Massachusetts Business Court Addresses Defense Cost Allocation and Non-Cumulation Provisions in Long-Tail Context
March 06, 2022 —
Eric B. Hermanson & Austin D. Moody - White and WilliamsA business court in Massachusetts has weighed in on two key issues affecting allocation of insurance coverage for long-tail liabilities in Massachusetts. Specifically, in Crosby Valve LLC et al. v. OneBeacon America Insurance Company, et al.,
[1] involving asbestos bodily injury claims, Judge Kenneth Salinger of the Suffolk County Business Litigation Session addressed:
- whether defense costs in long-tail cases were subject to the same pro rata allocation scheme the Supreme Judicial Court (SJC) adopted to govern successively triggered insurers' indemnity obligations in Boston Gas Company v. Century Indemnity Company;[2] and
- whether “non-cumulation” provisions, like those addressed by the New York Court of Appeals in Matter of Viking Pump,[3] were consistent with this pro rata allocation methodology.
As to the first issue — i.e., allocation of defense costs — Judge Salinger declined to follow Boston Gas, and found the SJC’s holding in that case was limited to an insurers’ indemnity obligations. The SJC in Boston Gas had focused on the language of the policy insuring agreement, saying “[t]his policy applies to ... property damage ... which occurs anywhere during the policy period.” The SJC had also pointed to the policy definition of “occurrence” as “an accident, including injurious exposure to conditions, which results, during the policy period, in property damage neither expected nor intended from the standpoint of the insured.”
[4]
Reprinted courtesy of
Eric B. Hermanson, White and Williams LLP 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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Recent Developments in Legislative Efforts To Combat Climate Change
October 30, 2023 —
Dominick Weinkam & Robert B. Cimmino - ConsensusDocsGovernments across the United States have been increasingly integrating climate considerations into legislation affecting various sectors of the economy. The construction industry is no exception. Recent legislative developments at various levels of government are reshaping construction practices to mitigate the industries’ greenhouse gas emissions and vulnerability to climate-related risks. These developments include incentivizing eco-friendly construction projects, mandating stricter regulations to reduce carbon emissions, and enhancing building resilience to more severe weather events. Contractors must stay abreast of these developments to ensure compliance with new substantive and administrative requirements to remain competitive in a changing environment.
Funding Greener Construction Projects: The Inflation Reduction Act
The federal Inflation Reduction Act (IRA) enacted in August 2022 marked a significant milestone in the pursuit of greener construction. The IRA is widely considered to be the single largest investment into climate change in history, with potential ripple effects throughout the construction industry. The IRA allocates substantial funds for projects utilizing “low-carbon” materials, with an explicit focus on climate-conscious construction. This initiative aligns with the broader goal of curbing emissions from sectors like steel, concrete, and glass, which have been major contributors to the nation’s carbon footprint.
Reprinted courtesy of
Dominick Weinkam, Watt Tieder and
Robert B. Cimmino, Watt Tieder
Mr. Weinkam may be contacted at dweinkam@watttieder.com
Mr. Cimmino may be contacted at rcimmino@watttieder.com
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Netflix Plans $900M Facility At Former New Jersey Army Base
January 23, 2023 —
The Associated Press (Wayne Parry) - Bloomberg(AP) -- Netflix said Wednesday it plans to build a state-of-the-art production facility at a former Army base at the Jersey Shore that will cost more than $900 million, and create thousands of jobs.
The subscription video streaming company will pay $55 million for a 292-acre site on the former Fort Monmouth military base in Eatontown and Oceanport.
The California-based company plans an additional $848 million worth of investments in 12 sound stages and for other uses related to the film industry.
“We’re thrilled to continue and expand our significant investment in New Jersey and North America,” said Ted Sarandos, the company's co-CEO and chief content officer. “We believe a Netflix studio can boost the local and state economy with thousands of new jobs and billions in economic output, while sparking a vibrant production ecosystem in New Jersey.”
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Bloomberg
Civil Engineers: Montana's Infrastructure Grade Declines to a 'C-'
December 23, 2024 —
American Society of Civil EngineersHelena, MT — The Montana Section of the
American Society of Civil Engineers (ASCE) today released the
2024 Report Card for Montana's Infrastructure, assigning 14 categories of infrastructure a cumulative grade of 'C-', which is on par with the national average from the
2021 Report Card for America's Infrastructure. This is a one-notch decrease from the 'C' grade Montana received in its last report in 2018, citing increasingly severe weather events putting strain on aging and underfunded assets, and one of the fastest growing populations requiring expansions of transportation, water and energy infrastructure.
The report includes the first-ever chapter on Montana's broadband infrastructure, assigning an 'I' grade for 'incomplete' due to a lack of sufficient condition data; however, the chapter does note that 71% of Montana residents have access to adequate broadband service, and the IIJA provided nearly $630 million to expand this access across the state.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Philadelphia Proposed Best Value Procurement Bill
December 08, 2016 —
Wally Zimolong – Supplemental ConditionsAn opinion piece in today’s Philadelphia Inquirer concerning proposed legislation that would change the way the City of Philadelphia awards public construction projects is causing quite a stir. The article concerns legislation that would allow the City to award public construction contracts based on a “best value” approach rather than the current requirement that the contract be awarded to the lowest responsible and responsive bidder. The author worries that by removing the current objective criteria and replacing it with subjective ones, contracts can be steered to politically favored contractors. The author cites the recent no-bid contract awarded to a law firm run by the friend of Mayor Jim Kenney as an example of the chaos would ensue if this bill was passed.
Considering that the Bill’s sponsor, Bobby Hennon, is under FBI investigation, and some of the Mayor’s biggest supporters are as well, the author has ever right to be concerned. However, article comes up short in explaining what the Bill says and what best value procurement, if adopted, would mean for public construction work in Philadelphia.
First, the Bill that Councilman Hennon is proposing is actually a Bill that would make the best value procurement question a ballot question next November. In other words, the Bill, if passed, would but to a City wide vote the question of whether the City should change it procurement practices to permit the best value approach to be used in addition to the low bid approach that is current used.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Newmeyer & Dillion Announces New Partner Bahaar Cadambi
May 06, 2019 —
Newmeyer & DillionProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that Newport Beach attorney Bahaar Cadambi has been elected to partnership.
"Bahaar has worked hard to become an integral part of the firm's litigation practice, delivering exceptional value to her colleagues and clients at every opportunity," said the firm's Managing Partner, Paul Tetzloff, "We are proud to count her among our partners and look forward to her continued success and contributions."
Cadambi concentrates her practice in business, insurance, and real estate litigation. She represents businesses, homebuilders, developers, and general contractors in complex, multi-party real estate, construction defect, and insurance disputes. She also represents individuals and businesses across a variety of business litigation matters. Her approach to litigation ensures that clients are informed of all potential strategies, the consequences of those strategies, and how the implementation of those strategies will affect their business.
Passionate about the legal community, Cadambi is an adjunct professor at the University of Southern California Gould School of Law and an active member of CREW (Commercial Real Estate Women Orange County). She is also a Barry's Bootcamp and yoga enthusiast, lover of all things interior design, avid traveler, devoted wife, and favorite aunt to two energetic nieces and one cheerful nephew.
Bahaar earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California, Hastings College of Law. Prior to joining Newmeyer & Dillion, she served as a Judicial Extern for the Honorable William Alsup in the U.S. District Court for the Northern District of California.
Bahaar Cadambi: bahaar.cadambi@ndlf.com
Practice Areas
- Business Litigation
- Construction Litigation
- Insurance Law
About Newmeyer & Dillion
For almost 35 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, privacy & data security 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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Anti-Concurrent, Anti-Sequential Causation Clause Precludes Coverage
February 26, 2015 —
Tred R. Eyerly – Insurance Law HawaiiWhere the building was damaged by both a covered cause and a non-covered cause, the policy's anti-concurrent/anti-sequential causation clause barred coverage for a collapsed building. Ashrit Realty LLC v. Tower Nat'l Ins. Co., 2015 N.J. Super. Unpub. LEXIS 107 (N.J. Super. Ct. App. Div. Jan. 20, 2015).
The property sustained moderate damage during a storm on August 14, 2011. More extensive damage was caused by Hurricane Irene two weeks later. After the hurricane, a large hole formed due to the collapse of a pipe which ran underneath the property. Once the pipe collapsed, leaking water caused substantial soil erosion, which led to the collapse of the rear portion of the building.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Be Proactive, Not Reactive, To Preserve Force Majeure Rights Regarding The Coronavirus
March 30, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are involved in construction, NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus. Things are beginning to drastically change on a minute-by-minute basis. From travel restrictions, to the suspension or cancellation of events on an international level, to company-wide policies and restrictions, the global uncertainty has led to the possibility that a force majeure delay will occur. Thinking otherwise is not being proactive. The Coronavirus, and the impacts / delays associated therewith, is beyond anyone’s control. Due to the uncertainty, it is hard to fathom at this time a reasonable challenge to someone’s reaction to this concern or their companywide response to the concern.
If you are a contractor, subcontractor, or even a supplier, my suggestions would be as follows:
- Revisit your contracts and see what type of force majeure language it has – anything relating to delays beyond your control or epidemics;
- Examine to see whether you have a basis for additional compensation AND additional time;
- Examine what type of notice you are required to provide for force majeure events;
- Be proactive – send notice now of the potentiality that this pandemic can impact / delay the job –no one should take offense to this letter as this pandemic has impacted all walks of life;
- If an impact occurs, send follow-up notice accordingly to ensure rights under the contract are preserved; and
- For future contracts, incorporate language that specifically addresses epidemics and pandemics now that the occurrence of this issue has become real.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
