Traub Lieberman Partner Greg Pennington and Associate Kevin Sullivan Win Summary Judgment Dismissing Homeowner’s Claim that Presented an Issue of First Impression in New Jersey
December 02, 2019 —
Gregory S. Pennington & Kevin Sullivan - Traub LiebermanOn July 12, 2019, Traub Lieberman Straus & Shrewsberry LLP’s Gregory S. Pennington and Kevin Sullivan secured summary judgment dismissing a homeowner’s claim for damaged flooring. The claim at issue arose from the homeowners’ attempt to discard their refrigerator. In the process of removing the refrigerator, the homeowners scratched their kitchen and dining room floors. The homeowners made a claim under their homeowners policy for the cost to repair and replace the damaged flooring. Their homeowners’ insurer denied their claim based on a policy exclusion barring coverage for damage consisting of or caused by marring and scratching. When their insurer denied coverage, the homeowners filed suit in the New Jersey Superior Court, Law Division in Bergen County. The case presented the issue of first impression in New Jersey of whether a homeowner’s self-inflicted, but accidental damaging of its own floors was barred by the homeowner’s policy’s marring or scratching exclusion. Greg and Kevin successfully argued that the exclusion applied to bar coverage.
Reprinted courtesy of
Gregory S. Pennington, Traub Lieberman and
Kevin Sullivan, Traub Lieberman
Mr. Pennington may be contacted at gpennington@tlsslaw.com
Mr. Sullivan may be contacted at ksullivan@tlsslaw.com
Read the court decisionRead the full story...Reprinted courtesy of
New Orleans Drainage System Recognized as Historic Civil Engineering Landmark
May 29, 2023 —
The American Society of Civil EngineersNEW ORLEANS, La. – The
American Society of Civil Engineers (ASCE) today recognized the New Orleans Drainage System in New Orleans, Louisiana as a
Historic Civil Engineering Landmark. The project was innovative and largely unprecedented for its time, and the first portions came online in the year 1900. The system now consists of 22 drainage pumping stations and 1,200 miles of network drains, as well as green infrastructure elements to manage stormwater runoff. The infrastructure is largely credited for making the existence of New Orleans possible, and the improved drainage and reduction in standing water contributed to better public health and reduced the number of malaria and typhoid deaths in the early 20th century.
New Orleans' position near the mouth of the Mississippi River made it a vital city for trade and commerce in the U.S. economy since the early 1800s, despite its problematic natural environment. The city was perched along the banks of the Mississippi River and next to Lake Pontchartrain, surrounded by swamps. Improvements to levee systems prevented the city from being inundated with flooding from the river, but rainfall became a pervasive issue as the city's population grew in the 1870s.
The drainage system was first proposed in 1876 to replace primitive "drainage machines," steam-powered paddle wheels that moved water runoff into canals that led to Lake Pontchartrain. The existing system was inefficient and could not handle the frequent, heavy tropical rain New Orleans experiences and could not lift water sufficiently to drain the city. After several proposals, construction on the current drainage system started in 1897, and the first portions of the system came online in 1900. The system drains stormwater through pipes and canals to reach drainage pump stations which expel the water into several bodies of water surrounding the city. Engineers have repeatedly expanded and enlarged the drainage system, including a massive investment in the drainage system authorized by the Southeast Louisiana Urban Flood Control Project and approved by Congress in 1996. The Sewerage and Water Board's green infrastructure plan is a critical partner and complement to the drainage system today.
The New Orleans Drainage System's design has inspired water management system design in communities around America and worldwide. In Southeastern Florida, water management systems using pumps and canals divert excess water away from heavily populated areas during heavy rain, including tropical storms and hurricanes. Engineers in Kolkata, India and Shanghai, China have also used drainage and pumping systems like the ones in New Orleans to assist with water management.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
Read the court decisionRead the full story...Reprinted courtesy of
Additional Insured is Loss Payee after Hurricane Damage
October 01, 2024 —
Tred R. Eyerly - Insurance Law HawaiiConstruing the policy language, the federal district court found that the policy's additional insured was the loss payee for damage caused by Hurricanes Laura and Delta. TCP Ryan St. LLC v. Weschester Surplus Lines Ins. Co., 2024 U.S. Dist. LEXIS 125529 (W.D. La. July 16, 2024).
Hurricanes Laura and Delta caused damage to TCP Ryan Street, LLC's (TCP) property. Westchester had issued a policy to MRI Heritage Brand, Inc. (MRI). MRI, as lessee, was obligated pursuant to the lease terms to "purchase and maintain . . . a policy of fire, extended coverage, vandalism and malicious mischief (or 'all risk') insurance coverage on all real property situated at the Lease Premises." The lease also required MRI to obtain coverage under a policy naming only the landlord as the sole insured and provided that the proceeds would be payable to the landlord.
The policy provided that no entity was covered unless Westchester had received identifying information for the entity during the application process or the entity was added by endorsement.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Litigation—Battles on Many Fronts
May 07, 2015 —
Craig Martin – Construction Contractor AdvisorWhen you are involved in construction litigation, you have battles on several fronts, including those against subcontractors, owners, insurers and the court. Shoring up your defenses on each of these fronts is imperative, or you may lose the battle or, worse yet, the war.
A recent opinion out of the Eleventh Circuit Court of Appeals (overseeing federal courts in Alabama, Florida and Georgia) Carithers v. Mid-Continent Casualty Company, illustrates the various battle fronts involved in a construction case. In this case, the Carithers (Home Owner) sued their homebuilder, Cronk Duch Miller & Associates (Contractor) in state court after discovering multiple defects with their home.
Battle Front #1—Claim Against Contractor
The Contractor and Home Owner entered into a consent judgment for approximately $90,000.00 and the Contractor assigned its claim against its insurer to the Home Owner. It is unlikely that the Contractor paid the $90,000.00 judgment. The Home Owner likely agreed not to collect on the $90,000.00 in exchange for the chance to pursue the Contractor’s claim against its insurer.
Read the court decisionRead the full story...Reprinted courtesy of
Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Approaches in the Absence of a Differing Site Conditions Clause
April 10, 2019 —
Parker A. Lewton - Smith CurrieA contractor who has encountered unforeseen conditions will typically rely on the contract’s differing site conditions clause as a means to recovery. Most construction contracts address those issues directly. In ConsensusDocs Standard Agreement and General Conditions between Owner and Constructor, the starting point is § 3.16.2. But what if the contract does not contain a differing site conditions clause? Or, what if the contract does contain such a clause, but the contractor failed to provide adequate notice or satisfy other conditions or requirements of the contract? When reliance on a differing site conditions clause is impractical, a contractor still may seek recovery in certain instances under one or more of the following legal theories: misrepresentation; fraud; duty to disclose; breach of implied warranty; and mutual mistake.
Misrepresentation
Misrepresentation occurs when an owner “misleads a contractor by a negligently untrue representation of fact[.]” John Massman Contracting Co. v. United States, 23 Cl. Ct. 24, 31 (1991) (citing Morrison–Knudsen Co. v. United States, 170 Ct. Cl. 712, 718–19, 345 F.2d 535, 539 (1965)). A contractor may be able to recover extra costs incurred, under a theory of misrepresentation, if it can show that (1) the owner made an erroneous representation, (2) the erroneous representation went to a material fact, (3) the contractor honestly and reasonably relied on that representation, and (4) the contractor’s reliance on the erroneous representation was to the contractor’s detriment. See T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 728–29 (Fed. Cir. 1997). These four requirements can be satisfied, for example, through the use of deposition testimony detailing the owner’s representations and the contractor’s reliance thereon. See, e.g., C & H Commercial Contractors, Inc. v. United States, 35 Fed. Cl. 246, 256–57 (1996).
Read the court decisionRead the full story...Reprinted courtesy of
Parker A. Lewton, Smith CurrieMr. Parker may be contacted at
palewton@smithcurrie.com
New Jersey Court Washes Away Insurer’s Waiver of Subrogation Arguments
May 27, 2019 —
William L. Doerler - The Subrogation StrategistSubrogating insurers often address waiver of subrogation clauses in the form contracts drafted by the American Institute of Architects. In ACE Am. Ins. Co. v. Am. Med. Plumbing, No. A-5395-16T4, 2019 N.J. Super. LEXIS 45 (App. Div.), ACE American Insurance Company (ACE) argued that the waiver clause in the AIA General Conditions form A201-2007 did not extend to the post-construction loss at issue. Adopting what the court termed the “majority” position, the Appellate Division held that, by reading §§ 11.3.5 and 11.3.7 together, the waiver applied to bar the insurer’s subrogation claim. The Appellate Court’s ruling makes pursuing subrogation against New Jersey contractors using AIA contract forms more difficult.
In this matter, Equinox Development Corporation (Equinox Development), ACE’s insured, contracted with Grace Construction Management Company, LLC (Grace Construction) to build the “core and shell” of a new health club (the Work). Grace Construction subcontracted the plumbing work to American Medical Plumbing, Inc. (AM Plumbing).
Read the court decisionRead the full story...Reprinted courtesy of
William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
South Carolina Supreme Court Asked Whether Attorney-Client Privilege Waived When Insurer Denies Bad Faith
September 18, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe Fourth Circuit certified the following question to the South Carolina Supreme Court: Does South Carolina law support application of the "at issue" exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer? In Re: Mt. Hawley Ins. Co., 2018 U.S. App. LEXIS 17910 (4th Cir. June 28, 2018).
Mt. Hawley insured Contravest Construction Company under an excess commercial liability policy from July 21, 2003 to July 21, 2007. During this period, Contravest constructed a development in South Carolina. In 2011, the Owners Association sued Contravest for alleged defective construction. Mt. Hawley denied tenders to defend or indemnify. Contravest ultimately settled the case.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Proving Contractor Licensure in California. The Tribe Has Spoken
October 21, 2015 —
Garret Murai – California Construction Law BlogAs I mentioned in an earlier post, in California you must “prove” you’re a licensed contractor in a construction case. But in whose hands are you entitled to place your fate – the judge or the jury?
Well, the tribe has spoken.
Jeff Tracy, Inc. v. City of Pico Rivera
In Jeff Tracy, Inc. v. City of Pico Rivera, Case Nos. B258563 and B258648, California Court of Appeals for the Second District (September 15, 2015), general contractor Jeff Tracy, Inc. doing business as Land Forms Construction (“Land Forms”) was walloped with a nearly $5.5 million judgment for being improperly licensed on a park project owned by the City of Pico Rivera (“City”). The judgment followed a bench trial over Land Form’s objection that it was entitled to a jury trial.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
