What is the Implied Warranty of Habitability?
October 02, 2018 —
Bremer Whyte Brown & O’MearaThe implied warranty of habitability plays an important role in our understanding of the relationship between tenant and landlord; it helps to define the parameters and requirements of contracts between tenant and the owner. In doing so, the implied warranty of habitability is meant to ensure that a home or rental unit is in a livable condition. In this article, we’ll take a look at what the warranty of habitability is, how it developed, and what differentiates the warranty of habitability from the previous landlord-tenant law.
Background of the Implied Warranty of Habitability
When someone hears about the warranty of habitability, their first question is usually “what is the implied warranty of habitability?” This is understandable, given that the implied warranty of habitability isn’t exactly well known. Most renters have probably never heard of the implied warranty of habitability, despite the fact that it provides important safeguards for tenant’s rights. In order to gain a better understanding of what the implied warranty of habitability is, it is helpful to understand what state of affairs existed prior to the adoption of an implied warranty of habitability.
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Bremer Whyte Brown & O’Meara
Pollution Created by Business Does Not Deprive Insured of Coverage
November 26, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe federal district court determined that coverage was properly denied under the pollution exclusion of the policies. Headwaters Resources, Inc. v. Illinois Union Ins. Co., 2014 U.S. App. LEXIS 20060 (10th Cir. Oct. 20, 2014).
Over 400 residents of Chesapeake, Virginia, filed two lawsuits against the insured, Headwaters, alleged property damage and bodily injury due to pollution generated in connection with the development of a golf course. The complaints alleged that between 2002 and 2007, the defendants used 1.5 million tons of toxic fly ash during construction of a golf course. The insured allegedly transported the fly ash to an open pit adjacent to residential neighborhoods. The chemicals from the fly ash leached into the ground water, damaging the private wells. The fly ash pit also released airborne contaminants that produced a strong smell of ammonia. As a result of the alleged contamination, the property values of plaintiffs' homes depreciated and members of the community faced increased risk of serious bodily injuries caused by exposure to the fly ash.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Additional Insured Not Entitled to Indemnity Coverage For Damage Caused by Named Insured
February 23, 2017 —
Tred R. Eyerly – Insurance Law HawaiiThe additional insured unsuccessfully sought to recover damages to its building caused by the named insured. Brit UW, Ltd. v. Tripar, Inc., 2017 U.S. Dist. LEXIS 2462 (N.D. Ill. Jan. 6, 2017).
Davis Russell Real Estate and Management LLC hired Tripar, Inc., a general contractor, to renovate a 12-unit apartment building. The entire roof was to be replaced by a roofing subcontractor. Davis Russell drafted a Professional Services Agreement (PSA) that governed the project. Tripar was to obtain a CGL policy and provide a certificate of insurance evidencing the coverage. Davis Russell was to be named as an additional insured.
Tripar's insurance broker prepared a certificate of insurance reflecting that a CGL policy was issued to Tripar by Brit UW, Ltd. But the certificate clearly stated that it was not issued by the insurer and that it did not alter coverage. The certificate of insurance further stated that it conferred no rights upon the holder.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Insurer's Motion for Summary Judgment to Dispose of Hail Damage Claim Fails
November 25, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court denied the insurer's motion for summary judgment seeking to dismiss the insured's complaint requesting coverage for hail damage and a claim for bad faith. Rodriquez v. State Farm Lloyds, 2024 U.S. Dist. LEXIS 160007 (W.D. Tex. Sept. 5, 2024).
Mr. Rodriquez sought coverage under his homeowners policy after a hail and wind storm damaged his roof. After inspection, State Farm agreed that some minimal loss caused by hail was covered, but determined that the covered loss was less than the amount of the deductible. State Farm further determined that any hail damage to the roof was excluded by an endorsement, Exclusion of Cosmetic Loss to Metal Roof Coverings Caused by Hail. State Farm also determined that some damage was caused by previous faulty workmanship or wear and tear, both of which were excluded from coverage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Triple Points to the English Court of Appeal for Clarifying the Law on LDs
July 01, 2019 —
Vincent C. Zabielski & Julia Kalinina Belcher - Gravel2GavelCan an employer recover liquidated damages (LDs) from a contractor if the contract terminates before the contractor completes the work?
Surprisingly, heretofore, English law provided no clear answer to this seemingly straightforward question, and inconsistent case law over the past century has left a trail of confusion. Given the widespread use of English law in international construction contracts, this uncertainty had gone on far too long.
The good news is that drafters of construction contracts throughout the world can now have a well-deserved good night’s sleep courtesy of the English Court of Appeal’s March 2019 decision in Triple Point Technology, Inc. v PTT Public Company Ltd [2019] EWCA Civ 230.
The Triple Point case concerned the delayed supply by Triple Point (the “Contractor”) of a new software system to employer PTT. The contract provided for payments upon achievement of milestones, however order forms incorporated into the contract set out the calendar dates on which fixed amounts were payable by PTT, resulting in an apparently contradictory requirements on when payment was due. Triple Point achieved completion (149 days late) of a portion of the work milestones, and were paid for that work. Triple Point then sought payment for the work which was not yet completed, relying on the calendar dates in the order forms rather than achievement of milestone payments. Things got progressively worse as PTT refused payment, Triple Point suspended the work for PTT’s failure to pay, PTT terminated the contract and then appointed a new contractor to complete the work.
Reprinted courtesy of
Vincent C. Zabielski, Pillsbury and
Julia Kalinina Belcher, Pillsbury
Mr. Zabielski may be contacted at vincent.zabielski@pillsburylaw.com
Ms. Belcher may be contacted at julia.belcher@pillsburylaw.com
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2011 West Coast Casualty Construction Defect Seminar – Recap
June 01, 2011 —
CDJ STAFF  |
| Event exhibitors and sponsors contribute to an informative and engaging environment |
This year’s meeting was the best yet for the industry-leading construction defect and claims event.
This year’s seminar concluded on May 13, 2011 with the Construction Defect Community Charitable Foundation Golf Tournament, held at Strawberry Farms Golf Course.
The Disneyland Hotel in Anaheim, California was the place where more than 1,500 attendees convened for two days of professional development activities and seminars that included CLE workshops and panel discussions of special interest to legal and insurance professionals concerned with construction defect and claims litigation. Key events included “Challenges for Experts in Construction Defect Claims and Litigation,” “Keeping Up with Construction Defect Coverage,” and “Tips for Avoiding the ‘Perfect Storm’ in Handling of Wrap Claims.”
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| Supporting the golf tournament at the 15th hole |
This year’s Ollie award was given to George D. Calkins II, Esq. The West Coast Casualty Jerrold S. Oliver Award of Excellence was named in honor of the late Judge Jerrold S. Oliver, and recognizes an individual who is outstanding or has contributed to the betterment of the construction community.
In addition to being the most comprehensive professional development seminar in the area of construction defects, this year’s seminar was equally valuable as a networking opportunity for members of the industry. People participated in professional development events during the day and then continued networking in the evening at numerous social events. The Lawn Party as well as the legendary Wood, Smith, Henning & Berman events were very well attended. Additional valuable networking events were hosted by a number of industry professionals at the House of Blues, and Tortilla Joe’s.
As of this writing the 2011, West Coast Casualty's Construction Defect Seminar has applied for or has already received the following continuing education accreditation in the following areas;
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For more information about next year’s event, visit West Coast Casualty.
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Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal
January 24, 2018 —
Tony Carucci – Real Estate Litigation BlogUnder California Code of Civil Procedure section 2033.300, a court may permit a party to withdraw an admission made in response to a request for admission upon noticed motion. The court may only do so, however, “if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Cal. Code Civ. Proc. § 2033.300(b). The court may also “impose conditions on the granting of the motion that are just, including, but not limited to . . . (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” Cal. Code Civ. Proc. § 2033.300(c).
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Tony Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
Reporting Requirements for Architects under California Business and Professions Code Section 5588
December 22, 2019 —
Jordan Golden - Gordon & Rees Construction Law BlogBelow is an overview of the changes to California Business and Professions Code Section 5588 and its effect on the reporting requirements, for architects, in the construction industry.
Section 5588 Prior to 2005 Legislative Changes
Section 5588 of the California Business and Professions Code sets forth the reporting requirements for many business professionals including architects. Since 1979, Section 5588 has required architects and their insurers to report to the California Architect Board (the Board) “any settlement or arbitration award in excess of five thousand dollars ($ 5,000) of a claim or action for damages caused by the license holder’s fraud, deceit, negligence, incompetency, or recklessness in practice.”1
The language of the code section left open for interpretation the question of what types of settlement claims must be reported to the Board. Thus, in 2004, the Attorney General of the State of California published an opinion stating that a reportable settlement includes “any agreement resolving all or part of a demand for money which is based upon an insured architect’s alleged wrongful conduct.”2 He then went on to conclude that the only qualifications placed on the term “claim” for purposes of Section 5588 is that “(1) the demand be premised on the license holder’s alleged ‘fraud, deceit, negligence, incompetency, or recklessness in practice,’ and (2) the value of the claim, as measured by the settlement amount or arbitration award, exceeds $5,000.”3
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Jordan Golden, Gordon & Rees Scully Mansukhani
