Exponential Acceleration—Interview with Anders Hvid
December 01, 2017 —
Aarni Heiskanen - AEC BusinessAnders Hvid is a Danish consultant, speaker, and author. He talks about digital disruption, exponential acceleration, and paradigm shifts that are taking place in a world that is moving from local and linear into global and exponential.
“I have a background in social studies. My interest is in humans, and systems in which they work together. I’ve always had a deep fascination with technology and how it influences our society, our jobs, our democracies, and systems,” Anders says. He visited Singularity University back in 2010, and that experience made a lasting impression on him. “It freaked me out, to be honest, and it opened my eyes to how important technology is.”
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Construction Manager’s Win in Michigan after Michigan Supreme Court Finds a Subcontractor’s Unintended Faulty Work is an ‘Occurrence’ Under CGL
August 03, 2020 —
Gabrielle Szlachta-McGinn - Newmeyer DillionOn June 29, 2020, the Michigan Supreme Court overturned a longstanding precedent that commercial general liability (“CGL”) insurers have historically relied upon to deny insurance coverage for claims involving pre-1986 CGL policies. See Hawkeye-Security Ins. Co. v. Vector Const. Co., 185 Mich. App. 369, 372, 460 N.W.2d 329, 331 (1990). In its recent ruling, the state Supreme Court unanimously agreed that an Insurance Services Office, Inc. (“ISO”) 1986 standard CGL policy, which is sold to construction contractors across the United States, provides coverage for property damage to a policyholder’s work product that resulted from a subcontractor’s unintended faulty workmanship. Skanska USA Bldg. Inc. v. M.A.P. Mech. Contractors, Inc., No. 159510, 2020 WL 3527909 (Mich. June 29, 2020).
In 2008, Skanska USA Building, Inc., the construction manager on a renovation project for Mid-Michigan Medical Center, signed a subcontract with defendant M.A.P. Mechanical Contractors (“MAP”) to install a new heating and cooling (“HVAC”) system. Id. During the renovation, MAP installed some of the expansion joints in the new HVAC system backwards. Id. The defective installation caused approximately $1.4 million in property damage to concrete, steel and the heating system, which Skanska discovered nearly two years after MAP completed the project. Id. After performing the repairs and replacing the damaged property, Skanska sought repayment for the repair costs from MAP and also submitted a claim to Amerisure seeking coverage as an insured under the CGL policy. Id. When Amerisure rejected Skanska’s claim, Skanska sued both parties. Id. Amerisure relied on the holding in Hawkeye and argued that MAP’s defective workmanship was not a covered “occurrence” under the CGL policy, which the policy defined as an accident. Id. at *4.
The Michigan Court of Appeals ignored the express language contained in the CGL policy and applied a prior appellate court precedent from Hawkeye, finding that MAP’s faulty work was not an “occurrence” and thus, did not trigger CGL coverage. Id. at *4. The Court of Appeals further reasoned that Skanska was an Amerisure policyholder and that the only property damage was to Skanska’s own work, which was not covered under the CGL policy. Id. at *5.
In a landmark decision, the Michigan Supreme Court reversed, holding unanimously that the Court of Appeals incorrectly applied the holding of Hawkeye because it failed to consider the impact of the 1986 revisions to standard CGL insurance policies. Id. at *10. Chief Justice Bridget M. McCormack explained that the Hawkeye decision rested on the 1973 version of the ISO form insurance policy, which specifically excluded certain business risks from coverage such as property damage to a policyholder’s own work. Id. The Supreme Court agreed that while Hawkeye was correctly decided, it did not apply here because the 1986 revised ISO policy includes an exception for property damage caused by a subcontractor’s unintentional faulty work. Id.
The Supreme Court said that under the plain reading of the current CGL policy language, an “accident” could include a subcontractor’s unintentional defective work that damaged a policyholder’s work product and thus, may qualify as an “occurrence” covered under the policy. Id. at *9. The Supreme Court defined an “accident” (which was not defined in the Amerisure policy) as “an undefined contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Id. at *5; see Allstate Ins. Co. v. McCarn, 466 Mich. 277, 281, 645 N.W.2d 20, 23 (2002). The Supreme Court noted that there was no evidence suggesting that MAP purposefully installed the expansion joints backwards, nor was there evidence indicating that the parties affected by MAP’s negligence anticipated, foresaw, or expected MAP’s defective installation or property damage. Skanska, 2020 WL 3527909, at *4. Therefore, the Supreme Court concluded that an “occurrence” may have happened, which would trigger coverage under the CGL policy. Id. at *10.
Although this landmark decision changes Michigan law, the decision is limited to cases involving the 1986 ISO policy language revisions to CGL insurance policies. Id. The Supreme Court's decision does not overturn Hawkeye, but rather limits Hawkeye’s authority to cases involving the 1973 ISO form. Id.
Gabrielle Szlachta-McGinn was a summer associate at Newmeyer Dillion as part of the firm's 2020 summer class. You may learn more about Newmeyer Dillion's construction litigation services and find the group's key contacts at https://www.newmeyerdillion.com/construction-litigation/.
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Did New York Zero Tolerance Campaign Improve Jobsite Safety?
December 13, 2021 —
Neil Flynn - Construction ExecutiveConstruction work is one of the most dangerous jobs in America, accounting for 19% of all workplace deaths in 2019. In New York City, that number is almost 50% higher, with construction accidents accounting for a quarter of all workplace deaths. One of the most positive developments in this area, despite the presence of COVID-19, has been the recent implementation of the “Zero Tolerance” campaign by the New York City’s Department of Buildings.
The goal of the DOB’s latest construction safety campaign was to reduce the number of building site injuries and fatalities by implementing a zero-tolerance standard. While it is too premature to measure the program’s efficiency, a
preliminary analysis of the first three months’ results appear to be nothing short of impressive.
Reprinted courtesy of
Neil Flynn, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Flynn may be contacted at
nf@plattalaw.com
Florida Supreme Court: Notice of Right to Repair is a CGL “Suit,” SDV Amicus Brief Supports Decision
January 10, 2018 —
Gregory Podolak & Brian Clifford - SD&V Case AlertConstruction policyholders in Florida have been given substantial ammunition to compel general liability insurers to provide a defense against pre-suit accusations of defective work. Florida is one of approximately thirty (30) states that require property owners to serve contractors with notice and an opportunity to repair construction defects before filing suit. Only a few states have addressed whether a CGL policy should provide a defense for similar processes. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., decided late in December by the Florida Supreme Court, acknowledged that the 558 process is a “suit,” thus impeding insurers from refusing a defense during this notice period.
Section 558.004(1), Florida Statutes (2012) requires a property owner alleging construction defects to serve a written notice to repair on the contractor before filing an action in court. Altman Contractors built a condominium in Broward County, Florida. In 2012, the condominium owners alleged defects in accordance with Section 558. Altman demanded that its general liability carrier, Crum & Forster, defend and indemnify it against the 558 notices. Crum & Forster denied coverage, claiming that 558 notices are not a “suit” as defined by the policy.
Reprinted courtesy of
Gregory Podolak, Saxe Doernberger & Vita, P.C. and
Brian Clifford, Saxe Doernberger & Vita, P.C.
Mr. Podolak may be contacted at gdp@sdvlaw.com
Mr. Clifford may be contacted at bjc@sdvlaw.com
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Key Amendments to Insurance Claims-Handling Regulations in Puerto Rico
September 23, 2019 —
Andres Avila & Richard W. Brown - SDV InsightsPolicyholders in Puerto Rico should be aware of significant benefits provided by recent amendments to the Insurance Code. New rules establish an expedited method of property insurance dispute resolution, mandatory expedited partial payments in the event of catastrophic events, and protection against bad faith claims handling by insurers.
Appraisal Process with a Puerto Rican Twist
A key amendment is the establishment of an appraisal process, widely used for many years in the United States and now adopted in Puerto Rico. Commercial and personal property insurers in Puerto Rico shall include, in their policies, a clause for an appraisal process according to Article 11.150 of the Insurance Code of Puerto Rico, 26 L.P.R.A. § 101 et seq. (“the Code”).
The appraisal process provides both policyholders and insurers the option to submit insurance claims to an impartial umpire if a dispute arises over the value of covered damages or losses. The umpire and appraisers do not have authority to resolve coverage or legal issues. They can only resolve disputes over the quantum claimed for losses already determined to be covered by the insurer. Id. Each party is required to pay its own appraiser’s fees and split equally the fees of the umpire. Id.
Reprinted courtesy of
Andres Avila, Saxe Doernberger & Vita, P.C. and
Richard W. Brown, Saxe Doernberger & Vita, P.C.
Mr. Avila may be contacted at ara@sdvlaw.com
Mr. Brown may be contacted at rwb@sdvlaw.com
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Do Not Forfeit Coverage Under Your Property Insurance Policy
February 22, 2021 —
David Adelstein - Florida Construction Legal UpdatesIf you have read prior articles (see
here and
here as an example), then you know that when it comes to first-party property insurance policies, an insured must comply with post-loss obligations in the policy. Failure to comply with a post-loss obligation gives the insurer the argument that the insured materially breached the policy and, therefore, forfeited rights to coverage. Naturally, this is avoidable by ensuring post-loss obligations are complied with, ideally under the guidance of counsel and qualified public adjusters to ensure your rights are being preserved and maximized.
[W]hen an insurer has alleged, as an affirmative defense to coverage, and thereafter has subsequently established, that an insured has failed to substantially comply with a contractually mandated post-loss obligation, prejudice to the insurer from the insured’s material breach is presumed, and the burden then shifts to the insured to show that any breach of post-loss obligations did not prejudice the insurer.
Universal Property & Casualty Ins. Co. v. Horne, 46 Fla.L.Weekly D201b (Fla. 3d DCA 2021) quoting American Integrity Ins. Co. v. Estrada, 276 So.3d 905, 916 (Fla. 3d DCA 2019).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
NYC-N.J. Gateway Rail-Tunnel Work May Start in 2023
March 28, 2022 —
Elise Young - BloombergThe $12.3 billion Gateway rail tunnel linking New York City and New Jersey has reached a major preconstruction milestone with the completion of geotechnical studies necessary for the engineering phase.
The analysis of rock and silt from 75 earth samples on both sides of the Hudson River marks the latest in a series of swift leaps toward a potential 2023 start date. The project had been delayed years by former President Donald Trump, who had argued that costs should be covered solely by the states, not U.S. taxpayers.
The samples, from depths of 48 feet to 505 feet (14.6 meters to 154 meters), will guide design, according to the Gateway Development Commission, the project’s overseer. Some areas of particular interest to the researchers were on Manhattan’s West Side, parts of which were underwater before landfill was added many years ago.
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Elise Young, Bloomberg
Newmeyer & Dillion Partner Aaron Lovaas & Casey Quinn Recognized by Super Lawyers
July 21, 2018 —
Newmeyer & DillionLAS VEGAS, Nev. – JUNE 11, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that partner
Aaron Lovaas has been selected to the 2018 Mountain States Super Lawyers list, and associate
Casey Quinn has been selected to the 2018 Mountain States Rising Stars list by Super Lawyers. Each year, no more than 5 percent of lawyers are named to a Super Lawyers list and less than 2.5 percent are named to the Rising Stars list. This is the 9th consecutive year Lovaas has been honored, while Quinn has been consistently selected as a Rising Star honoree in prior years.
Aaron Lovaas is a partner in the Las Vegas office. As a transactional attorney and business litigator, Lovaas has the ability to evaluate legal issues from both points of view and help his clients understand their best option. He also brings to the table experience as a business owner, having owned and managed his own boutique law firm for 12 years.
Casey Quinn, an associate in the Las Vegas office, focuses his practice in complex commercial and construction litigation. He represents a variety of business entities in commercial disputes, including contract claims, business torts, privacy lawsuits, defamation, and fraud. Quinn is a past chair of the Construction Law section of the State Bar of Nevada and has successfully argued before the Supreme Court of Nevada, as well as settled disputes through various forms of conflict resolution including mediation and arbitration.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
About Newmeyer & Dillion
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. For additional information, call 949.854.7000 or visit www.ndlf.com.
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