Contractor Changes Contract After Signed, Then Sues Older Woman for Breaking It
September 03, 2015 —
Beverley BevenFlorez-CDJ STAFFChannel 13 Who TV reported, in Winterset, Iowa, Mary Gregory allegedly signed an estimate for hail damage repair to her home, and was later told by the contractor that it was a contract. When a crew showed up to her home to perform the work, she turned them away. Then, Gregory received a letter from an attorney demanding eight thousand dollars for breach of contract.
It turns out that the contractor altered the estimate Gregory signed and submitted it to the insurance company. According to Who TV, the altered estimate “contained work that Gregory says she didn’t authorize and a price tag of $32,134.” Jim Nelle, the contractor, admitted that he added to the contract after it was signed. He claims he was only trying to help her.
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COVID-19 Business Interruption Lawsuits Begin: Iconic Oceana Grill in New Orleans Files Insurance Coverage Lawsuit
April 20, 2020 —
Jeffrey J. Vita & William S. Bennett - Saxe Doernberger & Vita, P.C.On Monday, the iconic New Orleans restaurant, Oceana Grill, filed the first Coronavirus-related business interruption insurance coverage lawsuit in a US jurisdiction. The declaratory judgment action styled Cajun Conti, LLC, et. al. d/b/a Oceana Grill v. Certain Underwriters at Lloyd’s, London was filed in Louisiana state court for the Parish of Orleans. As a direct result of the government-mandated closures and restrictions on public gatherings implemented by the City of New Orleans and State of Louisiana, Oceana Grill’s petition anticipates a significant loss of business income.
Based on allegations in the petition, there are several aspects of Oceana Grill’s policy that make this a good test case for business interruption coverage stemming from the Coronavirus. Although the specific policy language is not quoted in the petition, coverage provisions are categorically identified throughout.
As a preliminary matter, the policy at issue appears to be written on an “all risks” basis, meaning the insuring agreement of the policy would likely be triggered generally by all risks of “physical loss or damage” unless specifically excluded. This basis for coverage, which is common in property policies, is advantageous to policyholders, as it limits the insured’s burden of proof to establishing that there was physical loss or damage while leaving the burden of applying any more specific exclusion to the insurance company.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at jjv@sdvlaw.com
Mr. Bennett may be contacted at wsb@sdvlaw.com
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A Look Back at the Ollies
May 03, 2018 —
Beverley BevenFlorez-CDJ STAFFThe Jerrold S. Oliver Award of Excellence, also known as the “Ollie” award, is presented to “an individual who is outstanding or has contributed to the betterment of the construction defect community.” West Coast Casualty asks members of the construction defect community to nominate those they feel are deserving of the award, and then members vote for one of four nominees. The award is presented at the West Coast Casualty Seminar. Those recognized receive a plaque and a donation in the winner’s name to Habitat for Humanity as well as a local California and Nevada charity.
Jerrold S. Oliver was a “’founding father’ in the alternate resolution process in construction defect claims and litigation. His loyalty and commitment to this community were beyond mere words as he was a true believer in the process of resolution.”
Past Award Winners:
1996 - Awarded to Ross R. Hart, Esq. (Mediator - American Arbitration Assoc.)
1997 - Awarded to Merv Thompson, Esq. (Mediator in private practice)
1999 - Awarded to Tom Craigo, (Adjuster - C.N.A. Insurance Company)
2000 - Awarded to Kristi Cole, (Adjuster - Safeco Insurance Company)
2001 - Awarded to Karen Rice, (Claims Manager - ACE / USA)
2002 - Awarded to Stephen Henning, Esq. (Wood, Smith, Henning and Berman, LLP)
2003 - Awarded to Ross Feinberg, Esq. (Feldscott, Lee, Feinberg, Grant and Mayfield LLP)
2004 - Awarded to Janet Shipes (Adjuster – C.N.A. Insurance Company)
2005 - Awarded to Edward Martinet (Expert – MC Consultants)
2006 - Awarded to Hon. Victoria V. Chaney (Judge – Los Angeles Superior Court)
2007 - Awarded to Bruce Edwards, Esq. (Mediator) JAMS
2008 - Awarded to Gerald Kurland, Esq. (Mediator) JAMS
2009 - Awarded to Keith Koeller, Esq. (Koeller, Nebecker, Carlson and Haluck, LLP)
2010 - Awarded to Terry Wolcott – (Construction Defect Manager – Travelers Ins. Co.)
2011 - Awarded to George Calkins, Esq. (Mediator) JAMS
2012 - Awarded to Joyia Greenfield, Esq. (Lorber, Greenfield and Polito, LLP)
2013 - Awarded to Margee Luper (Claim Manager – XL Insurance Group)
2014 - Awarded to Matt Liedle, Esq. (Liedle, Lounsbery, Larson & Lidl, LLP)
2015 - Awarded to Robert A. Bellagamba, Esq. (Special Master/Mediator, Castle & Dekker)
2016 - Awarded to Lisa Unger, (Senior Claims Examiner, Global Management Liability Markel)
2017 - Awarded to Caryn Siebert, (Vice President, Claims, Knight Insurance Group)
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Get Smarter About Electric Construction Equipment
October 24, 2022 —
CONEXPO-CON/AGGMILWAUKEE – Sustainability in the construction industry is being advanced by the public and private sectors. Governments are adopting more clean-air regulations at local and regional levels and companies are adopting sustainability policies and asking partners to help them meet their targets.
Consequently, many manufacturers have already developed – or are in the process of developing – electric-powered construction equipment to meet increasing emissions regulations, provide efficiency improvements, and lower operating costs. All electric, electric/hydraulic, and battery-operated versions rival their diesel and gas counterparts in performance, notes
Joel Honeyman, Vice President of Global Innovation at
Bobcat.
THE CHANGING INDUSTRY
“People say electric machines are not going to perform as well as a diesel machine,” Honeyman observes. “That is simply not true. In many cases they can outperform them.”
“Many people are so used to what they have and are afraid of new technology. Some companies have been running diesel- and gas-powered equipment for 40, 50 years. Hydraulics have been on equipment for 80 years. Adjusting to an electric-powered machine is quite a paradigm shift.”
About the Association of Equipment Manufacturers (AEM)
AEM is the North America-based international trade group representing off-road equipment manufacturers and suppliers with more than 1,000 companies and more than 200 product lines in the agriculture and construction-related industry sectors worldwide. The equipment manufacturing industry in the United States supports 2.8 million jobs and contributes roughly $288 billion to the economy every year.
About CONEXPO-CON/AGG
Held every three years, CONEXPO-CON/AGG is the must-attend event for construction industry professionals. The show features the latest equipment, products, services and technologies for the construction industry, as well as industry-leading education. The next CONEXPO-CON/AGG will be held March 14-18, 2023 in Las Vegas, Nevada. For more information on CONEXPO-CON/AGG, visit https://www.conexpoconagg.com. Learn more about
excavator tech here.
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Another Municipality Takes Action to Address the Lack of Condominiums Being Built in its Jurisdiction
March 12, 2015 —
Heather M. Anderson – Higgins, Hopkins, McLain & Roswell, LLCWhether you are in the market to downsize or are looking to be a first time home buyer, you have likely noticed that your housing options in Colorado have become extremely limited over the course of the last several years. If you are a contractor and have worked on multi-family projects in the recent past, you know why the housing options are limited in the State of Colorado. In the past two years, there have been studies commissioned and articles published in local periodicals investigating the extreme slowdown seen in the construction of owner-occupied multi-family housing, namely condominiums and townhomes. Those of us involved in and with the construction industry are intimately familiar with the lengthy, complicated, and incredibly expensive construction defect litigation that has plagued multi-family construction in the State of Colorado and brought it to a virtual halt.
And now, local municipalities and elected officials are starting to take notice. Most recently, the City of Lone Tree passed Ordinance No. 15-01, to become effective on April 1, 2015. According to the City of Lone Tree, Ordinance No. 15-01 is “aimed at encouraging the development of owner-occupied, multi-family residential projects through the adoption of regulations designed to balance the risk and exposure to builders and developers of such projects, while still protecting homeowners from legitimate construction defect claims.”
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Heather M. Anderson, Higgins, Hopkins, McLain & Roswell, LLCMs. Anderson may be contacted at
Anderson@hhmrlaw.com
Third Circuit Court of Appeals Concludes “Soup to Nuts” Policy Does Not Include Faulty Workmanship Coverage
December 11, 2018 —
Timothy Carroll - White and Williams LLPEarlier this month, in Frederick Mutual Insurance Company v. Hall, the U.S. Court of Appeals for the Third Circuit concluded that coverage for faulty workmanship claims is “simply not the kind of coverage insurance agents and insurance companies expect to provide” to construction industry professionals “unless the insured explicitly requests such coverage.” 2018 U.S. App. LEXIS 31666, at *9 (3d Cir. Nov. 8, 2018). In Hall, a stone masonry contractor was sued by its customer for causing over $350,000 in property damage resulting from “substandard and defective work” performed on the customer’s residence. The insurer sought a declaration that it owed neither a defense nor indemnity for those damages because, under Pennsylvania law, the policy did not cover property damage caused by faulty workmanship.
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Timothy Carroll, White and Williams LLPMr. Carroll may be contacted at
carrollt@whiteandwilliams.com
Texas Supreme Court Finds Payment of Appraisal Award Does Not Absolve Insurer of Statutory Liability
April 19, 2021 —
Allison Griswold & Sarah Smith - Lewis BrisboisThe Texas Supreme Court recently published its long-awaited decision in the Hinojos v. State Farm Lloyds. In it, the court affirmed its holding in Barbara Technologies, finding that payment of an appraisal award does not absolve an insurer of statutory liability when the insurer accepts a claim but pays only part of the amount it owes within the statutory deadline, and a policy holder can proceed with an action under the Texas Prompt Payment of Claims Act.
In 2013, Louis Hinojos made a claim for storm damage to his home. State Farm’s initial inspection resulted in an estimate below the deductible, but Hinojos disagreed and requested a second inspection. At the second inspection, the adjuster identified additional damage resulting in a payment to Hinojos of $1,995.11. Hinojos then sued State Farm – and State Farm invoked appraisal approximately 15 months after suit was filed. The appraisal resulted in State Farm tendering an additional payment of $22,974.75. State Farm moved for summary judgment, arguing that timely payment of an appraisal award precluded prompt payment (or Chapter 542) damages. The trial court granted summary judgment and Hinojos appealed (notably Barbara Technologies had not yet been decided). The Court of Appeals affirmed State Farm’s victory on the basis that “State Farm made a reasonable payment on Hinojos’s claim within the sixty-day statutory limit….” Hinojos petitioned the Texas Supreme Court for review.
Reprinted courtesy of
Allison Griswold, Lewis Brisbois and
Sarah Smith, Lewis Brisbois
Ms. Griswold may be contacted at Allison.Griswold@lewisbrisbois.com
Ms. Smith may be contacted at Sarah.Smith@lewisbrisbois.com
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When is Forum Selection in a Construction Contract Enforceable?
September 29, 2021 —
Christopher G. Hill - Construction Law MusingsIf there is one mantra that is repeated often here at Construction Law Musings, it is that your construction contract will be strictly construed and Virginia Courts will enforce the provisions as written. This rule includes forum selection clauses. For those that aren’t attorneys, this means that absent a statute to the contrary, the parties can pick the location of any litigation or arbitration by contract. However, the timing of signing that contract makes a difference as a relatively recent Eastern District of Virginia case points out.
Marathon Res. Mgmt Grp v. C. Cornell, Inc. examined what happens when work is performed by one party to the contract prior to the execution of the written contract that contains the forum selection provision. In this case, the defendant C. Cornell, Inc. obtained a default judgment in Texas for non-payment by Marathon for painting and cleaning of rooms at Texas A & M University for work invoiced on August 22, 2017, and September 11, 2017. Upon receipt of the garnishment from the Texas Court, Marathon sued C. Cornell in Virginia state court and the defendant removed the case to federal court. Marathon alleged two separate breaches of contract, the first was that C. Cornell violated the forum selection clause of a Master Services Agreement (“MSA”) executed on September 23, 2017. The second was a violation of another clause of the MSA that barred direct communication with any of Marathon’s customers. The second breach was alleged to be by virtue of the garnishment summons to one of Marathon’s customers.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
