Hawaii Appellate Court Finds Duty to Defend Group Builders Case
May 10, 2013 —
Tred EyerlyOn May 19, 2010, the Hawaii Intermediate Court of Appeals determined construction defect claims did not constitute an occurrence under a CGL policy.Group Builders, Inc. v. Admiral Ins. Co., 123 Haw. 142, 231 P.3d 67 (Haw. Ct. App. 2010) ("Group Builders I"). The appeal in Group Builders I, however, only addressed the duty to indemnify. The ICA has now issued a second decision (unpublished), holding that there is was duty to defend Group Builders on the construction defect claims under Hawaii law, based upon the policy language and the allegations in the underlying complaint. Group Builders, Inc. v. Admiral Ins. Co., 2013 Haw.App. LEXIS 207 (Haw. Ct. App. April 15, 2013).
The underlying suit involved allegations by Hilton Hotels Corp. that Group Builders, a subcontractor working on an addition to the hotel, was responsible for mold found after completion of the project. Hilton alleged that the "design, construction, installation, and/or selection of the . . . building exterior wall finish . . . did not provide an adequate air and/or moisture barriers." The counts alleged against Group Builders included breach of contract and negligence.
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Tred EyerlyMr. Eyerly can be contacted at
te@hawaiilawyer.com
ASCE Statement On White House "Accelerating Infrastructure Summit"
October 17, 2022 —
Maria Lehman, President-elect - American Society of Civil Engineers (ASCE)WASHINGTON, D.C. –We thank the Administration for convening the Accelerating Infrastructure Summit, which highlighted the possibilities stemming from the bipartisan infrastructure law. Nearly one full year since it was passed into law, this transformative legislation is beginning to kickstart vital infrastructure projects nationwide that will improve the country's economic efficiency and prioritize public health and safety.
We know that together, builders, engineers, planners, and those entrusted with infrastructure projects must meet the moment and deliver projects on time, on task, and on budget for communities to make the most of these new resources. This generational investment in infrastructure is much needed - the 2021 Report Card for America's Infrastructure assigned the nation's infrastructure a cumulative grade of "C-" across 17 categories of infrastructure.
ASCE is ready to help optimize these investments for communities across the country and make sure all will benefit, whether it is providing contract templates to expedite the process or offering peer support to smaller and rural agencies.
ASCE is also focused on education in our industry to better equip civil engineers with the knowledge and expertise to execute alternative project delivery methods with a March 2023 Construction Institute Summit in St. Louis, which will provide a dedicated track to highlight innovations that help reduce the time for construction projects.
The bipartisan infrastructure law has provided us the opportunity to transform America and bring our infrastructure into the 21st century, and we will need diverse perspectives, innovative technologies and processes, and a robust workforce to make the most of this once-in-a-generation investment.
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.
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Insurer Must Defend Claims of Alleged Willful Coal Removal
June 21, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that the insured was entitled to a defense against claims for its alleged willful removal of coal from third parties' land. Liberty Mut. Fire Ins. Co. v. Bizzack Constr, 2017 U.S. Dist. LEXIS 70285 (W.D. Va. April 27, 2017).
The Virginia Department of Transportation (VDOT) contracted with Bizzack to perform work in widening U.S. Route 460. VDOT notified coal owners that it had been "necessary to remove certain coal" from their land during the construction of Route 460. Some of the coal owners sued Bizzack, seeking compensation for lost coal. They alleged Bizzack had illegally removed and sold their coal, and "damaged the remaining coal in place on the property."
Bizzack sought coverage from Liberty Mutual. Liberty Mutual filed suit seeking a declaration that it had no duty to defend or indemnify Bizzack. Cross-motions for summary judgment were filed. Liberty Mutual argued: (1) there was no "occurrence"; (2) exclusion j (5) applied; and (3) the "expected or intended injury" exclusion applied.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Fix for Settling Millennium Tower May Start This Fall
August 17, 2020 —
Nadine M. Post - Engineering News-RecordWith the lengthy and complex permitting and approval process complete and almost all the other details worked out, construction could begin in mid-November on the estimated $100-million shoring fix for the 645-ft-tall Millennium Tower in San Francisco. The perimeter pile upgrade for the 58-story residential condominium building, which has settled more than 17 in. toward the northwest since its completion in 2009, was originally expected to begin earlier this year.
Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
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Significant Increase in Colorado Tort Damages Caps Now in Effect Under Recent Legislation
January 28, 2025 —
Gordon Rees Scully Mansukhani, LLPColorado’s recently enacted legislation (HB 24-1472), which significantly increases damages caps for tort actions, is now in effect. Given the legislation’s January 1, 2025, effective date, an early-2025 increase in new filings is anticipated for cases that otherwise could have been filed in 2024.
The increases include:
- For noneconomic damages in tort actions (other than against medical professionals), more than double the previous cap to $1.5 million (with future inflation adjustment).[1]
- In wrongful death actions (other than against medical professionals), a greater than threefold increase from the previous limit to $2.125 million (with future inflation adjustment).[2]
- In medical professional actions for wrongful death, a 50% increase from the previous overall cap to $1.575 million in 2029 (with future inflation adjustment). For injury claims, more than double the previous cap for noneconomic damages to $875,000 in 2029 (with future inflation adjustment).[3]
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Bank Sues over Defective Windows
July 31, 2013 —
CDJ STAFFThe Federal Reserve Bank of St. Louis replaced 498 windows in its building in 2008. According to a consultant, they all have to be replaced again. The bank estimates that the damages will exceed $1.5 million, and they are suing the contractor who installed them, the window manufacturer, and others.
The windows were replaced to provide greater blast protection. But in 2011, the bank found that the special glass used was beginning to delaminate. The Federal Reserve is seeking to have all of the windows replaced “with windows that meet the specifications of the contract.”
McCarthy Building Construction says that it is attempting to resolve things. The contractor noted that it is “continuing to work with the Federal Reserve and other parties and hope we can resolve this matter in a timely manner.”
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OSHA Updates: You May Be Affected
July 19, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPGovernor Brown Signs Legislation Increasing Cal/OSHA Fines
Cal/OSHA has increased its maximum fines for the first time in more than twenty years pursuant to legislation recently signed into law by Governor Brown. The changes nearly double the maximum fines and have brought California in line with the Federal standard. The increase in fines will not be isolated to this year, as fines will now be automatically increased annually based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U). Additionally, any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, can no longer receive any adjustment of a penalty assessed based on the good faith or the history of previous violations. Such adjustments were previously commonplace.
Specific increases are listed below (all increases refer to maximum fines, Cal/OSHA has discretion as to the amount of the fine when issuing the citation):
- Section 6427 of the Labor Code was amended to increase fines, not of a serious nature, from $7,000 for each violation to $12,471 for each violation.
- Section 6429 of the Labor Code has increased fines for repeat violations; raising the maximum fine from $70,000 to $124,709 for each violation. Additionally, Section 6429 also raised the minimum fine for repeat violations from $5,000 to $8,908.
- Section 6431 raised fines for posting or recordkeeping violations from $7,000 to $12,471 per violation.
Full text of the penalty section of the labor code may be found
here
California OSHA Emergency Action Plan elements revised; California now more consistent with Federal Standards
Revisions to General Safety Orders section 3220(b) became effective on June 5, 2017 and contain two minor changes for California employers with regards to Emergency Action Plans (EAP).
The first change requires that an employer’s EAP be more detailed in describing the type of evacuation that is to be performed, not just the route for an evacuation. The previous element of the EAP simply required that the plan contain, “[e]mergency escape procedures and emergency escape route assignments.” The current element of the EAP requires that, “[p]rocedures for emergency evacuation, including type of evacuation and exit route assignments,” be identified.
The second change clarifies the language surrounding employees performing rescue or medical duties. Previously the only requirement in the EAP regarding rescue and medical duties was for employees that performed rescue and medical duties. The current version requires that the EAP contain, “[p]rocedures to be followed by employees performing rescue or medical duties. The use of the word and created potential gaps in plans as it is likely that employees may not be performing both rescue and medical duties, instead performing just rescue or medical duties. Plans must now include procedures to be followed by employees who perform either rescue or medical duties.
It is recommended that your EAP be in writing and updated to comply with the revised General Safety Orders section 3220. The full text of General Safety Orders section 3320 can be seen
here. Please contact us if you would like further details regarding your Emergency Action Plan.
Deadline for Electronic Submission of OSHA 300 Log Records for Injuries and Illnesses Delayed
On May 12, 2016, the Federal Occupational Safety and Health Administration (OSHA) published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses” which required certain employers subject to Federal OSHA regulations to submit the information from their completed 2016 Form 300A to OSHA via electronic submission no later than July 1, 2017. On June 28, 2017, OSHA, via a
Notice of Proposed Rule Making, has proposed a December 1, 2017 deadline for the electronic reporting; the electronic reporting system is scheduled to be available on August 1, 2017.
Per the California Department of Industrial Relations, California employers are not required to follow the new requirements and will not be required to do so until "substantially similar" regulations go through formal rulemaking, which would culminate in adoption by the Director of the Department of Industrial Relations and approval by the Office of Administrative Law.
Cal/OSHA drafted a proposed rulemaking package to conform to the revised federal OSHA regulations by amending the California Code of Regulations, title 8, sections 14300.35, 14300.36, and 14300.41; these are currently under review with the State.
It is currently unclear what, if any, impact the delay by OSHA will have on the proposed amendments to the California Code.
We will keep you posted as to the changes in California recordkeeping requirements. Please contact Louis “Dutch” Schotemeyer with any questions regarding Cal OSHA or your safety program. Dutch is located at Newmeyer & Dillion’s Newport Beach office and can be reached at dutch.schotemeyer@ndlf.com or by calling 949.271.7208.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Insured's Commercial Property Policy Deemed Excess Over Unobtained Flood Policy
June 10, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe court granted the insurer's motion for summary judgment, deciding that there was no breach of the policy for failure to pay for flood damage when the insured failed to obtain a policy under the National Flood Insurance Program (NFIP). 570 Smith St. Realty Corp. v. Seneca Ins. Co. Inc., 2019 N.Y. Misc. LEXIS 1773 (N.Y. Sup. Ct. April 4, 2019).
The insured's property in Brooklyn was insured by Seneca. Included in the policy was flood coverage in the amount of $1 million with a $25,000 deductible. While the policy was in effect, Hurricane Sandy hit, damaging the property. Plaintiffs timely filed a claim seeking reimbursement of up to policy limits. Seneca paid only $35,883 and later made an additional payment of $33,015.
The insured sued for, among other things, breach of the policy for failure to properly indemnify for the losses. Seneca moved for partial summary judgment dismissing the breach of policy claims. Seneca pointed out that the "Other Insurance" provision in the Flood Coverage Endorsement of the policy stated that if the loss was eligible to be covered under a NFIP policy, but there was no such policy in effect, the insurer would only pay for the amount of loss in excess of the maximum limit payable for flood damage under the policy. The maximum NFIP coverage was $500,000. The insured's loss caused by flood was less than $500,000.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
