GA Federal Court Holds That Jury, Not Judge, Generally Must Decide Whether Notice Was Given “As Soon as Practicable” Under First-Party Property Damage Policies
November 01, 2021 —
Edward M. Koch & Lynndon K. Groff - White and WilliamsInsurance policies covering first-party property damage often require insureds to notify insurers of a loss “as soon as practicable.” Where an insured may or may not have given notice “as soon as practicable,” the issue arises as to who should determine whether the insured complied with this requirement: the judge or the jury?
On October 6, 2021, the United States District Court for the Middle District of Georgia addressed this issue in Vintage Hospitality Group LLC v. National Trust Insurance Company, Case No. 3:20-cv-90-CDL, 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). In Vintage Hospitality, a July 2018 hailstorm damaged the roof of a hotel owned by the policyholder. The policyholder did not discover leaks from the hotel roof until two months later, in September 2018. The policyholder, not realizing that the hailstorm had caused the leaks, unsuccessfully attempted to repair the leaks. Eventually, in February 2020—19 months after the hailstorm and 17 months after the policyholder discovered the leaks—the policyholder hired a construction company to evaluate the roof. It was not until then that the policyholder learned that the hotel had sustained hail damage from the July 2018 storm. The policyholder notified its July 2018 first-party property damage insurer a few days later.
Reprinted courtesy of
Edward M. Koch, White and Williams and
Lynndon K. Groff, White and Williams
Mr. Koch may be contacted at koche@whiteandwilliams.com
Mr. Groff may be contacted at groffl@whiteandwilliams.com
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Eight Ways to Protect a Construction Company Before a Claim Is Filed
November 04, 2019 —
Mary Bacon - Construction ExecutiveClaims are inevitable in the construction industry. They can take on a life of their own and come with the burden of legal fees, wasted executive time and a possible judgment. Too often the only winners are the lawyers.
TIPS FOR PROTECTING MANAGEMENT AND THE BUSINESS BEFORE A CLAIM IS FILED
- Respect the business entity’s corporate structure. First and most importantly, respect the business entity’s corporate form. Legal entities have certain formalities like filing an annual list of officers, maintaining separate bank accounts, conducting certain meetings and following bylaws, etc. Respect these formalities. Failure to follow them exposes the owner to personal liability for company debts. And while a business claim has the potential to wipe out a business, owners should not risk having their personal assets on the line as well.
- Get a good contract. In most instances, a contract governs what happens and who is responsible for payment associated when a certain issue or dispute arises. A clear, well-written contract can often avoid a dispute or liability for a dispute. Actively participate in the contract negotiation and drafting process to make sure each party’s role and responsibilities are clearly accounted for.
- Make friends with clients. While it is true that “business is business,” people are often fairer and more willing to work towards a solution for people they are friends with. In most cases, friends will help friends in ways that people would not help mere business associates. When encountering a problem on a job, a friend may be willing to help achieve a more favorable outcome.
Reprinted courtesy of
Mary Bacon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Bacon may be contacted at
mbacon@spencerfane.com
Traub Lieberman Attorneys Recognized as 2022 New York – Metro Super Lawyers®
October 17, 2022 —
Traub LiebermanTraub Lieberman is pleased to announce that seven Partners from the Hawthorne, NY Office have been selected to the 2022 New York - Metro Super Lawyers list.
2022 New York – Metro Super Lawyers
- Copernicus Gaza – Insurance Coverage
- Jonathan Harwood – Professional Liability
- Lisa Rolle – Construction Litigation
- Christopher Russo – Professional Liability
- Lisa Shrewsberry – Professional Liability
- Stephen Straus – Insurance Coverage
- Richard Traub – Insurance Coverage
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Traub Lieberman
Workers Compensation Insurance: Dangers of the Audit Process
April 12, 2021 —
Jason M. Gropper - Autry, Hall & Cook, LLPIf your business obtains workers compensation insurance, it is important you take steps to protect the business and yourself from excessive premiums to the insurance company as a result of misclassification of workers.
After applying for and being accepted by an insurance company for workers compensation insurance, your business will receive a Workers Compensation and Employers Liability Insurance Policy. It is important that you or an advisor reviews this document. Generally, this document will explain what the insurance company can do, steps it can take to determine the premium, and the responsibilities of your business.
The document will also provide the estimated premium. A premium is the amount you will pay for the coverage provided by the insurance company. The premium is determined by many factors, including the classification of each employee. It is important that when your company applies for insurance, the correct classifications are provided. If those are not provided, or provided in error, the insurance company will assign classifications and the associated rates, based on its assumptions and conclusions. The insurance company will assess the payroll and multiply it by an established rate based on the revised classification. The rates are different for the distinct work being done by each employee, with higher-risk jobs receiving a higher rate. For instance, a roofer or framer will have a higher rate than clerical staff. The rate is generally higher for those with riskier jobs.
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Jason M. Gropper, Autry, Hall & Cook, LLPMr. Gropper may be contacted at
Gropper@ahclaw.com
Traub Lieberman Partner Eric D. Suben Obtains Federal Second Circuit Affirmance of Summary Judgment in Insurer’s Favor
April 10, 2023 —
Eric D. Suben - Traub LiebermanIn the underlying action, a property owner hosting a motorcycle rally was sued after a motorcycle collided with an auto near the entrance to the premises, injuring the cyclists. The cyclists sued the property owner, among others, alleging failure to supervising traffic on the adjoining roadway. The property owner tendered the claim under its CGL policy, which was endorsed with an “absolute auto exclusion,” precluding coverage for claims “arising out of or resulting from the ownership, maintenance, use or entrustment to others of any…auto.” The CGL insurer disclaimed coverage based on the endorsement.
In the ensuing coverage litigation, Traub Lieberman represented the insurer, and moved for summary judgment arguing that the “absolute auto exclusion” was dispositive of coverage on the facts alleged, citing case law from New York state courts enforcing similar exclusions to preclude coverage for multi-vehicle accidents. The insured argued in opposition that the outcome should be controlled by Essex Insurance Company v. Grande Stone Quarry, LLC, 82 A.D.3d 1326, 918 N.Y.S.2d 238 (3rd Dep’t 2011), in which the court declined to apply such exclusion in the case of a single-vehicle accident caused by a dangerous condition of the insured’s premises. The federal district judge disagreed with the insured’s argument in this regard, granting Traub Lieberman’s motion for summary judgment in favor of the insurer.
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Eric D. Suben, Traub LiebermanMr. Suben may be contacted at
esuben@tlsslaw.com
Delaware Settlements with Minors and the Uniform Transfer to Minor Act
October 15, 2014 —
Stephen J. Milewski – White and Williams LLPAs a Delaware lawyer, one of the most frequently asked questions I get from insurance clients is: “Do all personal injury settlements with minors need to be approved by the Court?” The answer is and always has been yes. This is true regardless of the amount of the settlement. There have, however, been some recent changes under Delaware law which may help facilitate the process and even reduce the costs associated with settling small tort cases with minors. Traditionally, when settling cases with a minor, a Petition would be filed with the trial court (Superior Court) and then a hearing would be scheduled for the parties to present to the Court the terms of the settlement, explain the plaintiff’s injuries and itemize the fee breakdown. This would be the settlement approval process. After that, the plaintiff would be required to have a guardian appointed over the proceeds, which had to be approved by Chancery Court (Delaware’s Court of Equity). The purpose of this process was to ensure the settlement money going to the minor was managed properly; the net proceeds were generally placed into a bank account not to be used by the guardian or the minor until the minor reached the age of majority. To both the plaintiff, and the insurance carrier paying out the settlement, this process was burdensome and added disproportionate costs to small settlements.
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Stephen J. Milewski, White and Williams LLPMr. Milewski may be contacted at
milewskis@whiteandwiliams.com
There Are Consequences to Executed Documents Such as the Accord and Satisfaction Defense
October 01, 2024 —
David Adelstein - Florida Construction Legal UpdatesA federal government contractor in Jackson Construction Co., Inc. v. U.S., 62 Fed.Cl. 84 (Fed.Cl. 2024) sought delay damages against the government. It lost. The reason for the loss is a crucial reminder that documents parties sign ALWAYS matter. ALWAYS!!
In Jackson Construction Co., the contractor’s delay claim was premised on relocating a waterline. The contractor, however, received additional money for relocating the waterline, but no additional time, and this was memorialized in a modification to the contract (i.e., a change order). In executing the modification for the additional work, the contractor did NOT reserve rights for time or money. Indeed, the modification reflected that the monetary adjustment constitutes full compensation for the additional work including delay, namely:
The contract period of performance remains the same. It is further understood and agreed that this adjustment constitutes compensation in full on behalf of the contractor and his subcontractors and suppliers for all costs and markup directly or indirectly, including extended overhead, attributable to the change order, for all delays related thereto, and for performance of the change within the time frame stated.
Jackson Construction Co., supra, at 90.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Protect Workers From Falls: A Leading Cause of Death
August 14, 2018 —
Mark McGhiey - Construction ExecutiveOne of the leading causes of death for construction workers is falls from elevated surfaces, according to the Bureau of Labor Statistics. In 2016, these accidents accounted for more than 30 percent of all construction fatalities. The top four causes of worker deaths (excluding highway collisions) in the private sector construction industry are:
- falls: 384 (38.7%);
- struck by object: 93 (9.4 percent);
- electrocutions: 82 (8.3 percent); and
- caught-in/between:1 72 (7.3 percent).
One of the most common — and costly — causes of claims occur when construction workers fall from elevated surfaces. These accidents represent more than 30 percent of all construction claim payments.
Reprinted courtesy of
Mark McGhiey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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