Charles Carter v. Pulte Home Corporation
October 12, 2020 —
Michael Velladao - Lewis BrisboisIn Carter v. Pulte Home Corp., __Cal.App.5th__(July 23, 2020), the California Court of Appeal affirmed the entry of judgment in favor of subcontractors in connection with a Complaint for Intervention based on equitable subrogation filed by Travelers Property Casualty Company of America (“Travelers”) seeking to recover defense costs incurred in defending Pulte Home Corporation (“Pulte”) in an underlying construction defect lawsuit. The parties’ dispute arose out of Travelers’ defense of Pulte as an additional insured under policies issued to four subcontractors involved in the underlying construction defect lawsuit. Several subcontractors involved in the underlying construction defect lawsuit refused to defend Pulte based on the indemnity clauses in their subcontracts. Such clauses promised to indemnify Pulte as follows:
“all liability, claims, judgments, suits, or demands for damages to persons or property arising out of, resulting from, or relating to Contractor’s performance of work under the Agreement (“Claims”) unless such Claims have been specifically determined by the trier of fact to be the sole negligence of Pulte. . . .”
Pulte eventually settled the construction defect lawsuit and its claims against all of the subcontractors. Travelers ultimately paid $320,491.82 for Pulte’s defense and recovered $164,400 from some of the subcontractors. Travelers’ intervention in the underlying lawsuit was intended to recover the remaining $156,091.82 from the subcontractors that refused to indemnify Pulte for the defense of the construction defect lawsuit. In the underlying trial, Travelers argued that the subcontractors were obligated to pay defense costs on a joint and several basis (minus what Travelers had already recovered). The trial court did not agree and held that Travelers was not entitled to equitable subrogation for the remaining defense costs.
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Michael Velladao, Lewis BrisboisMr. Velladao may be contacted at
Michael.Velladao@lewisbrisbois.com
DEP Plan to Deal with Noxious Landfill Fumes Met with Criticism
March 19, 2014 —
Beverley BevenFlorez-CDJ STAFFResidents of Roxbury, New Jersey have dealt with hydrogen sulfide fumes coming from the Fenimore landfill, which gives off a rotten-egg smell and many say have “made them or their children sick,” according to New Jersey Online. The Department of Environmental Protection (DEP) announced their plan to fix the situation, which is to “first dig more wells at Fenimore, to help feed noxious gasses into the oxidizer and scrubber system the agency has credited with radically reducing smells over the last several months.”
But no one seems to be satisfied with the plan, according to New Jersey Online: “Not state Sen. Anthony R. Bucco, who authored a bill to enable a state takeover of the site last year. Not the Roxbury Township Council. Not the activist group created to respond to Fenimore issues. Not one of the state's most vocal environmental organizations. And not the site's owner, who has been in multi-pronged litigation with the state for months.”
Roxbury’s mayor, Jim Rilee, stated, “The council and I will continue to demand that the DEP show us compelling data that supports its conclusions and that its plan is based only on what is best for Township residents," as quoted by New Jersey Online.
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ABC, Via Construction Industry Safety Coalition, Comments on Silica Rule
February 18, 2020 —
Rachel O'Connell - Construction ExecutiveThe Construction Industry Safety Coalition (CISC) has responded to OSHA’s request for information regarding changes to the “Occupational Exposure to Respirable Crystalline Silica – Specified Exposure Control Methods Standard,” also known as the silica rule. Specifically, OSHA requested comments in mid-August on potential changes to Table 1, which designates compliance actions for a range of conditions and tasks exposing workers to respirable crystalline silica.
CISC, comprised of 26 members including Associated Builders and Contractors, has formally requested that OSHA expand compliance options. “Expanding Table 1 and otherwise improving compliance with the rule is of paramount importance to member associations and contractors across the country,” CISC tells OSHA Principal Deputy Loren Sweatt. “Based upon feedback from contractors, both large and small, compliance with the rule remains challenging.”
Reprinted courtesy of
Rachel O'Connell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Hydrogen—A Key Element in the EU’s Green Planning
December 07, 2020 —
Matthew Oresman & Henrietta Worthington - Gravel2Gavel Construction & Real Estate Law BlogGettyImages-1150744671-300x225Hydrogen is gaining global recognition for its potential as a key player in the energy transition. Investors and businesses are exploring opportunities across multiple sectors, including energy, manufacturing, transport and finance. According to a report by Bloomberg, the current pipeline for global hydrogen projects is worth an estimated $90 billion. The EU is not going to be left behind, with a focal point of its Green Deal being on hydrogen.
The EU’s executive branch (the European Commission or EC) has confirmed its commitment to increasing hydrogen projects across the bloc, with a priority on green hydrogen. Its Hydrogen Strategy, released in March, states that hydrogen is “essential to support the EU’s commitment to reach carbon neutrality by 2050 and for the global effort to implement the Paris Agreement while working towards zero pollution.”
The EU’s executive branch (the European Commission or EC) has confirmed its commitment to increasing hydrogen projects across the bloc, with a priority on green hydrogen. Its Hydrogen Strategy, released in March, states that hydrogen is “essential to support the EU’s commitment to reach carbon neutrality by 2050 and for the global effort to implement the Paris Agreement while working towards zero pollution.”
Reprinted courtesy of
Matthew Oresman, Pillsbury and
Henrietta Worthington, Pillsbury
Mr. Oresman may be contacted at matthew.oresman@pillsburylaw.com
Ms. Worthington may be contacted at henrietta.worthington@pillsburylaw.com
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A Riveting (or at Least Insightful) Explanation of the Privette Doctrine
May 02, 2022 —
Garret Murai - California Construction Law Blog“The wheels of justice turn slowly, but grind exceedingly fine” – Plutarch
And grind they do . . . slowly. For long time readers of the California Construction Law Blog you may recall a case we reported on over three years ago in 2018 – Sandoval v. Qualcomm Incorporated – a rather sad case about a severely injured employee of an electrical subcontractor with an even more surprisingly ending.
In Sandoval, the 4th District Court of Appeals affirmed a $7 million judgment against project owner Qualcomm Incorporated in which a jury found that Qualcomm was liable under the Privette doctrine for injuries sustained by the employee who was severely burned over one third of his body by an “arc flash” from a live circuit breaker. The Court of Appeals, in a surprising decision, upheld the verdict holding that Qualcomm was liable even through: (1) Qualcomm had informed the electrical subcontractor that certain live circuit breakers were energized; (2) Qualcomm had not authorized the lower-tiered contractor to remove a panel that resulted in the arc flash; and (3) employees of Qualcomm were not in the room when the accident happened.
Fast forward three years to September 2021. Qualcomm attorneys petition the California Supreme Court for review of the Court of Appeal’s decision. And the Supreme Court granted review.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Indiana Appellate Court Allows Third-Party Spoliation Claim to Proceed
August 01, 2023 —
Ryan Bennett - The Subrogation StrategistIn Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et al, No. 22A-CT-1924, 2023 Ind. App. LEXIS 157, the Court of Appeals of Indiana (Appellate Court) reversed a trial court ruling that granted the motion to dismiss filed by Michaelis Corporation (Michaelis), a restoration company. The Appellate Court ruled that the trial court erred in dismissing the plaintiff’s spoliation and negligence claims against Michaelis, who discarded evidence relating to the cause of the fire at issue.
The plaintiff’s insured owned a home in Indianapolis, Indiana. On Halloween night in 2019, a fire occurred at the property. The plaintiff’s representatives preliminarily determined that the fire may have been caused by a digital dehydrator within the kitchen. Michaelis had a representative present at the site inspection and was allegedly told to preserve the kitchen area. That area was taped off with “caution” tape. Michaelis also placed a tarp over the kitchen to prevent weather damage. Despite the instructions and precautions, Michaelis demolished the kitchen and discarded the dehydrator along with other fire debris.
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Ryan Bennett, White and Williams LLPMr. Bennett may be contacted at
bennettr@whiteandwilliams.com
Colorado Court of Appeals Decides the Triple Crown Case
January 17, 2014 —
Berkeley W. Mann, Jr. – Higgins, Hopkins, McLain & Roswell, LLCIn an earlier blog post, I discussed the case of Triple Crown Observatory Village Assn., Inc. v. Village Homes of Colorado, Inc., et al (2013 WL 5761028) because it presented the rare case where the Colorado Court of Appeals accepted an interlocutory appeal. Notably, the interlocutory appeal resulted from dismissal of the HOA case in which the trial judge directed the parties to arbitrate in lieu of a jury trial, under the declaration of covenants, conditions, and restrictions that governed the community. The Court of Appeals decided the case on its merits on November 7, 2013, and its decision can be found at 2013 WL 6502659. (Note: this presently unpublished opinion may be subject to further appeal to the Colorado Supreme Court.)
The case resulted from an attempt by the HOA’s counsel to amend the mandatory arbitration provisions of the declarations before it filed suit. This amendment process took the form of soliciting signature votes of homeowners on a revocation resolution to repeal the specific provisions of the declarations that provided mandatory, binding arbitration as the sole remedy for disputes between the HOA and the developer and/or general contractor. The declarations required that 67% of homeowners vote in favor of amendment in order to modify the declarations.
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Berkeley W. Mann, Jr., Higgins, Hopkins, McLain & Roswell, LLCMr. Mann may be reached at
mann@hhmrlaw.com
Louis "Dutch" Schotemeyer Returns to Newmeyer Dillion as Partner in Newport Beach Office
September 14, 2020 —
Louis "Dutch" Schotemeyer - Newmeyer DillionProminent business and real estate law firm Newmeyer Dillion is pleased to announce that Louis “Dutch” Schotemeyer has rejoined the firm as a partner in the Newport Beach office. Schotemeyer will expand the firm’s Real Estate Litigation, Construction Litigation, Business Litigation and Labor & Employment practices and strengthen the firm’s legal offerings for companies operating without a dedicated in-house legal counsel.
“We are thrilled to be welcoming Dutch back to Newmeyer Dillion. He brings a wealth of litigation experience and has served as a trusted advisor to companies facing myriad complex legal disputes,” said the firm’s Managing Partner, Paul Tetzloff. “His experience as in-house counsel will greatly complement Newmeyer Dillion’s business-first mindset when it comes to providing legal counsel to our clients. He is an invaluable asset to the team.”
Prior to rejoining Newmeyer Dillion, Schotemeyer was Vice President and Associate General Counsel for William Lyon Homes, Inc. and Vice President and Deputy General Counsel for Taylor Morrison. His experience as a corporate attorney has strengthened his ability to work with in-house counsel and serve as a relationship attorney that assists clients in managing legal needs by building the right team of legal specialists.
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Louis "Dutch" Schotemeyer, Newmeyer DillionMr. Schotemeyer may be contacted at
dutch.schotemeyer@ndlf.com
