Traub Lieberman Partner Michael K. Kiernan and Associate Brandon Christian Obtain Dismissal with Prejudice in Favor of Defendant
November 27, 2023 —
Michael K. Kiernan & Brandon Christian - Traub LiebermanIn a 14-count breach of contract action brought in the Fifteenth Judicial Circuit in Palm Beach County, Florida, Partner Michael K. Kiernan and Associate Brandon Christian obtained dismissal with prejudice in favor of Defendant St. Joseph’s Episcopal Church of Boynton Beach, Florida (“Church”).
Plaintiffs, St. Joseph’s Episcopal School (“School”) and its benefactor, William Swaney, filed suit to enforce an alleged 99-year oral lease agreement which Swaney asserted had been made to him by a prior rector of the Church in exchange for his contributions to the School. Plaintiffs also sought emergency injunctive relief to allow the School to continue to operate on Church property. The Church maintained in part that the only lease in effect was a written lease, approved by the Church Vestry and the Diocese of Southeast Florida, and which the Church Vestry unanimously voted not to renew in 2022.
Reprinted courtesy of
Michael K. Kiernan, Traub Lieberman and
Brandon Christian, Traub Lieberman
Mr. Kiernan may be contacted at mkiernan@tlsslaw.com
Mr. Christian may be contacted at bchristian@tlsslaw.com
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A Place to Study Eternity: Building the Giant Magellan Telescope
October 15, 2024 —
Jeff Rubenstone - Engineering News-RecordSituated on a remote mountaintop in the Atacama Desert in Chile, the Giant Magellan Telescope will one day allow astronomers to peer further into the universe with a greater degree of clarity than ever before. But siting a highly sensitive instrument with seven massive, 8.4-meter-dia mirrors on a windy peak in one of the world’s most seismically active regions takes careful engineering, especially since the 12-story upper section of the 22-story telescope enclosure will have to rotate 360° with an extreme degree of precision, multiple times a night.
Reprinted courtesy of
Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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California Supreme Court Holds that Requirement of Prejudice for Late Notice Defense is a Fundamental Public Policy of the State for Choice of Law Analysis
November 04, 2019 —
Lorelie S. Masters, Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery BlogCalifornia’s highest court held yesterday in Pitzer College v. Indian Harbor Insurance Co., that the state’s insurance notice-prejudice rule is a “fundamental public policy” for the purpose of choice of law analyses. This unanimous ruling, issued in response to certified questions from the Ninth Circuit, confirms and emphasizes California’s common law rule that policyholders who provide “late notice” may proceed with their insurance claim, absent a showing by the insurer of substantial prejudice. The California Supreme Court also extended the prejudice requirement, holding that a first-party insurer must show that it was prejudiced before denying coverage under a policy’s “consent provision,” which typically provides that the policyholder must obtain the insurer’s “consent” before incurring costs and expenses.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lorelie S. Masters,
Michael S. Levine and
Michelle M. Spatz
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Spatz may be contacted at mspatz@HuntonAK.com
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Housing Starts Rebound in U.S. as Inflation Eases: Economy
August 20, 2014 —
Lorraine Woellert and Victoria Stilwell – BloombergHome construction rebounded in July and the cost of living rose at a slower pace, showing a strengthening U.S. economy has yet to generate a sustained pickup in inflation.
A 15.7 percent jump took housing starts to a 1.09 million annualized rate, the strongest since November, and halted a two-month slide, the Commerce Department said in Washington. The consumer price index increased 0.1 percent after rising 0.3 percent in June, the Labor Department also reported.
An improving job market and cheaper borrowing costs are helping revive residential real estate, helping boost sales at companies such as Home Depot Inc. (HD) As inflation continues to run below the Federal Reserve’s target, it gives the central bank room to keep interest rates low well after the projected end of its bond-buying program in October.
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Lorraine Woellert and Victoria Stilwell, Bloomberg
The Evolution of Construction Defect Trends at West Coast Casualty Seminar
May 03, 2018 —
Don MacGregor - Bert L. Howe & Associates, Inc.Twenty-five years ago. 1993. On January 23rd, Bill Clinton was sworn in as the 42nd President of the United States. The average cost of a gallon of gasoline was $1.16, a movie ticket cost $4.00, and the average cost of a new home was $113,200.00.
1993 also marked the first of what would be a quarter century of annual seminars hosted by West Coast Casualty Service, and provided to the combined professionals within the construction defect community. As the seminar has grown both in attendance and prominence within this community under the watchful stewardship of David and Coral Stern, much has changed both with regard to the content of the seminar and the climate within which it was presented. A quick look at the topics addressed over the past 25 years of the Construction Defect Seminar provides one with a veritable history of construction defect litigation and insurance coverage trends across the United States and beyond.
While the first seminar was hosted in 1993, my first attendance didn’t occur until 1999, and the first time I was honored to be a panelist would have to wait until 2007. In the subsequent years, I’ve had the opportunity to sit on panels an additional three times, and each one I gained rare and valuable insights into the construction defect community, its willingness to challenge itself, and the amazing professionals we all have the distinct pleasure of working with every day (and whom we sometimes take too much for granted).
In the mid to late 90’s, topics at the seminar included such subjects as the Montrose Chemical Corp v. Superior Court decision (Montrose) regarding a carrier’s duty to defend and the subsequent Stonewall Insurance case that examined the duty to indemnify in the context of construction defect claims. The California Calderon Act of 1997, laying out the roadmap for HOA’s filing construction defect lawsuits was also a topic of discussion and debate within the West Coast “arena.”
The new millennium saw the landmark Aas v. William Lyon decision, which disallowed negligence claims for construction defects in the absence of actual resultant damage. This was followed by Presley Homes v. American States Insurance wherein the court ruled that a duty to defend applies where there is mere potential for coverage and the duty to defend applies to the entire action. Each of these bellwether decisions was addressed contemporaneously by panels at the West Coast seminar, contemporaneously bringing additional dialog to the CD community, from within the community.
2002 brought what has become the defining legislation in California regarding construction defect litigation and a builder’s right to repair. Senate Bill 800 (SB800), and its subsequent codification as Title 7, Part 2 of Division 2 of the California Civil Code, Sections 895 through 945.5 would become the defining framework for similar legislation across the United States. During the course of its drafting, movement through the legislature, and final adoption in January of 1993, many of the questions raised and debated in committees in Sacramento, had already been and were continuing to be addressed by panelists at the West Coast Seminar. How does SB800 work with Calderon? How does it affect the prior Aas decision? What now constitutes a defect, and what are timeframes established within the complex pre-litigation process? Open the pages of the 2002 – 2004 seminar invitations and you’ll see panels comprised of the finest members of the insurance law and coverage communities addressing those very questions (and more)!
As the first decade of the new century drew to a close, a brief review of the WCC invitations from that period suggests a trend towards programmatic analyses of key themes selected for the seminar. In 2008, my second opportunity as a guest speaker, topics included a review of the state of construction defect litigation in a post-SB 800 environment. Panelists offered retrospective insight into the state of right to repair statutes in multiple states, while others offered a glimpse at where the industry might be headed, as similar legislation was enacted across the country. As always, pertinent court decisions bearing on construction defect, both in California, and elsewhere were given unique perspective and additional clarity by multiple panels of gifted speakers. In 2009, claims and coverage were examined from multiple unique perspectives, including that of plaintiff, the policyholder, and the insurer. Wrap policies and the gaps in due to self-insured retention obligations were examined.
As we rapidly approach the end of the second decade of the 21st Century, West Coast Casualty’s Construction Defect Seminar continues to lead the construction defect community as the premier source for information and peer dialog on all matters relating to construction law, coverage, and emerging trends. In 2017, the Seminar tackled such broad subjects as the role of women in the construction industry, claims management, and risk management, challenges raised by wrap versus non-wrap litigation, and the emergent trend of apartment to condo conversions (and the attendant coverage challenges).
This month, beginning on May 16th at the Disneyland Resort, in Anaheim California, America’s largest Construction Defect event kicks off its 25th Anniversary celebration. As has been every year since 1993, the seminar invitation promises insurance, legal, and industry professionals an exciting and informative array of salient and timely panel topics, as well as a stellar faculty of gifted panelists. If this year’s seminar is anything like the past 25 years, this edition of West Coast Casualty’s Construction Defect Seminar will not only be informative and educational, but also a promise for another 25 years of peerless service to the construction defect community.
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California Imposes New Disabled Access Obligations on Commercial Property Owners
October 07, 2016 —
Garret Murai – California Construction Law BlogThe following article was written by my colleague
David Goldman on the new ADA accessibility legislation which was signed into law this past month by Governor Brown.
Since July 1, 2013, California Civil Code section 1938 has required commercial property owners to disclose in every commercial lease whether the property being leased has been inspected by a Certified Access Specialist (“CASp”). A CASp is an individual certified by the State of California as qualified and knowledgeable of construction-related access to public accommodations by persons with disabilities. In addition to disclosing whether or not the property being leased has been CASp inspected, if a CASp inspection has occurred, the commercial lessor must disclose in the lease whether the premises has or has not met all the applicable construction-related accessibility standards established by law. These lease requirements, along with other disability access obligations, were discussed in an
earlier article written in 2012.
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Pennsylvania Mechanics’ Lien “Waivers” and “Releases”: What’s the Difference?
March 19, 2015 —
Thomas C. Rogers – White and Williams LLPIn the world of Pennsylvania mechanics’ liens there is much confusion about the interchangeable use of the words mechanics lien “waiver” and mechanics’ lien “release.” Many who work in the world of real estate in Pennsylvania, be they contractors, subcontractors, developers, lenders, or attorneys, use these terms interchangeably without understanding that there is a meaningful difference. Failure to understand the difference creates confusion when discussing issues and drafting documents regarding mechanics’ liens.
In Pennsylvania a mechanics’ lien “waiver” is the pre-construction waiver of liens that was historically executed by a general contractor and an owner and filed with the Prothonotary in the county in which construction is located. These pre-construction lien “waivers,” assuming they were properly prepared, signed by the contractor and owner and filed in accordance with applicable law, negated the ability of that contractor and its subcontractors to file a mechanics’ lien on the subject property. These pre-construction lien “waivers” were part of every construction loan closing up through the amendments to the Pennsylvania Mechanics’ Lien Act that went into effect in 2007. Since 2007, the Mechanics’ Lien Act has been amended twice to further address those circumstances in which pre-construction lien waivers still have vitality. Except with respect to those narrow situations specifically provided for in the statute, pre-construction lien “waivers” are against public policy in Pennsylvania.
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Thomas C. Rogers, White and Williams LLPMr. Rogers may be contacted at
rogerst@whiteandwilliams.com
Legal Matters Escalate in Aspen Condo Case
January 28, 2014 —
Beverley BevenFlorez-CDJ STAFFOn January 3rd of this year, Chad Abraham reported in the Aspen Daily News that the Ute City building—a condominium on Hopkins Avenue in Aspen, Colorado—“lacks proper entryways to apartments and a basement-level nightclub space for both tenants and the disabled.”
The owners, Michael Sedoy and Natalia Shvachko, have been sued by the city after refusing “to allow access to an eastside staircase and elevator for other building residents and disabled patrons of a basement restaurant,” according to the Aspen Daily News. “Their stance has forced the other tenants and the disabled to use a westside, alleyway service entrance, according to the city.”
Sedoy and Schvachko’s attorney retorts in court documents “that the city approved of a building map and declarations that allow access through the westside entry in the alley.”
Furthermore, in another article by Abraham published in the Aspen Daily News on January 25th, he relates that the owners had filed more than “more than 30 noise complaints with the police and the city’s environmental health department about eateries and bars around their home on Restaurant Row. That led to a trial for the Aspen Brewing Co., which a jury acquitted in about 10 minutes last week.”
In addition, the couple is being sued by Mountain Home Window Fashions, the Ute City building general contractor. According to the lawsuit as reported by the Daily Aspen News, Mountain Home claims they are owed $12,332. The owners have counter-sued, alleging “that there were defects in Mountain Home Window Fashions’ work” and that one of the employees “made unauthorized charges on Sedoy’s credit card.”
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