California Supreme Court Finds that When it Comes to Intentional Interference Claims, Public Works Projects are Just Different, Special Even
April 20, 2017 —
Garret Murai - California Construction Law BlogEarlier, we reported on a California Court of Appeals decision – Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. – which held for the first time that a second-place bidder on a public works contract could sue a winning bidder who failed to pay its workers prevailing wages, under the business tort of intentional interference with prospective economic advantage.
Fast forward nearly two years, several amicus briefs, and “one doghouse”* later and the California Supreme Court has . . . reversed.
The Roy Allan Slurry Seal Case
To catch you up, or rather, refresh your recollection . . .
Between 2009 and 2012, American Asphalt South, Inc. was awarded 23 public works contracts totaling more than $14.6 million throughout Los Angeles, Orange, San Bernardino and San Diego counties. Two of the losing bidders on those projects – Roy Allan Slurry Seal, Inc. and Doug Martin Contracting, Inc. – sued American in each of these counties for intentional interference with prospective economic advantage as well as under the Unfair Practices Act (“UPA”) (Bus. & Prof. Code §§ 17000 et seq.) and the Unfair Competition Law (“UCL”) (Bus. & Prof. Code §17200).
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Business Risk Exclusions Do Not Preclude Coverage
November 13, 2013 —
Tred Eyerly — Insurance Law HawaiiThe court rejected the insurer's arguments that the business risk exclusions barred coverage for a contractor. Gen. Cas. Co. of Wisconsin v. Five Star Bldg. Corp., 2013 U.S. Dist. LEXIS 134122 (D. Mass. Sept. 19, 2013).
Five Star was hired by the University of Massachusetts to upgrade the ventilation (HVAC) system on a portion of a building. The large majority of the work involved work in the interior of the building, but a small portion required installation of duct work and supports on top of the roof of the complex. Five Star also penetrated the roof at numerous locations to install supports for duct work and other rooftop structures for the ventilation system. Other subcontractors then secured supports to the concrete roof deck and installed permanent patches where Five Star had penetrated the roofing system.
On same days, Five Star could not accomplish the process in a single day after penetrating the roof. It would install temporary patches until the next day. This was the only work on the roof performed by Five Star.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Cal/OSHA ETS: Newest Version Effective Today
January 17, 2022 —
Amy R. Patton, Matthew C. Lewis & Rana Ayazi - Payne & FearsThe newest version of the Cal/OSHA ETS goes into effect today, Jan. 14, 2022, and will expire on April 15, 2022. A redline of the recently expired Cal/OSHA ETS and the newest Cal/OSHA ETS is available HERE. The newest Cal/OSHA ETS, which was drafted prior to Dec. 16, 2021, is already partially out-of-date based on the California Department of Public Heath’s Guidance For the Use of Masks (released Jan. 5, 2022) and the CDPH’s Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public (released Jan. 8, 2022); these changes have been addressed in the Cal/OSHA ETS FAQs.
With all of these changes occurring (not to mention all of the litigation surrounding the now-stayed federal OSHA ETS), California employers are asking: How do I comply with the current Cal/OSHA ETS and the updated CDPH Guidance? Here are the key points to ensure you are in compliance:
- New Shorter Isolation and Quarantine Periods
Isolation: When an employee has COVID-19 (even without symptoms).
- Day 0: First day of symptoms or the day a positive test specimen was collected. Begin isolation.
- Day 1: First full day after symptoms developed or positive test specimen was collected.
- Day 5: Recommended day to take COVID-19 test.
Reprinted courtesy of
Amy R. Patton, Payne & Fears,
Matthew C. Lewis, Payne & Fears and
Rana Ayazi, Payne & Fears
Ms. Patton may be contacted at arp@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
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Auburn Woods Homeowners Association v. State Farm General Insurance Company
January 11, 2021 —
Michael Velladao - Lewis BrisboisIn Auburn Woods HOA v. State Farm Gen. Ins. Co., 56 Cal.App.5th 717 (October 28,2020) (certified for partial publication), the California Third District Court of Appeal affirmed the trial court’s entry of judgment in favor of State Farm General Insurance Company (“State Farm”) regarding a lawsuit for breach of contract and bad faith brought by Auburn Woods Homeowners Association (“HOA”) and property manager, Frei Real Estate Services (“FRES”) against State Farm and the HOA’s broker, Frank Lewis. The parties’ dispute arose out of the tender of two different lawsuits filed against the HOA and FRES by Marva Beadle (“Beadle”). The first lawsuit was filed by Beadle as the owner of a condominium unit against the HOA and FRES for declaratory relief, injunctive relief, and an accounting related to amounts allegedly owed by Beadle to the HOA as association fees. The second lawsuit filed by Beadle was for the purpose of setting aside a foreclosure sale, cancelling the trustee’s deed and quieting title, and for an accounting and injunctive relief against an unlawful detainer action filed by Sutter Group, LP against Beadle. The complaint filed in the second lawsuit alleged that Allied Trustee Services caused Beadle’s property to be sold at auction and that Sutter Capital Group, LP purchased the unit and obtained a trustee’s deed upon sale. Beadle claimed the assessments against her were improper and the trustee’s deed upon sale was wrongfully executed. Beadle sought an order restoring possession of her unit and damages.
The HOA and FRES tendered both lawsuits to State Farm. As respects the first lawsuit, State Farm denied coverage of the lawsuit based on the absence of alleged “damages” covered by the policy issued to the HOA affording liability and directors and officers (“D&O”) coverages. State Farm agreed to defend the HOA under the D&O coverage in the second lawsuit. However, State Farm denied coverage of FRES in both lawsuits as it did not qualify as an insured under the State Farm policy issued to the HOA. Subsequently, the HOA and FRES filed an action against State Farm arguing that a duty to defend was triggered under its policy for the first lawsuit and a duty to defend FRES was also owed under the D&O policy for the second lawsuit. After a bench trial, the trial court entered summary judgment in favor of State Farm based on the failure of the first lawsuit to allege damages covered by the State Farm policy under the liability and D&O coverages afforded by the policy. As respects the second lawsuit, the trial court held that FRES did not qualify as an insured and State Farm did not act in bad faith by refusing to pay the HOA’s alleged defense costs in the second lawsuit before it agreed to defend the HOA against such lawsuit.
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Michael Velladao, Lewis BrisboisMr. Velladao may be contacted at
Michael.Velladao@lewisbrisbois.com
Business Interruption, Food Spoilage Claims Resulting from Off Premise Power Failure Denied
June 02, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer denied the insured restaurant's claim for food spoilage and loss of business income when a flood elsewhere caused a power outage. N. Spy Food Co., LLC v. Tower Nat'l. Ins., 2016 N.Y. Misc. LEXIS 1033 (N.Y. Sup. Ct. March 22, 2016).
Tower denied the claim based on an investigation which revealed that the claims resulted from an off premises power failure. The utility company verified that the cause of the power failure was due to flood, a cause excluded under the policy. The food loss and business interruption, therefore, did not result from direct physical loss or damage by a covered cause, justifying the denial of the claim.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Florida District Court Finds That “Unrelated” Design Errors Sufficient to Trigger “Related Claims” Provision in Architects & Engineers Policy
March 02, 2020 —
Jason Taylor - Traub LiebermanMost professional liability polices include some form of a “related claims” provision that generally provides where two or more claims or wrongful acts are causally or logically related, they will be deemed to constitute a single claim. Importantly, these provisions typically provide that those “claims” are then deemed to have been “first made” at the time the first claim or act was committed for purposes of the policy’s claims-made and reporting requirements. Understandably, these provisions provide insurers and insureds with some clarity over the number and timing of claims that could involve multiple errors or omissions, and potentially aggregate all related claims or acts into a single policy period. While reasonable in principle, application of such provisions, especially involving large scale design and construction projects, is not always so easy.
Nova Southeastern University, Inc. v. Continental Cas. Co., 18-cv-61842 (S.D. Fla. Dec. 27, 2019), involved such an insurance coverage dispute with a design project gone wrong. DeRose Design Consultants, Inc. (“DeRose”) was hired as a structural engineer to design “ice tanks” to store and chill water for an energy efficient air conditioning facility constructed on the campus of Nova Southeastern University (“NSU”). An early water test on one of the tanks determined the walls of the ice tank deflected, leaked, and cracked when the tank was filled with water. DeRose later discovered that the problems with the ice tank were caused by a structural design error.
The first errors were discovered in early 2009, and reported under DeRose’s professional liability policy with Evanston. DeRose then created a remedial design to repair the tanks, which involved strengthening repairs. Additional leaking and an early indication of corrosion involving the Remedial Design arose as early as October 25, 2009. Several field investigation reports were prepared in 2011 and 2012 confirming these issues with the Remedial Design. A third report in February 2012, however, identified a new error involving the concrete slab under the ice tanks also designed by DeRose. The third report concluded that the concreate slab was overstressed and could not handle the loads of the ice tanks. The report also concluded, however, that the design defects in the concrete slab were “unrelated” to the original design defect of the ice tank walls or Remedial Design.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Scarce Cemetery Space Creates Prices to Die For: Cities
August 06, 2014 —
Flavia Krause-Jackson – BloombergEven in death, you can’t escape the property bubble.
From New York to London, growing populations are competing with the deceased for land, driving up real-estate costs well into the afterlife. In Asian megacities, where cremation is the norm, even space for urns is in short supply.
“At the end of the day, it’s like any other piece of real estate,” says Amy Cunningham, a New York state licensed funeral director. “Prices have conspired to put burials out of the range of most people’s budgets.”
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Flavia Krause-Jackson, BloombergMs. Krause-Jackson may be contacted at
fjackson@bloomberg.net
Utilities’ Extreme Plan to Stop Wildfires: Shut Off the Power
October 28, 2024 —
Mark Chediak - BloombergA growing number of utilities are resorting to an extreme measure to prevent their equipment from sparking catastrophic wildfires: turning off the power.
Electric companies serving about 24 million homes and businesses across the fire-prone US West now have plans to preemptively cut electricity during dangerous fire conditions, according to an analysis of
data compiled by researchers at Stanford University. The proactive blackouts, however, run counter to the power companies’ main mission — which is to keep the lights on. And that’s angering customers and officials.
Lawsuits — and the
billions of dollars of damage claims that come with them — are an
increasing concern among utilities, said Michael Wara, who leads the Climate and Energy Policy Program at Stanford University.
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Mark Chediak, Bloomberg
