Pennsylvania Supreme Court’s Ruling On Certificates Of Merit And “Gist Of Action” May Make It More Difficult For An Architect Or Engineer To Seek An Early Dismissal
January 07, 2015 —
Jerrold P. Anders and Michael W. Jervis - White and Williams LLPIn Bruno v. Erie Ins. Co., the Pennsylvania Supreme Court clarified the gist of the action doctrine that distinguishes between tort and contract claims. In doing this, the Court also ruled that a Certificate of Merit in a professional liability claim is necessary only if the plaintiff is in a direct client relationship with the licensed professional. This clarification of the Certificate of Merit requirement may limit the ability of architects and engineers to obtain an early dismissal in lawsuits.
Bruno v. Erie Ins. Co. involves a common scenario. The Brunos filed a claim with their homeowners’ insurer after discovering mold in their home during remodeling. The policy included an endorsement providing coverage for mold. As part of the claim adjustment, Erie hired an engineer to inspect the mold and to provide an opinion on its severity to determine the extent of remediation required. The engineer hired by Erie reported to Mr. Bruno that the mold was harmless, that concern over health problems due to mold was merely a “media frenzy,” and that the Brunos should continue with their renovations.
Reprinted courtesy of
Jerrold P. Anders, White and Williams LLP and
Michael W. Jervis, White and Williams LLP
Mr. Anders may be contacted at andersj@whiteandwilliams.com
Mr. Jervis may be contacted at jervism@whiteandwilliams.com
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Is A Miller Act Payment Bond Surety Bound by A Default or Default Judgment Against Its Principal?
February 08, 2021 —
David Adelstein - Florida Construction Legal UpdatesMaguire-O’Hara Construction, Inc. v. Cool Roofing Systems, Inc., 2020 WL 6532852 (W.D. Oklahoma 2020) is an interesting case dealing with suretyship law and the subject of whether a Miller Act payment bond surety is bound by a default or default judgment against its prime contractor (bond principal).
In this case, a subcontractor sued a prime contractor for breach of contract and the contractor’s Miller Act payment bond surety for a breach of the payment bond. The prime contractor did not respond to the lawsuit and the subcontractor obtained a default against the contractor. The Miller Act payment bond surety did engage counsel to defend itself in the dispute. Prior to trial, the subcontractor moved in limine to preclude the surety from raising defenses at trial under the subcontract because a default was entered against the prime contractor. The subcontractor argued that the surety should be bound by the default and, therefore, precluded from raising liability defenses under the subcontract. Such a ruling would leave the surety no defenses disputing liability at trial.
[A] suretys’ liability under the Miller Act coincides with that of the general contractor, its principal. Accordingly, a surety [can] plead any defenses available to its principal but [can]not make a defense that could not be made by its principal.
Maguire-O’Hara Construction, supra, at *2 (internal citations and quotations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
N.J. Appellate Court Applies Continuous Trigger Theory in Property Damage Case and Determines “Last Pull” for Coverage
November 15, 2017 —
K. Alexandra Byrd – Saxe Doernberger & Vita, P.C.The New Jersey Superior Court, Appellate Division, published an important decision addressing several fundamental issues regarding how a commercial general liability (CGL) policy applies to long-term property damage. The court held that: (1) a continuous trigger theory of coverage may be applied to third-party liability claims involving progressive property damage caused by an insured’s allegedly defective work; (2) the “last pull” (i.e., the cutoff point) of the continuous trigger is when the “essential nature and scope” of the property damage first becomes known or could reasonably be known; and (3) the “last pull” is not when the property damage is “attributed” to the insured’s faulty work.
The underlying action in Air Master & Cooling Inc. v. Selective Ins. Co., et al. 1 concerned property damage arising out of the construction of a seven-story, 101-unit condominium building in Montclair, New Jersey. The project’s construction manager hired Air Master & Cooling, Inc. (Air Master) to perform HVAC work on the project, including installing individual HVAC equipment in each resident’s unit from 2005 to 2008. In early 2008, unit owners began complaining about water infiltration and damage to their windows, ceilings, and other portions of their units. The general contractor and developer began assessing the damage and making repairs. Eventually, in April 2010, an expert consultant performed a moisture survey of the roof and discovered 111 areas that were damaged by water infiltration. The expert report indicated that “it [was] impossible to determine when [the] moisture infiltration occurred.”
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K. Alexandra Byrd, Saxe Doernberger & Vita, P.C.Ms. Byrd may be contacted at
kab@sdvlaw.com
Court Addresses When Duty to Defend Ends
August 24, 2020 —
Anthony L. Miscioscia & Margo E. Meta - White and WilliamsThere are certain generally held principles regarding an insurer’s duty to defend. One of these principles is that an insurer has a duty to defend its insured if the complaint states a claim that potentially falls within the policy’s coverage. However, there is a lack of consistency regarding the point at which the insurers’ duty to defend ends. When the only potentially covered claim has been dismissed, must the insurer continue to defend?
Certain jurisdictions, such as Hawaii and Minnesota, have held that an insurer’s duty to defend continues through an appeals process, or until a final judgment has been entered, disposing of the entire case. Commerce & Industry Insurance Company v. Bank of Hawaii, 832 P.2d 733 (Haw. 1992); Meadowbrook, Inc. v. Tower Insurance Company, 559 N.W. 2d 411 (Minn. 1997).
Earlier this week, the U.S. District Court for the Eastern District of Pennsylvania took a different approach to this question in Westminster American Insurance Company v. Spruce 1530, No. 19-539, 2020 U.S. Dist. LEXIS 106534 (E.D. Pa. June 17, 2020) – holding that the trial court’s dismissal of the only potentially covered claim was sufficient to terminate Westminster’s duty to defend.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Margo E. Meta, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Meta may be contacted at metam@whiteandwilliams.com
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Blackstone to Buy Chicago’s Willis Tower for $1.3 Billion
March 19, 2015 —
Hui-yong Yu – Bloomberg(Bloomberg) -- Blackstone Group LP agreed to buy Chicago’s Willis Tower, the second-tallest building in the U.S., and plans to upgrade the retail and observatory space in a bet on growth in the city.
The price was $1.3 billion, a record for a Chicago office building, according to Blackstone executives. The sellers of the 110-story skyscraper, formerly known as Sears Tower, are a group including New York-based investors Joseph Chetrit and Joseph Moinian, and American Landmark Properties Ltd.
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Hui-yong Yu, BloombergMs. Yu may be contacted at
hyu@bloomberg.net
Canada's Ex-Attorney General Set to Testify About SNC-Lavalin Scandal
April 03, 2019 —
Associated Press - Engineering News-RecordTORONTO (AP) — Canada's former attorney general is expected to testify Wednesday about whether she was inappropriately pressured by Prime Minister Justin Trudeau's office to avoid prosecuting a major Canadian engineering company.
Ex-Attorney General Jody Wilson-Raybould has said she wants to tell "her truth" and she will speak at a hearing of the Parliament justice committee.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Comparing Contracts: A Review of the AIA 201 and ConsensusDocs - Part I
March 22, 2018 —
Michael Sams and Amanda Cox – Construction Executive, A publication of Associated Builders and Contractors. All Rights Reserved.Here’s a helpful comparison of and analysis of some important contract sections in the
AIA 201 (2007 and 2017 versions) and
ConsensusDocs (2014 and 2017 versions). While not intended to be all inclusive, this summary comparison of the contract documents will run as a three-part series. Part I covers Financial Assurances, Design Risk, Project Management and Contract Administration. Part II will cover Schedule/Time, Consequential Damages/LDs, Claims and Disputes/ADR. Part III will cover Insurance and Indemnification and Payment.
FINANCIAL ASSURANCES
- What assurances are there that the owner can pay for the project?
- The Contractor should have the right to request and obtain proof that the Owner has funding sufficient to pay for the Work. The provision should also provide that the Contractor may terminate the Contract if the Owner refuses to allow a review of funding documents, or should the Contractor reasonably determine that the Owner does not have sufficient funds to pay for the Work.
Relevant Sections:
- A201 2007 Section 2.2.1; 2017 Section 2.2.1-2.2.2 A201
- 2014 & 2017 ConsensusDocs 200: Section 4.2
AIA:
- Section 2.2.1 A201 2007 & 2017: Both editions require the Owner, upon Contractor’s written request, to provide, “reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract.” Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. If the Owner does not comply, the Contractor may stop work.
- Additionally, A201 2017 Section 2.2.2 awards costs to the Contractor for demobilization and remobilization.
Reprinted courtesy of
Michael Sams , Kenney & Sams and
Amanda Cox, Kenney & Sams
Mr. Sams may be contacted at mpsams@KandSlegal.com
Ms. Cox may be contacted at ajcox@KandSlegal.com
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Address 'Your Work' Exposure Within CPrL Policies With Faulty Workmanship Coverage
December 29, 2020 —
Joseph Reynolds - Construction ExecutiveNew faulty workmanship coverage forms have emerged to potentially address the “your work” exposure found in most contractors professional liability (CPrL) policies. Once offered by only a single carrier, several insurers have recently entered the marketplace to cover the cost to repair or replace faulty work or the related material costs associated with the “self-performed work” of general and trade contractors.
Commonly serving as a separate insuring agreement and offered in carrier-specific CPrL policies, faulty workmanship coverage forms are designed to protect contractors from the “your work” claims triggered by project owners and other third parties. This includes the contractor’s workmanship as well as the equipment, parts and materials such as steel beams, epoxy activators and anchor bolts used to perform construction work.
Insureds should be aware that exclusions and strict conditions apply. For instance, faulty workmanship policies typically do not cover resulting bodily injury and property damage and some policies even exclude project delays and other business risks that can arise from the claims of unhappy customers. Another potentially confusing issue is the scope of coverage offered under a ‘faulty work’ endorsement. While some faulty workmanship enhancements are specifically-designed to cover “your work,” claims, others may only cover the products manufactured or fabricated by the insured and not the work they perform or install.
Reprinted courtesy of
Joseph Reynolds, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Reynolds may be contacted at
joseph.reynolds@rtspecialty.com
