Defective Concrete Blocks Spell Problems for Donegal Homeowners
October 30, 2013 —
CDJ STAFFA number of recently built homes in Donegal, Ireland are suffering from crumbing cement blocks used in the construction. This was previously seen in homes in the Leinster Region, and seems to be more widespread than previously thought.
Damien McKay, an engineer who specializes in building litigation noted that the blocks started cracking about five years after the homes were constructed. In some cases, “the actual concrete blocks beneath the plaster can be easily broken and in some occasions with as little effort as rubbing with your fingers.”
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Sales of New U.S. Homes Fell in February to Five-Month Low
March 26, 2014 —
Shobhana Chandra – BloombergPurchases of new homes in the U.S. fell in February to the lowest level in five months, a sign the industry may take time to pick up after inclement weather damped demand earlier in the year.
Sales declined 3.3 percent to a 440,000 annualized pace, following a 455,000 rate in the prior month that was the strongest in a year, figures from the Commerce Department showed today in Washington. The median forecast of 77 economists surveyed by Bloomberg called for 445,000.
Unusually frigid temperatures added to restraints including rising mortgage rates, higher property values, and a lack of supply that kept prospective buyers away from the market for new and existing properties. Bigger gains in employment and consumer sentiment would help spur the recovery in homebuilding, sustaining its contribution to economic growth and boosting earnings at companies such as Lennar Corp. and KB Home.
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Shobhana Chandra, BloombergMs. Chandra may be contacted at
schandra1@bloomberg.net
Asbestos Client Alert: Court’s Exclusive Gatekeeper Role May not be Ignored or Shifted to a Jury
February 07, 2014 —
Lee Marshall and Chandra L. Moore - Haight Brown & Bonesteel, LLPIn Estate of Henry Barabin v. AstenJohnson, Inc., - F.3d -, 2014 U.S. App. LEXIS 774, 2014 WL 129884 (9th Cir., Jan. 15, 2014) en banc, the Ninth U.S. Circuit Court of Appeals vacated a $10.2 million judgment in the Plaintiffs’ favor in a case where Plaintiff alleged that occupational exposure to asbestos from dryer felts caused his mesothelioma. The Ninth Circuit held that the district court abused its discretion by neglecting its duty as a “gatekeeper” under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Federal Rule of Evidence 702, by improperly admitting expert testimony at trial without first determining its reliability. The en banc court held that admitting the testimony on the debated theory that “each asbestos fiber causes mesothelioma” was prejudicial error and the court remanded the case for a new trial. The court also held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, but in the instant case, the record was “too sparse” to determine whether the expert testimony was relevant and reliable or not.
This ruling is a victory for the defense in that it reaffirms the federal court’s exclusive gatekeeper role and holds that the role may not be ignored or shifted to a jury. Unfortunately, the court did not go so far as to evaluate the inherent reliability of expert opinions based on the theory that “each asbestos exposure causes mesothelioma.” As such, it did not provide guidance as to what specific foundational requirements are required to admit, or exclude, these types of opinions under a Daubert analysis.
In Barabin, Plaintiff alleged he was exposed to asbestos while working at a paper mill with dryer felts manufactured and supplied by Defendants. The issue was whether the dryer felts substantially contributed to Barabin’s development of mesothelioma, a determination that required expert testimony.
Reprinted Courtesy of Lee Marshall, Haight Brown & Bonesteel, LLP and
Chandra L. Moore, Haight Brown & Bonesteel, LLP
Mr. Lee may be contacted at lmarshall@hbblaw.com and Ms. Moore may be contacted at cmoore@hbblaw.com.
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ACS Recognized by Construction Executive Magazine in the Top 50 Construction Law Firms of 2021
September 06, 2021 —
Ahlers Cressman & Sleight PLLCACS is pleased to announce that the firm has been recognized by Construction Executive magazine in The Top 50 Construction Law Firms™ for 2021. Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.
ACS is known for our depth of knowledge of the construction industry and experience in construction law. Our lawyers hold leadership positions within state and national industry organizations. Two of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section and the current chair, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and the majority of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters.
Since it was first published in 2003, Construction Executive has become the leading trade magazine for news, market developments, and business issues impacting the construction industry. The magazine reaches more than 55,000 commercial, industrial, and institutional contractors and construction-related business owners. Each issue of Construction Executive includes articles designed to help owners and top managers run a more profitable and productive construction business.
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Ahlers Cressman & Sleight PLLC
Are COVID-19 Claims Covered by Builders Risk Insurance Policies?
May 04, 2020 —
Jason M. Adams, Gibbs Giden Locher Turner Senet & Wittbrodt LLP and Cheryl L. Kozdrey, Saxe Doernberger & Vita, P.C.If you are an attorney, insurance broker, or other professional representing developers and contractors, then your clients have likely reached out with concerns about losses related to COVID-19. One common question is whether there is potential coverage under builders risk insurance policies.
The short answer is: It depends. As with most questions pertaining to insurance coverage, the answers depend on the specific policy language and underlying facts required to trigger coverage. Builders risk policies are even more fact specific due to the lack of uniformity of base policy forms and endorsements between insurance carriers.
The first step in any analysis is to gather facts and carefully document any impending and potential damages or delays. The facts are crucial because the coverage analysis may vary depending on the specific reason the project was shut down. For example, the analysis would be different if the project was shut down as a result of an express government order, such as those in Northern California and Washington, versus the project shutting down as a result of workers testing positive for COVID-19. Properly analyzing builders risk coverage involves a granular account of the facts and damages, and can require a great deal of hair splitting with respect to specific policy language.
Regardless of the strength of the insured’s facts and damages, or the breadth of its policy language, the policyholder still likely faces an uphill battle in finding coverage for COVID-19 related claims. The unfortunate reality of most builders risk policies is that they are property policies that require some evidence of physical loss or damage to trigger coverage. Whether or not COVID-19 claims constitute property damage will be the subject of great debate and litigation over the coming months and years. The outcome will likely depend on how the insured’s jurisdiction ultimately rules on the litany of COVID-19 cases that have already been filed – specifically, how broadly each court interprets the meaning of “physical loss or damage.”
Although these key issues have yet to be clearly defined by the courts, some policies are better than others and there are specific variables that could affect the likelihood of coverage. For example, some of the more policyholder-friendly insurance programs may contain coverage extensions for delay in completion, business interruption, loss of rental income, or civil authority that may not be tied to the property damage requirement, and which would tend to support coverage for COVID-19 claims.
Even if the insured crosses the initial threshold and can demonstrate a covered claim, the following common endorsements and exclusions may require additional analysis depending on the facts.
- Virus or Pandemic Exclusions: Virus or pandemic exclusions are not as common on builders risk policies as they may be on other forms of coverage. However, they do exist and, if present, result in a significant barrier to coverage. As with the policy itself, every endorsement is different and should be analyzed in terms of the express language contained in the endorsement and the facts.
- Abandonment or Cessation of Work: Most builders risk policies include provisions that preclude coverage in the event of the abandonment of the project or a lengthy cessation of work. As a result, the insured should take steps to articulate to the carrier that the project has not been abandoned, and that there exists an intent to return as soon as possible. The insured should also maintain a record of ongoing project oversight and protection efforts taken during the period when construction operations are suspended.
- Security and Safety Requirements: Many builders risk policies contain provisions requiring the insured to maintain protective safeguards and security protocols throughout the pendency of the project. Safety fencing, lighting and security guards are common examples. The policy should be analyzed to ensure that the policyholder can meet any such requirements during a COVID-19 related shutdown. For example, can the insured continue to staff a security guard? If not, arrangements will likely need to be made with the carrier depending on the language of the policy.
- Insurable Limits: Builders risk policies are typically underwritten based upon the total completed value of the structure, including materials and labor. The insured will need to analyze the policy to consider whether increased material or labor costs as a result of COVID-19 will alter the terms of coverage, trigger any escalation clauses, or result in an increase in premium due. If increased cost projections become apparent, the insured should report these changes to the carrier immediately.
- Extensions of Coverage: The insurance industry was facing a hard market even before the COVID-19 pandemic, which resulted in higher premiums and limited coverage options. The COVID-19 pandemic has only exacerbated these issues and it may be difficult to obtain coverage extensions on projects that have been shut down. The insured should work with its risk management team (risk manager, insurance broker and lawyer) to engage the carriers to negotiate any necessary coverage extensions resulting from COVID-19 related project delays.
To summarize, builders risk coverage for COVID-19 claims is far from certain, but not impossible. Insureds should provide notice of a claim to all potentially applicable carriers in order to preserve their rights. The insured should also report increased construction cost and articulate its intent to return to the project to preserve their escalation clause and avoid arguments that they have abandoned the project. The insured should continue to document its claims and damages, and be ready to substantiate its claims and push back on any coverage denial. Throughout the entirety of this process, the insured should work with its risk management team to get out in front of any extensions it may need to complete the project. In a climate where insurance carriers are receiving an insurmountable number of claims, the insured should be prepared to fight for coverage and not simply throw up its hands in the face of a denial. Given the intense social, legislative and executive pressure to cover COVID-19 claims, there may be a tendency for the courts to find coverage in gray areas, particularly if the insured was fortunate enough to have purchased one of the broader coverage forms referenced above.
About the Authors
Jason M. Adams, Esq. (jadams@gibbsgiden.com) is a partner at Gibbs Giden representing construction professionals in the areas of Construction Law, Insurance Law and Risk Management and Business/Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Jason represents developers, contractors, public entities, investors, lenders, REITs, design professionals, and other construction professionals at all stages of the construction process. Jason is a published author and sought-after speaker at seminars across the country regarding high level construction risk management and insurance topics. Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms.
Cheryl L. Kozdrey, Esq. (clk@sdvlaw.com) is an associate at Saxe Doernberger & Vita, P.C., a national insurance coverage law firm dedicated exclusively to policyholder representation and advocacy. Cheryl advises insurance brokers, risk managers, and construction industry professionals regarding optimal risk transfer strategies and insurance solutions, including key considerations for Builder’s Risk, Commercial General Liability, D&O, and Commercial Property policies. She assists clients with initial policy reviews, as well as renewals and modification(s) of existing policies to ensure coverage needs are satisfied. Cheryl also represents policyholders throughout the claims process, and in coverage dispute litigation against insurance carriers. She is currently working on some of the largest construction defect cases in the country. Cheryl is a published author and is admitted to practice in the State of California and all federal district courts within the State.
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Traub Lieberman Attorneys Recognized in the 2024 Edition of The Best Lawyers in America®
September 06, 2023 —
Traub LiebermanRelated Attorneys:
Lisa L. Shrewsberry,
Brian C. Bassett,
Rina Clemens,
Lauren S. Curtis,
Scot E. Samis,
Anthony Hatzilabrou,
Adam P. Joffe,
Heather Jones,
Ashley Kellgren,
Jessica N. Kull,
Ryan S. Parker,
Nicole E. Shapiro
Traub Lieberman is pleased to announce that five Partners have been selected by their peers for inclusion in the 2024 edition of The Best Lawyers in America®. In addition, seven attorneys have been included in the 2024 Best Lawyers®: Ones to Watch list. These recognitions include attorneys from the firm’s Hawthorne, NY; Chicago, IL; Palm Beach Gardens, FL; and St. Petersburg, FL offices.
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Professional Services Exclusion Bars Coverage Where Ordinary Negligence is Inseparably Intertwined With Professional Service
August 17, 2017 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Energy Ins. Mutual Ltd. v. Ace American Ins. Co. (No. A140656, filed 7/11/17, ord. Pub. 8/10/17), a California appeals court found that a professional services exclusion barred coverage for wrongful death and other claims blamed on pipeline inspectors’ failure to identify and properly mark a gas pipeline that was ruptured during construction of another pipeline, resulting in an explosion and fire.
In Energy Ins. Mutual, a pipeline owner hired two temporary construction inspectors through a staffing company. The inspectors had to ensure compliance with engineering and safety standards, practices and procedures for pipeline construction, and understand construction drawings and blueprints. They worked together with one of the owner’s employees to perform daily surveillance to ensure the integrity of the pipeline and avoid third party damage.
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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Justin Bieber’s Unpaid Construction Bill Stalls House Sale
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Toronto Sun reported that Justin Bieber’s Calabasas, California house sale to Khloe Kardashian has been stalled due to a an unpaid construction bill. Bieber sold the home for $7.2 million, but allegedly owes $85,000 to a construction company for home repairs.
Bieber moved out of his mansion in Calabasas “to Atlanta, Georgia after numerous encounters with the police regarding alleged loud parties, speeding in the gated community and 'egging' a [neighbor’s] house,” according to the Toronto Sun.
Bieber has a week to pay the lien, or the house sale does not go through.
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