How Artificial Intelligence Can Transform Construction
February 22, 2021 —
Jeff Rubenstone - Engineering News-RecordArtificial intelligence and machine-learning algorithms have struggled to make sense of chaotic construction jobsites, but recent years have seen industry firms build the vast data lakes and analytics systems necessary for these machines to provide useful advice on how to plan, schedule and execute projects. In some cases, these AI advisors have become a standard part of some firms’ project delivery methods. But it’s still a challenge to convince construction professionals to listen to these AI advisors, and there are emerging questions of how risk will be allocated once algorithm-driven decisions start to steer projects.
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Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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No Additional Insured Coverage for Subcontractor's Work Outside Policy Period
August 19, 2015 —
Tred R. Eyerly – Insurance Law HawaiiIn a dispute between two insurers, the district court determined that the contractor was not an additional insured under the subcontractor's policy. Navigators Spec. Ins. Co. v. St. Paul Surplus Lines Ins. Co., 2015 U.S. Dist. LEXIS 79338 (N. D. Cal. June 17, 2015).
McDevitt & McDevitt Construction Corporation was the general contractor for construction of a condominium complex. McDevitt was insured by Navigators Specialty Insurance Company. F&M was a subcontractor for the project for providing structural steel components. F&M's subcontract required it to obtain liability insurance and name McDevitt as an additional insured under a policy that was to be primary. F&M secured a policy with North American Capacity Insurance Company (NAC) which included an endorsement for additional insureds. The endorsement provided that an entity could be an additional insured only with respect to "occurrences resulting from work performed by you during the policy period, or occurrences resulting from the conduct of your business during the policy period."
McDevitt and F&M were sued for construct defect claims. Navigators defended McDevitt and NAC defended F&M. Navigators tendered McDevitt's defense to NAC because McDevitt was an additional insured under NAC's policy. NAC disclaimed coverage.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Defect Litigation at San Diego’s Alicante Condominiums?
March 25, 2011 —
Alicante HOA WebsiteAccording to recent posts in the Alicante HOA website, construction experts and legal counsel have been retained. The HOA board has been informed that testing of a variety of the building’s components are underway or will begin in the near future.
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Pennsylvania Court Finds that Two Possible Causes Can Prove a Product Malfunction Theory of Liability
September 29, 2021 —
Gus Sara - The Subrogation StrategistIn Allstate Ins. Co. v. LG Elecs. USA, Inc., No. 19-3529, 2021 U.S. Dist. LEXIS 127014, the United States District Court for the Eastern District of Pennsylvania considered whether plaintiff’s expert engineer’s opinion that there were two possible causes of a fire—both related to alleged product defects within a refrigerator manufactured by the defendant—was sufficient to support the malfunction theory of products liability. The court found that because both potential causes imposed liability on the product manufacturer and the expert ruled out misuse of the product, as well as all external causes of the fire, it was not necessary for the engineer to identify a specific cause under the malfunction theory. The court also found that the expert’s investigation and opinions met the criteria set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and the Federal Rules of Evidence and, thus, were admissible.
LG Electronics arose from a fire at the home of Thomas and Lisa Ellis. The public sector fire investigator identified the area of fire origin as the top of a refrigerator manufactured by LG Electronics USA, Inc. (LG). The Ellises filed a claim with their homeowner’s insurance carrier, Allstate Insurance Company (Insurer). Insurer retained a fire investigator and an electrical engineer to investigate the origin and cause of the fire. The fire investigator agreed with the public sector investigator that the fire originated at the top of the refrigerator. The engineer conducted a forensic inspection of the scene and ruled out all potential external ignition sources. He then examined the internal components of the refrigerator. He found arcing activity on a wire at the front top of the refrigerator. He opined that there were two possible causes of the fire: either the heater circuit insulation failed over time due to mechanical damage, or the heat from the internal light fixture ignited combustible components of the refrigerator. Since the engineer ruled out improper use of the refrigerator, he opined that the damage was caused by a manufacturing defect.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?
August 06, 2019 —
William L. Porter - Porter Law GroupThe “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Non-Responsibility will not prevent enforcement of a California Mechanics Lien.
The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.
The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
New York Court Discusses Evidentiary Standards for Policy Rescission Based on Material Misrepresentation
August 10, 2020 —
Robert S. Nobel - Traub LiebermanOn July 27, 2020, in the case of Mt. Hawley Ins. Co. v. AKI Renovations Group, Inc., (Sup. Ct. NY Co. 2020), Index No. 159421/2017 (unpublished), the trial court issued an Order granting summary judgment permitting rescission of a CGL policy based upon material misrepresentations in a policy application. The insured submitted an application in which it failed to disclose its demolition operations despite specific questions seeking this information. Mt. Hawley issued a primary and excess policy for the period of December 29, 2016 to December 29, 2017 (collectively, the policy).
Subsequently, the insured sought coverage for a claim in which it was alleged that the insured was acting as a general contractor for demolition of a three-story building when the plaintiff was injured. The insurer advised the defendants that it was rescinding the policy ab initio, and also returned defendants’ premium in its entirety. The insurer asserted that it would not have issued the policy had defendants disclosed their demolition operations, then filed the coverage action seeking a judicial declaration ratifying its rescission of the policy.
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Robert S. Nobel, Traub LiebermanMr. Nobel may be contacted at
rnobel@tlsslaw.com
When it Comes to COVID Emergency Regulations, Have a Plan
December 07, 2020 —
Christopher G. Hill - Construction Law MusingsAs I hope readers of this construction corner of the “blogosphere” know, Virginia adopted emergency COVID workplace regulations effective July 27, 2020, and with enforcement beginning at the end of September. Among the various items found in these regulations are general requirements for all employers, including among others, the requirement to self determine the employer’s risk level and disinfecting requirements. The regulations also have some requirements that seem specially directed toward construction industry employers. These include among them engineering controls and various requirements relating to communications with subcontractors. For a good overview of these requirements, see this great post at the Virginia Bar Association’s construction law blog.
One item that is not included in the emergency regulations is a statement that following the regulations immunizes an employer from COVID infection-related lawsuits. For this reason, among others, all construction (and other industry) employers should have a COVID plan that meets the requirements of these regulations at whatever “hazard level” that employer meets. These plans should be written and distributed to all employees and include protocols for workplace/job site screening and what to do if there is a need for contact tracing. I also highly recommend that any plan be created with the help of a good Virginia workplace safety consultant well versed in the COVID regulations.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Nader Eghtesad v. State Farm General Insurance Company
September 28, 2020 —
Michael Velladao - Lewis BrisboisIn Eghtesad v. State Farm Gen. Ins. Co., 51 Cal.App.5th 406 (June 29, 2020), the California Court of Appeal reversed the trial court’s entry of judgment in favor of State Farm General Insurance Company (“State Farm”) based on an order sustaining a demurrer without leave to amend regarding a complaint filed by Nader Eghtesad. Mr. Eghtesad, representing himself, filed a form complaint checking a box for breach of contract. The complaint alleged two paragraphs contending that State Farm had acted in bad faith and concealed benefits due under a policy issued to a former tenant who rented space in a building owned by Eghtesad. Eghtesad was an additional insured under the tenant’s policy. In that regard, the building was damaged during the time that the building was rented and Eghtesad tendered a claim under the State Farm policy contending that he was an additional insured pursuant to the terms of the lease with the tenant. According to Eghtesad, State Farm advised him that he could only make a claim for slander against the former tenant and that coverage was not afforded for his property damage claim.
After Eghtesad filed his form complaint, State Farm demurred to the complaint and argued that it did not state facts supporting a cause of action for breach of contract. Ultimately, the trial court agreed with State Farm and entered an order sustaining the demurrer without leave to amend, such that a judgment was entered in State Farm’s favor. Due to health reasons, Eghtesad was never able to file an opposition to the demurrer, despite two extensions of time provided by the trial court intended to allow Eghtesad time to retain counsel and to recover from injuries sustained as a result of an automobile accident.
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Michael Velladao, Lewis BrisboisMr. Velladao may be contacted at
Michael.Velladao@lewisbrisbois.com
