FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?

June 15, 2017 — Anthony J. Carucci - Snell & Wilmer Real Estate Litigation Blog
In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer to compromise is explained in section 998(c)(1):

If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.

Cal. Code Civ. Proc. § 998(c)(1) (emphasis added). The Basic Requirements for a Valid 998 Offer Pursuant to section 998(b), a 998 offer must satisfy three principal conditions: (1) it must be contained in a writing; (2) it must state the terms and conditions of the proposed judgment or award; and (3) it must contain a provision allowing the offeree to accept the offer by signing a statement to that effect. Cal. Code Civ. Proc. § 998(b). Read the court decision
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Reprinted courtesy of Anthony J. Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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Texas contractual liability exclusion

May 18, 2011 — CDCoverage.com

In 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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Reprinted courtesy of CDCoverage.com

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Coverage Doomed for Failing Obtain Insurer's Consent for Settlement

January 22, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Fourth Circuit affirmed the district court's determination that there was no duty to indemnify after the insured settled without consent of the insurer. Perini/Tompkins Joint Venture v. ACE American Ins. Co., 2013 U.S. App. LEXIS 24865 (4th Cir. Dec. 16, 2013). The insured, a joint venture, was hired as manager for the construction of a $900 million hotel and convention center. OCIP and excess policies were obtained through ACE. The project was also insured by a Builders Risk Policy through Factory Mutual Insurance Company. During construction, a rod eroded, causing the atrium to collapse. Substantial property damage occurred and the completion of the project was delayed for several months. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Insurer Obligated to Cover Preventative Remediation of Construction Defects

November 06, 2013 — CDJ STAFF
A recent Texas construction defect case gets covered on a blog post on the web site of Manatt, Phelphs & Phillps, LLC. In the case, the home builder built homes using EIFS which later had problems with mold, mildew, and structural damage. The home builder remediated all of the homes in the project, not just those that had experienced problems with the EIFS.The home builder’s insurers refused to cooperate. Various insurers settled with the home builder, leaving only Markel America Insurance Company. Markel refused coverage on the grounds that proactively replacing the EIFS to preclude damage meant that there was no damage for their policy to cover. The policy also read that “no insured, except at their own cost, [may] voluntary make any payment, assume any obligation, or incur any expense,” unless Markel agreed to it. But the Texas Supreme Court ruled that “Markel failed to prove that it was prejudiced in any way by the home builder’s settlements,” which was a necessary condition for the cited clause. The Texas Supreme Court ruled that Markel was obligated to indemnify the home builder. The court also concluded that the damage occurred during the coverage period and that “all 465 houses at issue suffered property damage during the policy period.” Read the court decision
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XL Group Pairs with America Contractor’s Insurance Group to Improve Quality of Construction

November 13, 2013 — CDJ STAFF
Insurers XL Group and America Contractor’s Insurance Group have teamed up to use “Big Data” to help their clients maintain quality in construction. “Quality is the second leading cause of subcontractor defaults, and one of the biggest areas of profit loss for a General Contractor,” said Jason LaMonica, the profit center head for XL Group’s Subcontractor Default business. ACIG says that their methods “allow us to correlate their quality assurance programs with actual claims results.” ACIG will be adding XL Group’s data to their own, which will allow contractors to “implement best practices leading to continuous improvement in their quality assurance program.” Read the court decision
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Pennsylvania Court Extends Construction Defect Protections to Subsequent Buyers

December 20, 2012 — CDJ STAFF
The Pennsylvania courts have long held that there is an implied warranty of habitability for the initial purchaser of a home. Now, as some defects may not immediately show up, the court has extended that implied warranty to second and subsequent purchasers. As Marc D. Brookman, David I. Haas, and Christopher Bender of Duane Morris note, “this judicially created doctrine shifts the risk of a latent defect in the construction of a new home from the purchaser to the builder-vendor.” The Pennsylvania Supreme Court concluded that a contractual relationship is not needed for an implied warranty of habitability. The court’s concern was inequalities would result when a home was sold while other homes were protected by being within the statute of repose. Read the court decision
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Perez Broke Records … But Should He Have Settled Earlier?

February 19, 2024 — Sofya Uvaydov & John F. Watkins - Kahana Feld
In 2021, Mark Perez’ Labor Law 240(1) lawsuit made legal news by breaking the record of the highest appellate-sustained pain and suffering award in New York history. While that record was short-lived, it still maintains its place as New York’s highest-ever pain and suffering award for a brain injury. This January 17th, the Appellate Division, First Department revisited the litigation but, this time, in a dispute between Perez and his then-lawyer, Ben Morelli and the Morelli Law Firm. Mr. Perez claims breach of contract over a 10% additional contingency fee charge related to the Perez v. Live Nation appeal and breach of fiduciary duty by his counsel in failing to convey settlement offers during the lifetime of the case. The Morelli firm counters, among other things, that the prior settlement offers – a $30 million offer during the 2019 trial and intermediate sums during the appellate stage – were still lower than the ultimate $55 million settlement. No harm, Mr. Morelli argues, and thus no foul in failing to convey the offers. But is that so? Did Mark Perez ultimately receive more money in his $55 million settlement than from the $30 million settlement offer mid-trial? Despite the glaring $25 million difference, the surprising calculations show that Perez would have been financially better off taking the $30 million mid-trial settlement. Reprinted courtesy of Sofya Uvaydov, Kahana Feld and John F. Watkins, Kahana Feld Ms. Uvaydov may be contacted at suvaydov@kahanafeld.com Mr. Watkins may be contacted at jwatkins@kahanafeld.com Read the court decision
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Southern California Super Lawyers Recognizes Four Snell & Wilmer Attorneys As Rising Stars

July 15, 2019 — Snell & Wilmer
Snell & Wilmer is pleased to announce that four attorneys in the Orange County and Los Angeles offices have been selected for inclusion in the 2019 Southern California Rising Stars list. Steffi Gascón Hafen, Estate Planning and Probate Hafen is a Certified Specialist in Estate Planning, Trust and Probate Law, California Board of Legal Specialization. Her practice is concentrated in tax, trust, and estate matters with emphasis in estate planning, trust and probate administration, and estate and gift taxation. Irina Ling, Tax Ling's practice is concentrated in estate planning and taxation matters. She has experience assisting clients with all aspects of estate and tax planning, including advising clients on various charitable giving devices and business succession. Irina also assists clients with estate and gift tax issues, property tax issues, and probate and trust administration. Joshua Schneiderman, Mergers and Acquisitions Schneiderman advises clients on a wide range of transactional matters, including mergers and acquisitions, joint ventures and public and private offerings of debt and equity securities. He advises clients on matters related to franchising, including the establishment of new franchise systems and the expansion of existing franchise systems nationally and internationally. Jeffrey Singletary, Business Litigation Singletary concentrates his practice on business litigation in state and federal courts. He represents clients in matters involving breach of contract, business competition torts, real estate, public and private construction projects, and various intellectual property litigation matters, including trademark, trade dress, trade secret and patent claims. Read the court decision
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