Insureds Survive Motion to Dismiss Civil Authority Claim
September 29, 2021 —
Tred R. Eyerly - Insurance Law HawaiiAfter suffering business losses due to a hurricane, the insured's Civil Authority claim survived the insurer's motion to dismiss. Pathology Lab. v. Mt. Hawley Ins. Co., 2021 U.S. Dist. LEXIS 145129 (W.D. La. Aug. 3, 2021).
Hurricane Laura devastated Lake Charles, Louisiana causing severe damage to the insured property as well as other properties within a mile of the insured property. All seven electrical transmission line corridors feeding Lake Charles were catastrophically damaged causing an extensive power outage. Government shutdown Orders prohibited the insureds' access to the Lab. The Orders were issued by the respective civil authorities both in anticipation of and as a result of damage and dangerous physical conditions expected from and actually resulting from Hurricane Laura and the continuation thereof. When the hurricane arrived, all businesses that were not essential to the recovery were ordered closed until electricity, water and sewer services were restored. As a result, the Lab was closed from August 27, 2020 toSeptember 8, 2020.
The Lab sued for business income under the policy's Civil Authority provisions. Mt. Hawley moved to dismiss. Mt. Hawley argued that the Orders did not by their explicit terms close the Lab's business because closure was entirely dependent on the conditions of the described premises itself and whether it was safe to occupy. Mt. Hawley further argued that the mandatory Evacuation Order was issued in anticipation of property damage and therefore did not trigger coverage under the Civil Authority provision.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Create a Culture of Safety to Improve Labor Recruitment Efforts
September 12, 2022 —
Grant Robbins - Construction ExecutiveThe commercial construction industry must rely on skilled labor to survive. Skilled labor, however, is hard to come by. In fact, many construction firms report projects being delayed because of shortages in the workforce.
Part of the problem is training. Few companies have the time, resources or opportunities to train new construction workers. But the biggest reason for the labor shortage in the construction industry is simply a lack of people joining the trades. Decades ago, construction was a respected career choice. Over the years, however, the pressure to get into a four-year college has created negative perceptions of working in the trades.
Some commercial construction companies choose to work with fewer crews as a result of the lack of skilled labor, therefore limiting the number of jobs they can handle. The labor shortage in the construction industry has simply made it nearly impossible to find subcontractors to adequately staff upcoming projects (one survey found that 35% of contractors had to turn down jobs due to a lack of skilled laborers). This then leads to hikes in construction costs and delays in scheduling, which can take a major toll on business.
Reprinted courtesy of
Grant Robbins, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings
July 02, 2018 —
Tony Carucci - Snell & Wilmer Real Estate Litigation BlogCalifornia’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The statute was designed to provide an early and fast summary judgment-like procedure to allow defendants and cross-defendants to file a motion to dismiss either an entire complaint, specific causes of action, or even just portions of a cause of action, and to require the plaintiff to respond before conducting discovery. By facilitating an early challenge to a plaintiff or cross-complainant’s claims, the anti-SLAPP statute allows the responding party to avoid the costs and delay that chill the exercise of constitutionally protected rights.
Under California Code of Civil Procedure section 425.16(f), an anti-SLAPP motion must be filed “within 60 days of the service of the complaint . . . .” But what if the plaintiff files an ameded complaint? In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, the California Supreme Court held that the 60-day timeline runs from the date a complaint is filed with the cause(s) of action challenged in the anti-SLAPP motion.
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Tony Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
No Retrofit without Repurposing in Los Angeles
October 21, 2013 —
CDJ STAFFThe Los Angeles Times has continued its series on the seismic safety of buildings in downtown Los Angeles. According to the article, Los Angeles only requires seismic retrofits of buildings if their purpose is being changed. One investor, Izak Shomof, bought a residential hotel and kept it as one to avoid retrofitting the building. He converted an office building to upscale residences and so the building was strengthened.
His son, Eric Shomof, keeps an office in the unreinforced building. He said if more retrofitting were required, “you’d see a lot more vacant buildings down here,” describing the process as “not cheap.”
Depending on whether or when a building has changed its use, the concrete buildings of downtown Los Angeles may or may not be protected against failure in an earthquake.
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DC Wins Largest-Ever Civil Penalty in US Housing Discrimination Suit
November 15, 2022 —
Kriston Capps - BloombergThree real estate companies operating in Washington, DC, will pay record-breaking penalties in a suit brought by the city for illegally discriminating against tenants who use Section 8 vouchers and other forms of housing assistance.
The attorney general for the District of Columbia, Karl Racine, announced on Thursday a settlement for $10 million. While fair housing cases involving lenders have resulted in larger compensation payouts, $10 million is the largest civil penalty ever levied in a housing discrimination case.
In 2020, the city sued several entities — DARO Management Services, DARO Realty and New York-based parent company Infinity Real Estate, as well as several executives — over housing practices in the District. DARO Management operates and rents some 1,200 residential units in more than a dozen apartment buildings spread across Wards 1, 2 and 3, which include DC’s more affluent areas. (DARO Realty owns the properties, DARO Management operates them, and Infinity owns both affiliates.)
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Kriston Capps, Bloomberg
State Farm Too Quick To Deny Coverage, Court Rules
July 22, 2011 —
CDJ STAFFOn July 13, 2011, Judge Sarah S. Vance of the US District Court issued a rule in the case of Travelers Cas. & Surety Co. of Am. v. Univ. Facilities, Inc. (E.D. La., 2011). In this case, Stanley Smith Drywall was contracted by Capstone Building Corporation to “perform undisclosed work at the facility believed to involve the installation of drywall.” The project involved the design and construction of student residences for the Southeastern Louisiana University in Hammond, Louisiana. In May, 2009, University Facilities, Inc. (UFI) sued Capstone Development Corporation and Capstone On-Campus Management.
State Farm insured Stanley Smith Drywall and they sought a declaration that they have no duty: “(1) to insure Stanley Smith or CBC, or (2) to defend or indemnify any party against UFI's claims in the pending arbitration.” State Farm contends “(1) there is no "occurrence" to trigger coverage under the policy; (2) only breach of contract claims are asserted; (3) there is no property damage alleged; and (4) various coverage limitations and exclusions apply to prevent coverage.’
The court concluded that “whether State Farm has a duty to defend in the arbitration must be determined by considering the claims asserted in the arbitration.” However, the arbitration claims were not made part of the record. There, “, the Court cannot determine as a matter of law State Farm's duty to defend on the present record.” The same was true of State Farm’s duty to indemnify. “Stanley Smith and CBC assert that State Farm's motion for summary judgment was filed before any discovery was conducted in the arbitration proceeding or in this case. The Court finds that State Farm has failed to develop the record sufficiently to establish that there is no genuine issue of material fact as to its duty to indemnify Stanley Smith or CBC in the arbitration.’
The court denied State Farm’s motion for a summary judgment on its duty to defend and indemnify.
Read the court’s decision…
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Real Estate & Construction News Round-Up (11/02/22) – Flexible Workspaces, Sustainable Infrastructure, & Construction Tech
November 15, 2022 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogThis week’s round-up dives into digital transformation in the construction industry, renewed interest in flexible workspaces, and how the infrastructure sector can become more resilient and sustainable, both economically and environmentally.
- Digital transformation in the construction industry is top of mind for many firms, but most are still in the beginning and intermediate phases of implementing new digital capabilities. (Ursula Cullen, PBC Today)
- Companies could mitigate climate hazards and build resilience into the life cycle of their infrastructure and capital projects by facilitating a comprehensive approach to understanding risk. (Brodie Boland and Daphne Luchtenberg, McKinsey & Company)
- The use of drones in project planning, as well as the incorporation of other technology, is proposed as an alternative solution to addressing the construction industry’s labor shortage. (Shaun Passley, For Construction Pros)
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Pillsbury's Construction & Real Estate Law Team
The Enforceability of “Pay-If-Paid” Provisions Affirmed in New Jersey
January 04, 2023 —
Levi W. Barrett, Michael S. Zicherman & Brian Glicos - Peckar & Abramson, P.C.On December 7, 2022, the Appellate Division affirmed the New Jersey Superior Court decision in Jersey Precast v. Tricon Enterprises, Inc. et al., finding that the “pay-if-paid” clause in a material supplier’s purchase order with a general contractor was binding and enforceable. While clauses conditioning a general contractor’s obligation to pay its subcontractors on the general contractor’s receipt of payment from the project owner are not unique – this is the first time that a court in New Jersey has affirmed this practice in a published opinion. [1]
Background
The general contractor, Tricon, sent Jersey Precast its standard form purchase order for the supply of prestressed box beams to fulfill a public improvement contract with Union County. The reverse side of the form purchase order contained standard terms and conditions, and included a pay-if-paid clause drafted by Michael Zicherman, a partner of Peckar & Abramson, P.C. While Jersey Precast provided some draft revisions to the terms and conditions, Tricon never signed the purchase order and the proposed revisions were never accepted. Significantly, Jersey Precast did not attempt to modify the pay-if-paid provision. It later developed that the construction of the project became impossible, and the beams fabricated by Jersey Precast were not used. Tricon invoiced Union County for the cost of the beams, but the County failed to make payment and refused to accept delivery of the beams.
Reprinted courtesy of
Levi W. Barrett, Peckar & Abramson, P.C.,
Michael S. Zicherman, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Barrett may be contacted at lbarrett@pecklaw.com
Mr. Zicherman may be contacted at mzicherman@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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