COVID-19 Business Interruption Lawsuits Begin: Iconic Oceana Grill in New Orleans Files Insurance Coverage Lawsuit
April 20, 2020 —
Jeffrey J. Vita & William S. Bennett - Saxe Doernberger & Vita, P.C.On Monday, the iconic New Orleans restaurant, Oceana Grill, filed the first Coronavirus-related business interruption insurance coverage lawsuit in a US jurisdiction. The declaratory judgment action styled Cajun Conti, LLC, et. al. d/b/a Oceana Grill v. Certain Underwriters at Lloyd’s, London was filed in Louisiana state court for the Parish of Orleans. As a direct result of the government-mandated closures and restrictions on public gatherings implemented by the City of New Orleans and State of Louisiana, Oceana Grill’s petition anticipates a significant loss of business income.
Based on allegations in the petition, there are several aspects of Oceana Grill’s policy that make this a good test case for business interruption coverage stemming from the Coronavirus. Although the specific policy language is not quoted in the petition, coverage provisions are categorically identified throughout.
As a preliminary matter, the policy at issue appears to be written on an “all risks” basis, meaning the insuring agreement of the policy would likely be triggered generally by all risks of “physical loss or damage” unless specifically excluded. This basis for coverage, which is common in property policies, is advantageous to policyholders, as it limits the insured’s burden of proof to establishing that there was physical loss or damage while leaving the burden of applying any more specific exclusion to the insurance company.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at jjv@sdvlaw.com
Mr. Bennett may be contacted at wsb@sdvlaw.com
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Jobsite Safety Should Be Every Contractors' Priority
December 09, 2019 —
Ray Reese - Construction ExecutiveAny general contractor understands the range of factors that go into building and sustaining a successful jobsite: hiring the right team, maintaining cutting-edge equipment, ensuring constant communication with clients and effectively leveraging the newest building technologies, just to name a few.
But any good general contractor understands that there is one factor that should always be considered as top priority: jobsite safety.
The health and wellbeing of a project’s team is paramount for obvious reasons, and it isn’t a lighthearted matter. Injuries and fatalities have too often been a piece of our industry’s story. In 2017 alone, there were 971 reported deaths on construction sites, which accounted for 20% of total worker fatalities, according to a report from the Occupational Safety and Health Administration. Of these 971 fatalities, 582 were the result of construction’s “fatal four”—falls, workers being struck by objects, electrocutions and workers being caught between equipment. For members of the industry, these are difficult numbers to read and to process; yet, it is extremely important to consider the injuries and lives lost when we take into consideration the seriousness of jobsite safety.
Often, general contractors’ and superintendents’ greatest challenge isn’t being convinced of the necessity of jobsite safety practices in protecting employees or the value of safety in creating a productive work environment. Instead, the focus should be providing industry leaders tips on exactly how to improve safety measures on their own jobsites. Understanding that safety is everyone’s responsibility is paramount.
Reprinted courtesy of
Ray Reese, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Reese may be contacted at
rreese@rives.com
Time is of the Essence, Even When the Contract Doesn’t Say So
January 11, 2021 —
Christopher G. Hill - Construction Law MusingsWelcome to 2021! As often happens here at Construction Law Musings, the year starts with a few posts on notable construction law cases that dropped in the past year or so. Not only does this review hopefully help you keep up, but helps me keep up with the latest developments (one of the reasons why I keep blogging).
The first of these cases is Appalachian Power Co. v. Wagman Heavy Civil, Inc. out of the Western District of Virginia federal court. In this case, Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Newmeyer Dillion Named 2022 Best Law Firm in Multiple Practice Areas By U.S. News-Best Lawyers
November 08, 2021 —
Newmeyer DillionNEWPORT BEACH, Calif. – November 5, 2021 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that U.S. News-Best Lawyers® has recognized the firm in its 2022 "Best Law Firms" rankings, in six practice areas earning the highest ranking possible - Tier 1 in the Orange County Metro area. The practices recognized include:
Commercial Litigation
Insurance Law
Real Estate Law
Litigation - Real Estate
Construction Law
Litigation – Construction
Additionally, the firm has been recognized as Tier 2 in Employment Law - Management and Tier 3 in Litigation - Insurance.
"Our firm was built on the culture of excellent personalized service and achieving the best results possible. Knowing that our clients and peers continue to value the offerings we provide showcases our ability to deliver business-oriented solutions across a wide range of practice areas."
Firms included in the 2022 "Best Law Firms" list have been recognized by their clients and peers for their professional excellence. Firms achieving a Tier 1 ranking have consistently demonstrated a unique combination of quality law practice and breadth of legal expertise.
To be eligible for the "Best Law Firms" ranking, a firm must have at least one attorney recognized in the current edition of The Best Lawyers in America for a specific practice area. Best Lawyers recognizes the top 4 percent of practicing attorneys in the U.S., selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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California Court of Appeal Finds Coverage for Injured Worker Despite Contractor's Exclusion
August 05, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe California Court of Appeal affirmed the trial court's finding that the policy covered a worker's injuries despite the Contractor's Exclusion. Cal. Spec. Insulation . Allied Work Surplus Lines, Ins. Co., 2024 Cal. App. LEXIS 317 (Cal. Ct. App. May 17, 2024).
Air Control Systems, Inc. was retained by a property owner to perform improvement work on a building. Air Control retained California Specialty Insulation, Inc. (CSI) to install duct insulation. Jason Standiford, an Air Control employee, sure CSI, asserting negligence for injuries he suffered when he fell 16 to 20 feet after. A CSI employee drove a scissor lift into a ladder he was standing on.
CSI was insured through a commercial general liability policy from Allied World. The policy included an endorsement titled "Bodily Injury to Any Employee or Temporary Worker of Contractors Exclusion." The Contractor Exclusion state the policy did not apply to "'Bodily injury' . . . to any 'employee' or 'ten,poary work' of any contractor or subcontractor arising out of in or the course of the rendering or performing services of any kind or nature by such contractor or subcontractor." Neither the endorsement nor the policy defined the term "contractor."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Traub Lieberman Elects New Partners for 2020
February 24, 2020 —
Traub LiebermanTraub Lieberman is pleased to announce that
Adam P. Joffe and
Heather Fleming have been elected to the partnership effective January 1, 2020.
“Heather and Adam are terrific additions to our partnership and team. They are both effective, experienced and driven lawyers who work steadfastly on behalf of clients to meet their needs,” said Michael Knippen, firm chair.
Adam joined the firm in 2019 and is based in the firm’s Chicago office, which now includes 10 partners. He counsels and represents insurers in complex first-party and third-party coverage litigation. Adam also advises insurers on their coverage obligations under primary and excess commercial lines policies, including commercial general liability, employment practices liability, professional liability, and commercial property policies.
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Traub Lieberman
Unintended Consequences of New Building Products and Services
April 19, 2022 —
David S. Jaffe – National Association of Home BuildersAs home builders throughout the United States are grappling with building material price surges, and shortages or delays for certain orders, many are exploring alternatives products to complete or start projects. For example, according to a recent article, some builders are constructing homes from natural materials such as rammed earth, adobe brick, and volcanic rock. In addition to being readily available on site there may be heating and cooling benefits due to the natural insulation provided by these materials. The article cautions, however, that using these alternative materials may come with added challenges such as higher costs due to a need for skilled labor, delays by home inspectors who may be unfamiliar with the techniques and methods of construction, and energy consultants who might have difficulty calculating the value of homes with these materials. See Home Builders Are Turning to Natural Materials to Get Around Supply Chain Problems; There are advantages to buying homes made with natural materials, but expect to pay a premium, Alanna Schubach, Mansion Global (March 25, 2022).
Another caution, not addressed in the article, however, but one that should be heeded by builders considering alternative materials, is the unintended consequences that might result from using alternative products, whether they are natural products or any others. The long-term effects of material use should not be ignored.
For instance, it has been reported that earthen materials are known to contain numerous organic substances and can also harbor mold. It was not too long ago that mold was a high liability issue for builders and property owners. Similarly, the use of rapidly renewable materials - products that can be produced naturally and quickly from nature - is a key component of green building. They are also cellulose or carbohydrate-based products and as such are typically optimal food sources for mold in the presence of moisture.
To avoid mold, it is important to understand the relationship between construction materials and their susceptibility to mold in the presence of moisture. “Buildings will never be designed, built, maintained, or utilized perfectly; and weather and natural disasters cannot be predicted. The one thing we can have complete control over, the materials within the building, should be selected wisely.” See Mold Susceptibility of Rapidly Renewable Building Materials Used in Wall Construction, AM Cooper, Master's thesis, Texas A&M University (2007) (Samples of wool, cork, straw, and cotton-- rapidly renewable materials used as exterior wall insulation products--were exposed to different moisture amounts in an encapsulated environment, representing the environment within a wall cavity when exposed to water from pipes, leaks, condensation and absorption, or from initial construction. The samples were monitored over time for mold growth).
Mold-related issues are just one example of the potential for unintended consequences from the use of alternative materials. Carefully reviewing building material choices in advance may help eliminate non-conforming building materials, returns and possibly disputes. NAHB has developed a guide,
Assessing Building Materials, for builders who may not have their own review process for gathering information from manufacturers and distributors when considering the selection of new building materials.
The guide is intended to arm members with the most important factor when evaluating new materials or products: information. Use the guide to step through the information collection process to make an informed decision on deploying new products or materials. The guide is not intended to be exhaustive or all-inclusive, but it will help builders ask the right questions and seek the most relevant information.
Copyright © 2022 by the National Association of Home Builders of the United States. All rights reserved.
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David S. Jaffe, NAHBMr. Jaffe may be contacted at
DJaffe@nahb.org
Corporate Transparency Act’s Impact on Real Estate: Reporting Companies, Exemptions and Beneficial Ownership Reporting (webinar)
December 04, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogOn October 23, 2023, colleague
Andrew Weiner and Kevin Gaunt, counsel at Hunton Andrews Kurth, examined the Corporate Transparency Act (CTA), effective Jan. 1, 2024, and its impact on real estate entities and transactions, including who is considered a reporting company subject to new beneficial ownership information (BOI) reporting requirements and whether an exemption applies. The panel also discussed certain state laws that impose similar reporting requirements as the CTA and described best practices for real estate counsel to assist their clients with preparing for the CTA’s implementation and ongoing compliance.
The panel also reviewed other important considerations, including:
- Which real estate entities will likely be most affected by the CTA’s implementation and why?
- What exemptions may apply?
- How will the CTA’s reporting requirements affect real estate transactions for lenders and investors/buyers?
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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
