Home Builder Doesn’t See Long Impact from Hurricane
November 07, 2012 —
CDJ STAFFNo one needs to tell Toll Brothers about the impact of Hurricane Sandy. The Wall Street Journal reports that the home building company lost power as a result of the storm. Martin Connor, the company’s CFO, told the Journal that he did not expect the hurricane to have a big effect on sales. Luckily for the company, many of its large projects are either sufficiently completed to provide shelter or too early in the process to be affected by the storm. “This type of weather event has limited impact on the market. It may move settlements later, and may defer people a weekend or two until they go out shopping. But it doesn’t have a long impact.”
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Subsidence Exclusion Bars Coverage for Damage Caused by Landslide
May 23, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe Ninth Circuit affirmed the district court's order granting summary judgment to the insurer who denied coverage based upon the policy's subsidence exclusion. Atain Spec. Ins. Co. v. JKT Associates, 2022 U.S. App. LEXIS 6351 (9th Cir. March 11, 2022).
JKT was hired by Lora Eichner Blanusa in 2011 to perform landscape and hardscape work at her house. After selling the house to Richard Meese, a catastrophic landslide occurred in 2019. Portions of the rear of the property slid downhill by 15 feet. Meese sued JKG and others. The owner of an adjacent property, Kristi Synek, filed a separate action against JKT and others. JKT tendered both suits to Atain, who defended under a reservation of rights.
Atain filed a coverage action in federal district court regarding both underlying suits. The district court granted summary judgment to Atain, ruling there was no duty to defend or to indemnify.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Connecticut Court Clarifies a Limit on Payment Bond Claims for Public Projects
May 15, 2023 —
Bill Wilson - Construction Law ZoneIn All Seasons Landscaping, Inc. v. Travelers Casualty & Surety Co., No. DBD-CV21-6039074-S, 2022 WL 1135703 (Conn. Super. Ct. April 4, 2022) the plaintiff, a subcontractor on a state project, commenced a lawsuit against the surety who issued a payment bond on the project two years after the subcontractor last performed any original contract work on the project. The defendant surety moved to dismiss the action based on the one-year statute of limitation in Connecticut General Statute § 49-42. The plaintiff countered that it complied with that deadline because it also performed warranty inspection work after the contract was completed and within the limitation period in section 49-42. The issue of whether warranty work or minor corrective work can extend the limitations period in section 49-42 had not previously been addressed by a Connecticut court.
Section 49-42(b) governs the limitation period on payment bond claims on public projects. It provides in relevant part that “no … suit may be commenced after the expiration of one year after the last date that materials were supplied or any work was performed by the claimant.” Section 49-42 provides no guidance on what “materials were supplied or any work was performed” by the claimant means, nor is there any direct appellate-level authority in Connecticut on this issue. What is clear under well-established law in Connecticut is that the time limit within which suit on a payment bond must be commenced under Section 49-42 is not only a statute of limitation but a jurisdictional requirement establishing a condition precedent to maintenance of the action and such limit is strictly enforced. If a plaintiff cannot prove its suit was initiated within this time constraint, the matter will be dismissed by the court as untimely.
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
Proposed Legislation for Losses from COVID-19 and Limitations on the Retroactive Impairment of Contracts
July 27, 2020 —
Shaia Araghi - Newmeyer DillionThe COVID-19 pandemic has caused most businesses to temporarily close and, as a result, sustain significant losses. Various states are contemplating the passage of legislation to require carriers to cover claims arising from COVID-19, but case law regarding the constitutionality of such legislation is conflicting. Depending on the facts surrounding retroactive legislation, states may be able to pass an enforceable law leading to coverage.
Pennsylvania’s Proposed Legislation for Business Interruption Losses
Pennsylvania is one of many states that has proposed legislation to override language in business interruption policies and require coverage from insurance carriers. Pennsylvania House Bill 2372 proposes that any insurance policy that covers loss or property damage, including loss of use and business interruption, must cover the policyholder’s losses from the COVID-19 pandemic.1 It applies to insureds with fewer than 100 employees.2 To enhance its chances to pass constitutional challenges, the House Bill also provides for potential relief and reimbursement through the state’s commissioner.3 Pennsylvania Senate Bill 1127 is broader than House Bill 2372 and most bills proposed in other states and would require indemnification for nearly all insureds.4 The Senate Bill makes important legislative findings and notes that insurance is a regulated industry.5 It essentially provides that an insurance policy insuring against a loss relating to property damage, including business interruption, shall be construed to cover loss or property damage due to COVID-19 or due to a civil authority order resulting from COVID-19.1 The proposed bill redefines “property damage” to include: (1) the presence of a person positively identified as having been infected with COVID-19; (2) the presence of at least one person positively identified as having been infected with COVID-19 in the same municipality where the property is located; or (3) the presence of COVID-19 having otherwise been detected in Pennsylvania.
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Shaia Araghi, Newmeyer DillionMs. Araghi may be contacted at
shaia.araghi@ndlf.com
Texas contractual liability exclusion
May 18, 2011 —
CDCoverage.comIn Ewing Construction Co., Inc. v. Amerisure Ins. Co., No. C-10-256 (S.D. Tex. April 28, 2011), insured Ewing was the general contractor for an athletic facility constructed for a school district. The school district sued Ewing alleging defective construction of the project. The underlying complaint included contract and negligence causes of action, and sought damages for the repair of the damages and loss of the use of the project. The complaint did not allege damage to any property other than the project itself. Ewing tendered its defense to its CGL insurer Amerisure. Amerisure denied a defense and Ewing filed suit against Amerisure. The federal district trial court entered summary judgment for Amerisure. Applying Texas law, the court held that all of the damages fell within the “contractual liability†exclusion precluding any duty to defend or indemnify.
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Attorneys Fees Under California’s Prompt Payment Statutes. Contractor’s “Win” Fails the Sniff Test
October 02, 2015 —
Roger Hughes – California Construction Law BlogThis past month, the California Court of Appeals for the Third District, in James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., Case No. C072169 (August 27, 2015), handed down a decision in a construction contract battle that has raged since 2007. And, once again, the winner is . . . in the words of Justice Andrea Lynn Hoch who authored the opinion . . . . “no prevailing party in [the] case” and hence “no prevailing party attorney’s fees [ ] awarded.”
Background
In Harris, subcontractor James L. Harris Painting & Decorating, Inc. (“Harris”) sued general contractor West Bay Builders, Inc. (“West Bay”) for extra work performed on a school construction project in Stockton, California. Among its claims, Harris asserted that West Bay was liable under California’s prompt payment statutes for failure to timely pay Harris.
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Roger Hughes, Wendel Rosen Black & Dean LLPMr. Hughes may be contacted at
rhughes@wendel.com
What The U.S. Can Learn from China to Bring Its Buildings to New Heights
November 15, 2022 —
Marc Gravely - Gravely PC“China’s history is marked by thousands of years of world-changing innovations: from the compass and gunpowder to acupuncture and the printing press. No one should be surprised that China has re-emerged as an economic superpower.” —Gary Locke
Westerners have often criticized China’s ‘creative’ interpretation of the concept of intellectual property, but even its harshest critics recognize the Asian superpower’s ability to build large-scale infrastructure projects at a breakneck pace. America does not want to emulate the absolute government control that has allowed China to build futuristic bridges and airports in record time. However, there are still some things we can learn from our biggest global competitor.
The White House itself has invoked China’s grand achievements in its quest to secure more infrastructure funding from Congress. The administration believes that the only way to compete with China is to spend
at least $2 trillion on upgrading bridges and mass transit, modernizing neighborhoods and airports, and making broadband access universal.
The skylines of China’s largest metropolises are nothing short of mesmerizing. Its grand airports and auditoriums amaze tourists and locals alike. Explore any important Chinese city on Google maps, and you will find a level of modernization in infrastructure that far surpasses American cities of similar size. Scholars have coined the phrase
“China envy” to refer to the effects of this phenomenon.
According to urban planning historian Thomas J. Campanella, China is doing the kind of things America used to do: amazing the world with grand structures that push engineering and architecture forward. The question is, if China has emulated us, can we now emulate China?
China Envy
There are some basic differences between the two nations which make emulation difficult. On the one hand, China has leapfrogged from rudimentary infrastructure to suborbital spaceships and bullet trains. America is at a different stage and moves at a different pace. Chinese leaders don’t need approval from the opposition in Congress; they have total control. If the Chinese administration wants to build a bridge, they just go ahead and do it. Democracy is a bit more complicated, but we naturally welcome the complexities, considering how stifling the political atmosphere is under communist rule.
Another difference some analysts have pointed out is that the current Chinese President and his predecessor both studied engineering, so they were naturally keen on innovation in their field. Meanwhile, U.S. presidents have seldom had such backgrounds. The American public has more often elected lawyers to rule over our nation.
China envy is understandable. Our competitor is home to
49 of the planet’s 100 tallest skyscrapers. It also boasts a million bridges. While the U.S. spends 2.4 percent of GDP on infrastructure,
China spends 8 percent. This was an important selling point for the White House’s ambitious infrastructure plan.
Located in a mountainous region with over 1,500 rivers, China has built bridges of fantastic proportions to keep urban centers and important agricultural areas connected.
The Pingtang Bridge in Guizhou province links two sides of a canyon that are 7,000 feet apart. The spectacular, 7-mile-long Hutong Yangtze River Bridge efficiently provides railway and highway access to Shanghai from Jiangsu province.
As climate change forces us to reevaluate Americans’ preference for private cars and the neglect of our railway systems, the inferior car ownership that was once a disadvantage for China is now an advantage. By 2025, high-speed trains will service
98 percent of Chinese cities. Subways are common in many of them. Today, the country boasts a high-speed rail network totaling more than 23,500 miles, or
eight times the distance between New York and LA. Chinese workers travel on bullet trains at 215 miles per hour, much faster than their American counterparts.
The gap between China and the U.S. when it comes to infrastructure is one of astronomic proportions. A few years ago, Bill Gates announced that China had used as much cement in three years as the U.S. in 100 years. China currently produces 14 times more steel than the U.S. and about 2.2 gigatons of cement per year, roughly half of the
4.5 gigatons our country used in the 20th century. In China, city planners have not focused on short-term return on investment, but on broader societal benefits. For example, World Bank officials were not enamored with the idea of creating a subway in Shanghai; the region’s geology made the project far too complex. The World Bank suggested buses would be a better solution for the city’s transit, but Chinese officials
didn’t listen and went ahead. Thirty years later, the Shanghai subway has become an example of efficiency, transporting more than 10 million people every day. It is as if China followed a different logic, one that often pays off.
According to Mr. Campanella, “We need a bit of China to be stirred into our game. . . We’re over privileging the immediately affected residents. What we don’t do is give requisite weight to the larger society.” China’s modernization has, however, not been without cost. Accelerated construction creates pollution, and not all the country’s massive structures are green or energy efficient. President Xi’s country is conscious about pollution, and it has poured significant resources into green infrastructure projects like wind and solar farms.
There is a boldness in China’s infrastructure planning, a pioneering spirit that we would do well to imitate. What American jurisdiction would spend billions on a new state-of-the-art airport only 50 miles away from a recently modernized one? China has done it in Beijing. In a way, it seems that China is seeing beyond the here and now, planning for tomorrow, and this is something we can learn from our competitors.
Marc Gravely is the founder and lead attorney at Gravely PC and author of Reframing America’s Infrastructure: A Ruins to Renaissance Playbook.
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Trump Abandons Plan for Council on Infrastructure
August 17, 2017 —
Mark Niquette - BloombergPresident Donald Trump will not move forward with a planned Advisory Council on Infrastructure, a person familiar with the matter said Thursday.
The infrastructure council, which was still being formed, would have advised Trump on his plan to spend as much as $1 trillion upgrading roads, bridges and other public works. Its cancellation follows Trump’s announcement Wednesday that he was disbanding two other business advisory panels.
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Mark Niquette, Bloomberg
