Growing Optimism Among Home Builders
June 28, 2013 —
CDJ STAFFFor the first time since 2006, the number of home builders who are optimistic about home sales exceed those who are pessimistic, with 52 percent optimistic. Just last month, the builder confidence index was at 44. This eight-point jump was the largest change in more than a decade.
Their confidence has increased as economists and others have been seeing signs of an improved economy. There has been an increase in demand for new homes and even though sales are below what economists would like, homebuilders are finding buyers.
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Insurer's Denial of Coverage to Additional Insured Constitutes Bad Faith
May 21, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer's unreasonable denial of a defense and indemnity to a lessor/additional insured was found to be in bad faith. Seaway Props. v. Fireman's Fund Ins. Co., 2014 U.S. Dist. LEXIS 55998 (W.D. Wash. April 22, 2014).
Seaway leased restaurant space to Ciao Bella Food, LLC. In January 10, 2010, the underlying plaintiff was on her way to the restaurant when she attempted to step down from a concrete platform between the building parking lot and the entrance to the restaurant. Seaway's lease gave Ciao Bella the right to use the common areas, including the parking lot, but did not grant Ciao Bella exclusive control over the common areas. The plaintiff suffered injuries and claimed both Ciao Bella and Seaway were liable.
Seaway's lease required Ciao Bella to maintain a CGL policy and to name Seaway as an additional insured. Ciao Bella did so by securing a policy with Fireman's Fund. Fireman's Fund had notice of the plaintiff's claim by November 2010. Seaway demanded in March 2012 that Fireman's Fund indemnify and defend it. In September 2012, two years after it first learned of the plaintiff's injury, Fireman's Fund denied coverage, asserting that Seaway was not an insured under the policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Contractor Spills Coffee on Himself by Failing to Stay Mechanics Lien Action While Pursuing Arbitration
August 14, 2018 —
Garret Murai - California Construction Law BlogIt bugs the Mrs. that I have a habit of reading the directions. “Just plug the darn thing in!” said the Mrs. when we got a new coffee maker to replace our old one which we’ve had since I think before we were married (Life Lesson No. 347: Get a coffee maker you really, really like because they last forever). “But . . . the directions?,” I said.
By the time I had finished reading the instruction manual I could smell the coffee brewing in the kitchen. Granted, the Mrs. is more practical than I am in many ways (e.g., “You know, you didn’t need to buy 10 cans of corn to get the 10 for $10 discount. I guess you’re going to be eating a lot of corn”). But still. What might have happened if there was a serious coffee mishap?
And worrier as I may be mishaps can happen if you don’t read the directions. James Zenovic didn’t read the directions, and here’s his story . . .
Von Becelaere Ventures, LLC v. Zenovic
In Von Becelaere Ventures, LLC v. Zenovic, Case No. D072620 (June 6, 2018), James Zeonovic doing business as James Zeonovic Construction entered into a construction contract to build a single-family house for Von Becelaere Ventures, LLC in Laguna Beach, California. The construction contract included an arbitration provision that stated:
If any dispute arises concerning this Contract or the interpretation thereof, of concerning construction of the Improvements, or the Limited Warranty, customer service, defects, damages, or obligations therewith (a “Construction Dispute”), such Construction Dispute will be settled by binding arbitration. Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
First Circuit: No Coverage, No Duty to Investigate Alleged Loss Prior to Policy Period
May 18, 2020 —
Eric B. Hermanson & Austin D. Moody - White and WilliamsOn April 1, 2020, the First Circuit, applying Massachusetts law, issued a potentially useful decision addressing the Montrose “known loss” language in ISO Form CGL policies. In Clarendon National Insurance Company v. Philadelphia Indemnity Insurance Company,[1] the court applied this language to allow denial of defense for claims of recurring water infiltration that began before the insurer’s policy period, and it found an insurer had no duty to investigate whether the course of property damage might have been interrupted, or whether other property damage might have occurred during the policy period, so as to trigger coverage during a later policy.
In the underlying dispute, a condominium owner (Doherty) asserted negligence claims against her association’s property management company (Lundgren) stemming from alleged water infiltration into her condominium. The complaint said leaks developed in 2004 in the roof above Doherty’s unit, and repairs were not made in a timely or appropriate manner. The following year, the complaint said, a Lundgren employee notified Doherty that the threshold leading to her condominium's deck was rotting. In February 2006, Doherty discovered a mushroom and water infiltration on the threshold and notified Lundgren. At that time, Lundgren asked its maintenance and repair contractor (CBD) to replace the rotting threshold. According to the complaint, CBD did not do this repair in a timely manner and left debris exposed in Doherty’s bedroom.
In March 2006, the complaint said, a mold testing company hired by Lundgren found hazardous mold in Doherty's unit, caused by water intrusions and chronic dampness. Lundgren’s attempts at remediation were ineffectual. In September 2008, Doherty's doctor ordered her to leave the condominium and not to return until the leaks were repaired and mold was eliminated.
Reprinted courtesy of
Eric B. Hermanson, White and Williams and
Austin D. Moody, White and Williams
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
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Social Distancing and the Impact on Service of Process Amid the COVID-19 Pandemic
April 13, 2020 —
Robert Devine, James Burger & Susan Zingone - White and WilliamsService of process usually requires person-to-person contact and is an essential part of civil procedure. It notifies the defendant of the legal proceedings against him/her and establishes jurisdiction. “Process” refers to the documents that must be served on a defendant. If service of process is not performed pursuant to the governing rules of civil procedure, a lawsuit cannot proceed.
Service of Process in NJ and PA
Personal service is required to be the first attempted means of service in New Jersey. If personal service is not successful, then service may be made by mailing a copy of the process via registered or certified mail with return receipt requested to the defendant’s usual place of abode or business/place of employment, or to an authorized agent. The party attempting to serve the defendant by mail can choose to mail the process by regular mail as well, and if the defendant refuses to accept or claim the registered or certified copy, and the regular mail copy is not returned, then service is considered effectuated.
Pennsylvania allows for a defendant to be served via personal service by handing a copy to the defendant or by delivering a copy to an adult family household member at the defendant’s residence. Pennsylvania also permits service of process by mail. Process can be served by mail requiring a signature of the defendant. If the mail is unclaimed, alternative service must be attempted.
Reprinted courtesy of White and Williams attorneys
Robert Devine,
James Burger and
Susan Zingone
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Burger may be contacted at burgerj@whiteandwilliams.com
Ms. Zingone may be contacted at zingones@whiteandwilliams.com
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Bad Faith Claim For Independent Contractor's Reduced Loss Assessment Survives Motion to Dismiss
January 28, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe insured's bad faith claim based upon the insurer's alleged use of an independent contractor to assess the amount of loss in order to lower the amount paid survived a motion to dismiss. Williamson v. Chubb Indem. Ins. Co., 2013 U.S. Dist. LEXIS 178022 (E.D. Pa. Dec. 19, 2013).
The insureds' home was damaged. Chubb, their insurer, retained an independent contractor, Eastern Diversified Services (EDS) to assess the amount of loss. EDS estimated the loss to be $193,270.43, and Chubb paid this amount.
Chubb's standard practice was to conduct damage estimates itself using an estimating program called Symbility. EDS used a different program with a data base creating lower payments for loss. When this was brought to Chubb's attention, Chubb refused to recalculate the plaintiff's estimate.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Alleging Property Damage in Construction Defect Lawsuit
September 14, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhen there is a construction defect lawsuit, there is an insurance coverage issue or consideration. As I have said repeatedly in other articles, it is all about maximizing insurance coverage regardless of whether you are the plaintiff prosecuting the construction defect claim or the contractor(s) alleged to have committed the construction defect and property damage. It is about triggering first, the insurer’s duty to defend, and second, the insurer’s duty to indemnify its insured for the property damage.
The construction defect claim and lawsuit begins with how the claim and, then, lawsuit is couched knowing that the duty to defend is triggered by allegations in the lawsuit (complaint). Thus, preparing the lawsuit (complaint) is vital to maximize the insurer’s duty to defend its insured.
In a recent opinion out of the Eleventh Circuit, Southern-Owners Ins. Co. v. MAC Contractors of Florida, LLC, 2020 WL 4345199 (11th Cir. 2020), a general contractor was sued for construction defects in the construction of a custom home. A dispute arose pre-completion and the owner hired another contractor to complete the house and remediate construction defects. The contractor’s CGL insurer originally provided a defense to the general contractor but then withdrew the defense and filed an action for declaratory relief asking for the declaration that it had no duty to defend the contractor because the underlying lawsuit did NOT allege property damage. The trial court agreed with the contractor and granted summary judgment in its favor finding that the underlying complaint did not allege property damage beyond defective work. But, on appeal, the Eleventh Circuit reversed.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Safety, Technology Combine to Change the Construction Conversation
September 30, 2019 —
Neil Riddle & Brent Burger - Construction ExecutiveNew technologies are redefining how to plan, build and deliver the full spectrum of construction projects. Automation, software and new processes are changing the construction industry in unprecedented ways, and construction management is evolving along with it. Construction companies are adapting—using innovative tools and resources, joined by more aggressive risk management and decision-making methods. All the while, safety remains at the heart of every successful new build.
Envisioning the Modern Job Site
Productivity has increased by leaps and bounds as processes have gotten faster and cheaper. Twenty years ago, the industry looked completely different— a $500 million project would have taken four years to deliver; today, it can be done in 29 months.
These new projects are becoming incredibly complex as new technologies change the size and scope, giving rise to more specialization and fragmentation. Building projects faster with fewer people requires a whole new level of preparation. This is where advanced planning and advanced work packaging can play a big role—by informing exactly how the material is going to arrive, how it will be staged, how it will be fabricated and how the area can be best managed to deliver the work.
Reprinted courtesy of
Neil Riddle & Brent Burger, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Riddle may be contacted at RiddleRN@bv.com
Mr. Burger may be contacted at BurgerBB@bv.com
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