Genuine Dispute Summary Judgment Reversed for Abuse of Discretion and Trial of Fact Questions About Expert Opinions
July 27, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Fadeeff v. State Farm General Ins. Co. (No. A155691, filed 5/22/20 ord. pub. 6/8/20), a California appeals court held that triable issues of fact and the trial court’s failure to address a request for a continuance precluded summary judgment for an insurer under the genuine dispute doctrine.
In Fadeeff, the policyholders made a claim to State Farm for smoke damage to their home from the 2015 Valley Fire in Hidden Valley Lake, California. With State Farm’s approval, the insureds retained the restoration company, ServPro, to assist with smoke and soot mitigation. State Farm documented smoke and soot on the interior walls, ceilings and carpeting, and on all exterior elevations, including on the deck and handrail. State Farm made a series of payments on the claim totaling about $50,000.
The insureds then hired a public adjuster and submitted supplemental claims for further dwelling repairs and additional contents replacement, totaling approximately $75,000. State Farm responded by using its own independent adjuster to investigate, who was neither licensed as an adjuster, nor as a contractor. State Farm also retained forensic consultants for the structure and the HVAC system, but neither the independent adjuster nor the consultants were aware that State Farm had an internal operation guide for the use of third-party experts in handling first party claims, which guidelines were therefore not followed. In addition, the consultants made allegedly superficial inspections, with one attributing smoke and soot damage to other sources of combustion, including the insureds’ exterior propane barbecue, an internal wood fireplace and wood stove and candles that had been burned in the living room. None of the consultants asked the insureds when they had last used any of the sources of combustion.
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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Real Estate & Construction News Round-Up (01/25/23) – Artificial Intelligence, Proptech Innovation, and Drone Adoption
February 14, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogThis week’s round-up explores new artificial intelligence tools and their projected impact on real estate agents, key trends driving proptech innovation, barriers to adopting drones in the construction industry, and more.
- Artificial intelligence (AI) has the potential to become an invaluable tool to streamline the selling journey of a property, empower buyers to make informed decisions, and enhance the work of real estate agents. (Alexandra Cain, The Urban Developer)
- Miami real estate agents experiment with the new artificial intelligence tool, ChatGPT, which can generate text based on simple prompts, to write house listings, communicate with developers, and produce content. (Martin Vassolo, Axios)
- Asset owners in Asia and Europe turn to artificial intelligence to collect ESG information across public and private markets, including from residential buildings in Japan. (Hugo Cox, Asian Investor)
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Pillsbury's Construction & Real Estate Law Team
Trial Victory in San Mateo County!
February 24, 2020 —
Wilke FleuryWilke Fleury attorneys
Adriana Cervantes and
Matt Powell recently prevailed at trial in a case involving a real property dispute in San Mateo County.
Wilke Fleury represented the owner of an apartment building in an action against an individual who recently acquired the duplex on the adjoining property. As set forth in the pleadings, the Apartment’s owner, tenants, and invitees, used the property in many ways including access, parking, and recreational purposes for over five years, and the new owner had actual notice of that use before the purchase. Nonetheless, the new owner insisted the Apartment had no right to use the property, and filed an action to quiet title.
Wilke Fleury filed a cross-complaint on behalf of the Apartment alleging that it had a prescriptive easement over the property.
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Wilke Fleury
Build, Baby, Build. But Not Like This, Britain.
March 04, 2024 —
Matthew Brooker - BloombergThe UK needs to do a lot more building. A lack of access to physical and digital connections is holding back the economy, the government says. Besides tackling the housing crisis, the country has to construct more roads, railways, wind farms and reservoirs to open up opportunity and drive productivity. The only problem is that Britain is notoriously inept at delivering infrastructure projects on time and within budget.
The advantage of doing things badly is that at least you get to learn from your mistakes — in theory. Updates this month have offered some illuminating insights into two of the biggest civil-engineering undertakings in the country: High-Speed Rail 2, better known as HS2, and Hinkley Point C, which will be Britain’s first new nuclear power station since 1995. Here are five lessons that can be drawn from the issues encountered by two projects with a combined bill that’s likely to exceed £100 billion ($127 billion):
Don't take budgets too seriously — especially at the start. Fixing an initial budget that was too low may have done much to feed later perceptions that HS2’s costs were spiraling out of control. The original estimate for the expanded train network was set too early and based on “very immature data,” Jon Thompson, appointed executive chair of High Speed 2 Ltd. in February last year, told the House of Commons transport committee. Numbers get more accurate and reliable as work progresses and the quality of information improves. What were viewed as cost blowouts partly reflected this process. The effect was unfortunate, undermining political support for HS2 and providing cover for cutbacks that have reduced the network to a single line between London and Birmingham that fails to fulfill most of its original purpose. To avoid this problem: Stick to a range rather than a single figure, and make sure people understand the uncertainties inherent in early-stage estimates.
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Matthew Brooker, Bloomberg
Construction Insurance Rates Up in the United States
November 20, 2013 —
CDJ STAFFA new report says that construction firms paid from three to seven percent more on average during the first six months of 2013 than they had in the last half of 2012. Firms with poor loss histories paid even more, reaching double-digit increases.
Michael Anderson, of Marsh’s U.S. Construction Practice said that “U.S. construction firms are grappling with a firming insurance market, especially when it comes to liability insurance where underwriters continue to tighten coverage terms and seek rate increases to make up for reduced investment income.” He did note that “the good news for well-managed construction firms is they can still generally find competitive pricing and terms.”
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Challenging a Termination for Default
September 23, 2024 —
David Adelstein - Florida Construction Legal UpdatesNo contractor wants to be terminated for default. It is the harshest contractual recourse. It is a recourse that has implications, particularly in the public sector. However, a party needs to be in a position to support the basis of the termination for default, and the terminated party, in most instances, should not be in a position to imply accept the basis of the default. This applies regardless of the project.
In the federal context: “When a contractor challenges a default termination, the government bears the burden of establishing the validity of the termination.” Sergent’s Mechanical Systems, Inc. v. U.S., 2024 WL 4048175, *7 (Fed.Cl. 2024) (internal quotation and citation omitted). Once the government establishes the default, “the contractor bears the burden of establishing that the default was excused by fault of the government.” Id. at *8 (internal quotation and citation omitted).
Relevant considerations as to whether the contractor is in default include the contractor’s failure to meet contract specifications or the required schedule. Sergent’s Mechanical Systems, supra, at *8. “[T]here is ‘a requirement that the contractor give reasonable assurances of performance in response to a validly issued cure notice.” Id. (internal quotation and citation omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
A Landlord’s Guide to California’s New Statewide Rent Control Laws
May 18, 2020 —
Colton Addy - Snell & Wilmer Real Estate Litigation BlogApplicability of California’s Rent Control Laws: California Civil Code Sections 1946.2 and 1947.12 took effect on January 1, 2020, and implement statewide rent control in California for most residential properties. The rent control laws, however, do not apply to a rental property that was issued a certificate of occupancy in the last 15 years. (Civ. Code §§ 1947.12(d)(4), 1946.2(e)(7)). The statutes also do not apply to most single-family residences, provided that (a) the owner is not a real estate investment trust, a corporation, or a limited liability company where one of the members is a corporation, and (b) the required statutory language is included in the lease agreement for tenancies commencing or renewing on or after July 1, 2020. (Civ. Code §§ 1947.12(d)(5), 1946.2(e)(8)).
Annual Increases Permitted Under California’s Rent Control Laws: Commencing on January 1, 2020, unless otherwise permitted by California law, a Landlord cannot increase the gross rental rate for a rental unit over a continuous 12-month period more than the change in the regional cost of living index where the property is located plus 5%, and gross rental rate increases are subject to a maximum cap of 10% over a continuous 12-month period regardless of the change in the cost of living index. (Civ. Code § 1947.12(a)(1)). The gross rental rate is determined using the lowest rental amount charged in any month in the immediately preceding 12 months. (Id.) Any incentives, discounts, concessions, or credits are not taken into account. (Id.) Even if a rent increase does not exceed the amount permitted under the statute, a Landlord is prohibited from increasing rent more than twice in any continuous 12-month period. (Civ. Code § 1947.12(a)(2)).
Retroactive Applicability of Restrictions on Rent Increases: Although the statute took effect on January 1, 2020, the statute retroactively applies to all rent increases that occurred on or after March 15, 2019. (Civ. Code § 1947.12(h)(1)). If a landlord increased the rent amount more than the amount permitted under California Civil Code Section 1947.12(a)(1) after March 15, 2019, and prior to January 1, 2020, the rent amount on January 1, 2020, is reduced to the amount of the rent on March 15, 2019, plus the maximum permissible increase under California Civil Code Section 1947.12(a)(1). (Civ. Code § 1947.12(h)(2)). The Landlord does not have to refund the tenant any rent payments that were in excess of the permissible rent increase that the tenant made prior to January 1, 2020. (Id.)
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Colton Addy, Snell & WilmerMr. Addy may be contacted at
caddy@swlaw.com
Dave McLain named Barrister’s Best Construction Defects Lawyer for Defendants for 2019
January 20, 2020 —
David M. McLain – Colorado Construction LitigationThe attorneys and staff at Higgins, Hopkins, McLain & Roswell are proud to announce that Law Week Colorado named Founding Member Dave McLain as the 2019 People’s Choice for Best Construction Defects Lawyer for Defendants. According to the publication:
Law Week Colorado asked its readership to weigh in on the best attorneys in just about every practice area we could think of. We received hundreds of responses and sifted through the votes for each category to determine the “People’s Choice” winner – the top attorney in each practice area according to other attorneys. And then we handed it to the “Barrister” (the hive mind of Law Week staff, supplemented by public votes and a healthy dose of additional research) to determine the Barrister’s Choice.
In recognizing Mr. McLain this year, Law Week Colorado stated:
Previously appearing in Law Week’s 2015 Barrister’s Best issue [in which he was recognized as the Barrister’s Choice as Best Construction Defects Lawyer for Defendants], David McLain participates in numerous speaking engagements on construction defects claims and is seen as a leader in the field. His extensive experience over the last two decades of practice speaks for itself.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
