Client Alert: Service Via Tag Jurisdiction Insufficient to Subject Corporation to General Personal Jurisdiction
August 27, 2014 —
R. Bryan Martin and Kristian B. Moriarty - Haight Brown & Bonesteel LLPIn Martinez v. Aero Caribbean (No. 3:11-cv-03194-WHA, filed 8/21/2014), the United States Court of Appeals for the Ninth Circuit held service of process on a corporation's officer, within the forum state, does not establish general personal jurisdiction over the corporation unless the corporation's contacts with the forum render it essentially at home in the state.
Decedent, Lorenzo Corazon Mendoza, was traveling by airplane when the plane crashed, killing everyone aboard. Defendant Avions De Transport Régional (ATR) manufactured the airplane that crashed. Plaintiffs Lorenzo Martinez, Eliezer Martinez, Eliu Mendoza and Gloria Montes (Plaintiffs) filed suit against ATR as heirs of decedent.
ATR is a business entity organized under French law with its principal place of business in France. It is not licensed to do business in California, and it has no office or other physical presence there. It has purchased parts from California suppliers, sent representatives to California to promote its business, and advertised in trade publications available in California. It has also sold airplanes to a California corporation. Empire Airlines flies from Santa Barbara to Ontario using ATR planes on a regular basis; however, Empire Airlines purchased the ATR planes secondhand from third parties, and never directly from ATR. At the time of the crash, ATR North America (a wholly owned subsidiary of ATR) had its headquarters in Virginia, and has since relocated to Florida.
Reprinted courtesy of
R. Bryan Martin, Haight Brown & Bonesteel LLP and
Kristian B. Moriarty, Haight Brown & Bonesteel LLP
Mr. Martin may be contacted at bmartin@hbblaw.com; Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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Care, Custody or Control Exclusion Requires Complete and Exclusive Control by Insured Claiming Coverage
July 30, 2019 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn McMillin Homes Construction v. Natl. Fire & Marine Ins. Co. (No. D074219, filed 6/5/19) a California appeals court held that a “care, custody or control” exclusion did not bar coverage for defense of a general contractor as an additional insured under a subcontractor’s policy, because the exclusion requires exclusive control, but the facts and allegations posed a possibility of shared control with the subcontractor.
McMillin was the general contractor on a housing project and was added as an additional insured to the roofing subcontractor’s policy pursuant to the construction subcontract. The homeowners sued, including allegations of water intrusion from roof defects. McMillin tendered to the roofing subcontractor’s insurer, which denied a defense based on the CGL exclusion for damage to property within McMillin’s care, custody or control.
In the ensuing bad faith lawsuit, McMillin argued that the exclusion required complete or exclusive care, custody or control by the insured claiming coverage, which was not the case for McMillin. The insurer argued that the exclusion said nothing about complete or exclusive care, custody or control. Further, the intent to exclude coverage for damage to any and all property in McMillin’s care, custody or control, to whatever degree, was demonstrated by the fact that the additional insured endorsement in question was not an ISO CG2010 form, but a CG2009 form, which expressly adds a care, custody or control exclusion to the additional insured coverage not found in the CG2010 form. The argument was that the CG2009 form evidences an intent to conclusively eliminate coverage for property in the additional insured’s care, custody or control. In addition, the insurer argued that this result was also reinforced by its inclusion of an ISO CG2139 endorsement in the roofer’s policy, which eliminated that part of the “insured contract” language of the CGL form, defining an “insured contract” as “[t]hat part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” The insurer’s argument was that by having eliminated coverage for contractual indemnity or hold harmless agreements, it had “closed the loop” of eliminating additional insured coverage for construction defect claims.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Did You Get a Notice of Mechanic’s Lien after Project Completion? Don’t Panic!
October 20, 2016 —
Christopher G. Hill – Construction Law MusingsSo, you own a piece of property. You decided to have some work done and after what you thought was proper due diligence, you hire a general contractor to build a great office building on the property. Your architect designs the space, you sign the construction contract for a price you find fair and that the bank approves. Construction starts and with a few minor hiccups, a couple of written changes and one minor but slightly annoying change required by the local building inspector, completes relatively on schedule. You write the final check to the general contractor for its final draw and start the process of leasing the space out. All is right with the world as best you can tell.
A month later, you walk to your mailbox and lo and behold, you have a certified mailing containing a notice that the plumbing subcontractor has recorded a mechanic’s lien on your property. After counting to 10 to let the various emotions pass, you call the general contractor to see what is going on. You’re told that there is a dispute regarding a change order about which you knew nothing and that the general contractor feels it is in the right and should not have to pay the money represented in the memorandum of lien so it won’t be paying the subcontractor unless and until it is told to do so by a court or an arbitrator.
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Christopher G. Hill, The Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Packard Condominiums Settled with Kosene & Kosene Residential
August 27, 2014 —
Beverley BevenFlorez-CDJ STAFFResidents of the Packard Condominiums in Indianapolis, Indiana “have settled a two-year-old lawsuit with developer Kosene & Kosene Residential,” according to the Indianapolis Business Journal. The Homeowners association stated that “the agreement would lead to repayment of a construction loan and avoidance of a special assessment on residents.”
The association claimed to have spent “$3 million on ‘renovation and remediation’ of subpar construction of the condo building,” reported the Indianapolis Business Journal.
The article also declared that at least 25 subcontractors participated in the mediation.
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Insurer's Motion in Limine to Dismiss Case for Lack of Expert Denied
June 26, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe court denied the insurer's motion in limine seeking to dismiss the insureds' complaint due to the absence of expert testimony. Fabozzi v. Lexington Ins. Co., 2014 U.S. Dist. LEXIS 74069 (E.D. N.Y. May 30, 2014).
During the policy period, the insureds noticed their house had serious structural problems, including cracks in the walls and floors that were pitched toward the rear of the house. The insureds had to move from their house. When they submitted a claim, it was denied by Lexington because the losses were caused by "wear and tear, deterioration, earth movement, settlement, shrinking, bulging or expansion of the property leading to cracking of structural components."
The insureds sued. Lexington filed a motion in limine to preclude the testimony of the insureds' expert and to dismiss the complaint for inability to offer prima facie proof of a covered loss absent such expert testimony.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Are “Green” Building Designations and Certifications Truly Necessary?
January 28, 2019 —
Christopher G. Hill - Construction Law MusingsAs anyone who reads this construction blog on a regular basis knows, I believe that the move to newer sustainable building practices (while bringing about a new or different set of potential risks) is both necessary and laudable. Because of this fact, you may be asking why the headline for today’s post. After all, I am a LEED AP and assisted in the drafting of the LEED/Green Building addendum to the ConsensusDOCS so I must be pro LEED (or any other) certification of buildings. To the extent that such certification encourages best practices and more sustainable building stock, I am pro certification.
However, certification is not a necessary carrot to bring builders around to such practices. As a recent article in EcoHome Magazine (thanks to Todd Hawkins at BuilderFish for alerting me to the article) points out, companies are already moving toward these practices with or without certification and it’s added layer of expense. Economic, air quality, and moral (“its the right thing to do”) factors are pushing executives to such practices. According to EcoHome Magazine, while LEED retains the lions share of green certifications, more and more companies are either using internal standards or trying out other certification programs, including Energy Star.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Certifying Claim Under Contract Disputes Act
June 08, 2020 —
David Adelstein - Florida Construction Legal UpdatesUnder the Contract Disputes Act (41 USC 7101 en seq.), when a contractor submits a claim to the government in excess of $100,000, the claim MUST contain a certification of good faith, as follows:
For claims of more than $100,000 made by a contractor, the contractor shall certify that–
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the contractor’s knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the contractor.
41 U.S.C. 7103(b)(1). See also 48 C.F.R. s. 33.207(c) as to the wording of the certification.
The contracting officer is not required to render a final decision on the claim within 60 days if, during this time period, he/she notifies the contractor of the reasons why the certification is defective. 41 U.S.C. 7103(b)(3). Importantly, the contracting officer’s failure to render a decision within 60 days is deemed an appealable denial.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
In Louisiana, Native Americans Struggle to Recover From Ida
August 07, 2022 —
The Associated Press (Rebecca Santana) - BloombergAlong Bayou Pointe-Au-Chien, La. (AP) -- Driving through her village along a southeastern Louisiana bayou, tribal official Cherie Matherne points out the remnants of house after house — including her own — wrecked nine months ago when Hurricane Ida roared through the Pointe-au-Chien Indian Tribe community.
Beige trailers from the Federal Emergency Management Agency and travel campers sit next to pilings that elevated homes 14 feet (4.3 meters) off the ground to protect them from flooding. But it was the wind that got them this time. For hours, the Category 4 hurricane tore off roofs and siding, ripped out insulation and scattered treasured belongings. It destroyed shrimp boats and tossed crab traps.
“It’s going to take years before people can get back to their lives. The majority of people are still at a standstill,” said Matherne, the tribe’s cultural heritage and resiliency coordinator.
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Bloomberg
