Domtar Update
June 11, 2014 —
Robert M. Caplan – White and Williams LLPOn May 29, 2014, the Pennsylvania Supreme Court granted allocatur—i.e., the permission to appeal—in the controversial subrogation case, Liberty Mutual Ins. Co. v. Domtar Paper Co., 77 A.3d 1282 (Pa. Super. Ct. 2013). In its order granting the relief to Liberty Mutual, a workers’ compensation insurer, the Supreme Court set forth the narrow issue to be decided on appeal: “Does Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured employee to subrogate against the tortfeasor?”
In Domtar, Liberty Mutual was caused to incur approximately $35,000 in compensation benefits which it paid on behalf of George Lawrence, an employee of Liberty Mutual’s insured, for injuries he sustained in a work-related accident. Mr. Lawrence chose not to file an independent personal injury lawsuit. As a result, in order to recover its lien interests, Liberty Mutual sued the third parties responsible for causing Mr. Lawrence’s work-related injuries directly, having become subrogated to the rights of Mr. Lawrence by virtue of Liberty Mutual’s workers’ compensation expenditure on his behalf.
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Robert M. Caplan, White and Williams LLPMr. Caplan may be contacted at
caplanr@whiteandwilliams.com
Traub Lieberman Partner Greg Pennington Wins Summary Judgment in Favor of Property Owner
September 12, 2022 —
Gregory S. Pennington - Traub LiebermanIn a case brought before the Superior Court of New Jersey, Traub Lieberman Partner Greg Pennington won a motion for summary judgment in favor of their client, the owner of a residential property (“Property Owner”) in Atlantic City, New Jersey. The Property Owner had retained a Construction Company (“Construction Company” or “Contractor”) to perform renovations to the residence, which included building a new staircase. The Plaintiff alleged that while walking down a set of temporary wooden steps on the property, the third step broke, which caused him to fall and resulted in the alleged injuries. The Plaintiff brought suit against the Property Owner and Construction Company for personal injuries as a result of the alleged fall.
In the contract between the Property Owner and the Construction Company, it is stated that “[the Contractor] shall be solely responsible for all construction methods and materials and for coordinating all portions of the Work….The Contractor warrants to [the Property Owner] that all materials and equipment incorporated are new and that all work shall be of good quality and free of defects or faults.” The contract continues to state that the Construction Company shall indemnify and hold harmless the Property Owner against all claims, which includes damages, losses, expenses, legal fees and other costs that might arise from the Construction Company’s performance of the work under the contract.
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Gregory S. Pennington, Traub LiebermanMr. Pennington may be contacted at
gpennington@tlsslaw.com
Helsinki Stream City: A Re-imagining Outside the System
August 13, 2019 —
Jenni Ripatti - AEC BusinessModern man lives under the illusion of being the most intelligent being out there. This is the paradox of human nature; we all want to make the best decisions with the knowledge we have at any given time, but on the other hand, our thinking is largely based on how our ancestors organized the world in their time.
Possibly the most tangible example of this in our everyday lives is infrastructure. While there seems to be plenty of candidates offering new solutions to the already existing urban environment, there are not that many looking to challenge the current urban order. Cities are full of talk—but who walks the walk?
Re-imagining Urban Environments
Olli Hakanen, a long-term specialist in re-imagining workspaces and urban environments, has an extensive background in both architecture and consultancy. His latest venture, Respace, aims to address how urban environments are being developed to better suit the needs of their residents as well as the environment. According to the ideology behind Respace, instead of always building something new, often all that is needed is a re-thinking.
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Jenni Ripatti, AEC BusinessAEC Business may be contacted at
info@aec-business.com
“If It Walks Like A Duck . . .” – Expert Testimony Not Always Required In Realtor Malpractice Cases Where Alleged Breach Of Duty Can Be Easily Understood By Lay Persons
April 17, 2019 —
David W. Evans & Renata L. Hoddinott - Haight Brown & Bonesteel LLPIn Ryan v. Real Estate of the Pacific, Inc., et al. (No. D072724, filed 2/26/19), the Fourth Appellate District reversed a trial court’s granting of summary judgment and finding that expert testimony is not required in a professional negligence action where the claimed acts or omissions are within the understanding of a lay person.
Daniel and Patricia Ryan hired Defendants David Schroedl, David Schroedl & Associates, and Real Estate of the Pacific, Inc., doing business as Pacific Sotheby’s International Realty to list, market, and sell their property. During an open house, the Ryans’ neighbor informed Defendant David Schroedl that he planned significant construction on his own property which would impact the Ryans’ property including, but not limited to, building a large addition that would obstruct the property’s westerly ocean view. Schroedl never disclosed this information to the Ryans or to the subsequent purchasers of the Ryans’ property. The day after escrow closed, the new owners’ interior decorator spoke with that neighbor who again explained his extensive remodeling plans.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Renata L. Hoddinott, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com
Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com
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Liability Cap Does Not Exclude Defense Costs for Loss Related to Deep Water Horizon
May 01, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Texas Supreme Court found that Lloyd's endorsement imposing a cap on liability for a joint venture did not exclude coverage for defense costs. Anadarko Petroleum Corp. v. Houston Cas. Co. et al., 2019 Texas LEXIS 53 (Texas Jan. 25 2019j.
Pursuant to a joint venture agreement, Anadarko held a 25% ownership interest in the Macondo Well in the Gulf of Mexico. When the well blew out, numerous third parties filed claims against BP entities and Anadarko. Many of the claims were consolidated into a multi-district litigation (MDL). The MDL court granted a declaratory judgment finding BP and Anadarko jointly and severally liable. BP and Anadarko reached a settlement in which Anadarko agreed to transfer its 25% ownership interest to BP and pay BP $4 billion. In exchange, BP agreed to release any claims it had against Anadarko and to indemnify Anadarko against all other liabilities arising out of the Deepwater Horizon incident. BP did not agree, however, to cover Anadarko's defense costs.
Anadarko had a policy through Lloyd's. The policy provided excess-liability coverage limited to $150 million per occurrence. Lloyd's paid Anadarko $37.5 million (25% of the $150 million limit) based upon Anadarko 25% ownership in the joint venture. Anadarko argued that Lloyd's still owed all of Anadarko's defense expenses, up to the $150 million limit.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Case Remanded for Application of Efficient Proximate Cause Doctrine
November 06, 2013 —
Tred Eyerly — Insurance Law HawaiiThe Florida Court of Appeals remanded the case after the insured was awarded an $8 million dollar judgment against its property insurer for hurricane and other damage to a home. Am. Home Assur. Co. v. Sebo, 2013 Fla. App. LEXIS 14799 (Fla. Ct. App. Sept. 18, 2013).
Sebo purchased his home in April 2005, when it was four years old. It was insured under a manuscript policy issued by AHAC for $8 million. The all-risk policy covered rain, but excluded damage caused by faulty, inadequate or defective planning.
After Sebo bought the home, water leaks were noticed. Sebo believed that the house suffered from major design and construction defects. In October 2005, Hurricane Wilma struck and further damaged the home.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Court Holds That Trimming of Neighbor’s Trees is Not an Insured Accident or Occurrence
June 10, 2015 —
Christopher Kendrick and Valerie A. Moore – Haight Brown & Bonesteel LLPIn Albert v. Mid-Century Insurance Co. (No. B257792, filed 4/28/15, ord. pub. 5/20/15), a California Court of Appeal held that an insured’s trimming of a neighbor’s trees which allegedly damaged the trees was not an accident or occurrence covered by her homeowners insurance, despite a mistaken and good faith belief as to where the property line lay.
Ms. Albert was sued by her adjoining neighbor, who alleged damage to his property when she erected an encroaching fence and pruned nine mature olive trees on his property. The two parcels shared a reciprocal roadway easement providing for access to the main public road. At some point, Ms. Albert erected a fence that was subsequently determined to be on the neighbor’s land, and which enclosed a grove of nine mature olive trees. Ms. Albert claimed that the trees straddled the property line and were mutually owned. She pointed out that she had regularly been notified by the Los Angeles Fire Department to clear the area, and that she had been trimming the trees for years. Thus, she claimed a good faith belief that the trees were hers and that she was required to trim them.
Contending that her trimming had caused severe damage by reducing the aesthetic and monetary value of the trees, the neighbor sued alleging causes of action for trespass to real property and trees; abatement of private nuisance; declaratory relief; and for quiet title. He sought treble damages under Civil Code sections 733 and 3346, for injury to timber or trees.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com; Ms. Moore may be contacted at vmoore@hbblaw.com
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Georgia Supreme Court Addresses Anti-Indemnity Statute
October 21, 2019 —
David R. Cook - AHC Construction and Procurement BlogIn prior blog posts, we addressed Georgia’s anti-indemnity statute. One of the posts addressed the statute in the context of an electric utility easement near an airport. That case made its way to the Supreme Court Georgia, which provided some additional clarity to the statute. Milliken & Co. v. Georgia Power Co., — Ga. –, 829 S.E.2d 111 (2019).
When a plane crashed and several passengers and crew died or were injured, their representatives sued several defendants, including a nearby plant owner, Milliken & Company (“Milliken”), based on claims that transmission lines on Milliken’s property were too close to the runways, were too high, and encroached on the airport easements. Milliken cross claimed against Georgia Power Company (“GPC”). Milliken’s claim was based on an easement it granted to GPC, which required GPC to indemnify it for any claims arising out of GPC’s construction or maintenance of the transmission lines.
On appeal, the Supreme Court considered whether the clause was unenforceable under O.C.G.A. § 13-8-2(b). In general, “a party may contract away liability to the other party for the consequences of his own negligence without contravening public policy, except when such agreement it prohibited by statute.” Id. at 113 citing Lanier at McEver v. Planners & Eng’rs Collaborative, 284 Ga. 204, 205 (2008). As one such statute, O.C.G.A. § 13-8-2(b) applies when an indemnification provision (i) “relates in some way to a contract for construction, alteration, repair, or maintenance of certain property” and (ii) “promises to indemnify a party for damages arising from that own party’s sole negligence.” Id. at 114 (internal punctuation omitted).
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
