co. v. Lux Maint. & Ren. Corp., 2019 U.S. Dist. LEXIS 201805 (S.D.N.Y. Nov. 20, 2019) became the latest to apply the Mighty Midgets rule, awarding several insureds their legal expenses after defeating the insurer’s declaratory judgment action. In Lux, the CGL insurer of a façade-renovation contractor sued the contractor (its named insured) and several owners of a hospital (putative additional insureds) at which the façade-renovation work took place, claiming that the insurer did not owe a defense or indemnity to any of those companies in connection with an underlying bodily injury action brought by an employee of the contractor who was injured while performing the work. The insurer and the putative additional insureds filed cross-motions for summary judgment on the coverage issues, with the putative additional insureds also seeking to recover their legal expenses for defending against the insurer’s action. The U.S. District Court for the Southern District of New York concluded that, based on the contractor’s agreement to provide coverage for the hospital owners, and a comparison between the underlying allegations and the policy, the insurer owed the hospital owners coverage as additional insureds to the contractor’s policy; the court also concluded that the insurer owed coverage for the contractor’s contractual defense and indemnity obligations to the hospital owners. After concluding that the insurer’s claim that it did not owe coverage lacked merit, the court turned to the additional insureds’ request for their legal expenses. The court examined the “well settled” rule under New York law “that an insured cannot recover his legal expenditure in a dispute with an insurer over coverage, even if the insurer loses and is obligated to provide coverage,” but also New York’s “limited exception” to that rule, “under which an insured who is ‘cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations, and who prevails on the merits, may recover attorneys’ fees incurred in defending against the insurer’s action.’ ” Lux, 2019 U.S. Dist. LEXIS 201805, at *18 (quoting Mighty Midgets, 389 N.E.2d at 1085). Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Timothy A. Carroll, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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The Privilege Is All Mine: California Appellate Court Finds Law Firm Holds Attorney Work Product Privilege Applicable to Documents Created by Formerly Employed Attorney

June 29, 2017 — David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Tucker Ellis LLP v. Superior Court (A148956 – Filed 6/21/2017), the First Appellate District held that (1) the holder of the attorney work product privilege is the employer law firm rather than the former employee attorney who created the privileged documents while a firm employee, and (2) as a result, the firm did not owe a duty to obtain the former attorney’s permission before disclosing the subject documents to third parties. In Tucker Ellis LLP, the attorney, while still employed by Tucker Ellis, exchanged a series of e-mails with a consultant retained by the firm to assist in asbestos litigation for a client. The firm also entered into an agreement with the consultant to summarize scientific studies on the causes of mesothelioma in a published review article. After the attorney departed the firm, Tucker Ellis was served with a subpoena in connection with a matter pending in Kentucky for the production of communications with the consultant regarding the article. In response, Tucker Ellis, in relevant part, produced the work product e-mails authored by the former attorney. The e-mails eventually ended up on the Internet and reached over 50 asbestos plaintiffs’ attorneys, resulting in the attorney’s termination from his new firm. After Tucker Ellis ignored the attorney’s “claw-back” letter, he filed suit against the firm for negligence, among other causes of action. The trial court granted the former attorney’s motion for summary adjudication on the issue of duty, reasoning that the firm owed the attorney a legal duty to prevent the disclosure of the work product. Tucker Ellis filed a petition for a writ of mandate with the Court of Appeal challenging the trial court’s decision on the duty issue. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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Crews Tested By Rocky Ground, Utility Challenges

September 03, 2019 — Louise Poirier - Engineering News-Record
Problematic utility locations and difficult ground conditions required the project team to develop innovative solutions on the University of Texas at San Antonio’s $95-million Science and Engineering Building. Reprinted courtesy of Louise Poirier, Engineering News-Record Ms. Poirier may be contacted at poirierl@enr.com Read the court decision
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Sometimes, Being too Cute with Pleading Allegations is Unnecessary

June 06, 2018 — David Adelstein - Florida Construction Legal Updates
There are times where being too darn cute with your pleading allegations is unnecessary and does not work. But, the point is really that the cuteness is unnecessary. In a Miller Act payment bond dispute in Boneso Brothers Construction, Inc. v. Sauer, Inc., 2018 WL 2387833 (N.D.Cal. 2018), a claimant asserted claims against a Miller Act payment bond surety for breach of the payment bond, breach of a subcontract, open account, and account stated. The question is why would the claimant sue the payment bond surety for breach of subcontract (when the subcontract was not with the surety), and open account and account stated. I have no clue, other than such claims appeared quite unnecessary when the claimant asserted an action on the Miller Act payment bond (which is what the surety is liable under — actions under the statutory payment bond). Such claims were dismissed. And, they should have been. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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