COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New York Climate Mobilization Act Update: Reducing Carbon Emissions and Funding Solutions

August 30, 2021 — Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog
In our June 16 CMA Update, we discussed how the New York City Climate Mobilization Act (CMA) will affect building owners and the market for CMBS mortgage loans (loans pooled and resold as commercial mortgage-backed securities). (For more information on C-PACE financing, see Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City.) In this update, we will outline some of the funding solutions that are available to New York City building owners looking to retrofit their buildings in order to comply with the CMA’s requirements. Funding Solutions for Covered Building Owners The cost of retrofitting buildings to incorporate energy efficient features and to achieve compliance with the CMA can be daunting. Read the court decision
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Reprinted courtesy of Caroline A. Harcourt, Pillsbury
Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com

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San Diego Appellate Team Prevails in Premises Liability Appeal

December 06, 2021 — Corinne Bertsche, Jeffry Miller & Tracy Forbath - Lewis Brisbois
San Diego, Calif. (October 28, 2021) - San Diego Appellate Practice Partners Jeffry A. Miller and Corinne C. Bertsche, along with Associate Tracy D. Forbath, recently obtained a win on appeal when California's Court of Appeal for the Second Appellate District, Division Four affirmed the trial court’s grant of a client homeowners association’s motion for summary judgment. In the underlying matter, the plaintiff alleged claims for premises liability and negligence for injuries he sustained when tripping over an uplift of two misaligned adjacent slabs of concrete sidewalk, measuring 1.25 inches and located next to a condominium complex. The appellate court agreed that the defect in question was a trivial defect as a matter of law, despite the plaintiff’s arguments that there was a triable issue of material fact as to whether the uplift’s dangerousness was exacerbated by the presence of aggravating factors. The appellate court found that the plaintiff’s expert declaration did not support the alleged aggravating factors with admissible evidence, and that the trial court did not abuse its discretion in excluding it. Reprinted courtesy of Corinne Bertsche, Lewis Brisbois, Jeffry Miller, Lewis Brisbois and Tracy Forbath, Lewis Brisbois Ms. Bertsche may be contacted at Corinne.Bertsche@lewisbrisbois.com Mr. Miller may be contacted at Jeff.Miller@lewisbrisbois.com Ms. Forbath may be contacted at Tracy.Forbath@lewisbrisbois.com Read the court decision
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Drill Rig Accident Kills Engineering Manager, Injures Operator in Philadelphia

August 10, 2021 — Stephanie Loder - Engineering News-Record
Philadelphia officials and engineering firm Langan have confirmed that a company project manager and geotechnical engineer died July 6 in a nighttime drill rig accident while he was on site to inspect foundation work for a pedestrian bridge project. Reprinted courtesy of Stephanie Loder, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Louisiana Court Holds That Application of Pollution Exclusion Would Lead to Absurd Results

October 21, 2019 — Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery Blog
A Louisiana court recently denied an excess insurer’s bid for summary judgment, finding that the insurer’s interpretation of a pollution exclusion would lead to “absurd results.” Central Crude, Inc., a crude oil transporter company, experienced an oil pipeline leak, allegedly causing damage to property belonging to Columbia Gas Transmission Company. Columbia Gas sued Central Crude seeking compensatory damages and injunctive relief to compel remediation of the site. Central Crude sought coverage under a CGL primary insurance policy issued by Liberty Mutual. The insurer initially agreed to cover Central Crude’s “reasonable and necessary costs” relating to the incident, but later refused to defend or indemnify Central Crude for any costs incurred from the incident. As a result, Central Crude brought suit against Liberty Mutual and its excess insurer, Great American, to enforce coverage. Great American moved for summary judgment arguing coverage was excluded by the excess policy’s pollution exclusion, which precludes coverage for injury “arising out of a discharge of pollutants.” Central Crude responded arguing that the exclusion’s applicability was invalidated or at least rendered ambiguous by the Following Form Endorsements, which reflect an intent to mirror the coverage afforded under the primary Liberty Mutual policy, and because coverage appears to be specifically authorized through the Premises Operations Liability Endorsement. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Hentschel may be contacted at dhentschel@HuntonAK.com Read the court decision
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California Department of Corrections Gets Hit With the Prison Bid Protest Blues

October 16, 2018 — Garret Murai - California Construction Law Blog
“I’m breakin’ rocks in the hot sun . . . I fought the law and the law won . . . I needed money ’cause I had none . . . I fought the law and the law won” – The Clash, I Fought the Law (1978) In the recent case, West Coast Air Conditioning Company, California Department of Corrections and Rehabilitation, Case No. D071106 (February 22, 2018), those lyrics could be aptly revised to, “the law fought the courts and the courts won.” West Coast Air Conditioning Company, Inc. v. California Department of Corrections In February 2015, the California Department of Corrections and Rehabilitation (CDCR) published an invitation for bids for a new central air conditioning plant for the Ironwood State Prison in Blythe, California. West Coast Air Conditioning Company, Inc., Hensel Phelps Construction Co., and four other companies submitted bids. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Montana Supreme Court Tackles Decade-Old Coverage Dispute Concerning Asbestos Mineworker Claims

December 20, 2021 — Patricia B. Santelle & Paul A. Briganti - White and Williams
On November 23, 2021, the Montana Supreme Court issued an almost unanimous decision in National Indemnity Company v. State of Montana, a ten-year-old coverage dispute arising from claims against the State of Montana alleging it had failed to warn of asbestos dust conditions at vermiculite mining and milling operations in and around Libby, Montana (the Libby Mine) run by W.R. Grace & Company and its predecessors. Affirming in part and reversing in part rulings by the trial court that culminated in a $98 million judgment against the State’s CGL insurer from 1973 to 1975, the court addressed issues including the duty to defend/estoppel, the number of occurrences, “trigger of coverage,” and, in a case of first impression, allocation under Montana law. Whether the Insurer Breached the Duty to Defend Depended Upon the Timeframe The court looked at whether (1) the insured provided sufficient information to bring the claims within the possibility of coverage under the subject policy and (2) the insurer gave “the necessary substance to” fulfilling its duty to defend at four points in the relevant timeframe:

1. The insurer did not breach its duty at the time the State initially tendered the Libby Mine claims because the State defended the claims through its self-insurance program, hired its own counsel, managed the litigation, made its own defense decisions, and took the position with the insurer that the matter was “under control” and “nothing was left to be done[.]”

Reprinted courtesy of Patricia B. Santelle, White and Williams and Paul A. Briganti, White and Williams Ms. Santelle may be contacted at santellep@whiteandwilliams.com Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Read the court decision
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Foreclosing Junior Lienholders and Recording A Lis Pendens

July 13, 2020 — David Adelstein - Florida Construction Legal Updates
When you foreclose on a construction lien, there are a couple of pointers to remember. First, you want to make sure you include junior lienholders or interests you are looking to foreclose (or you want to be in a position to amend the foreclosure lawsuit to identify later). The reason being is you want to foreclose their interests to the property. “[J]unior interest holders are a narrow class of mortgagees whose interest in the underlying property is recorded after the foreclosing contractor’s claim of lien is filed. This class is routinely joined to the construction lien enforcement action under section 713.26 to allow the construction lienor to foreclose out the junior lienholder’s interest in the property encumbered by the construction lien.” See Decks N Sunch Marine, infra. Second, you want to record a lis pendens with the lien foreclosure lawsuit. Failure to do so could be problematic because Florida Statute s. 713.22(1) provides in part, “A lien that has been continued beyond the 1-year period by the commencement of an action is not enforceable against creditors or subsequent purchasers for a valuable consideration and without notice, unless a notice of lis pendens is recorded.” Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Homeowner’s Claims Defeated Because “Gravamen” of Complaint was Fraud, not Breach of Contract

September 29, 2021 — Garret Murai - California Construction Law Blog
Be careful what you wish for or, as in the next case, what you plead. In Vera v. REL-BC, LLC, Case Nos. A155807, A156823, and A159141 (June 30, 2021) 1st District Court of Appeal, a the buyer of a remodeled home who asserted breach of contract and fraud claims against a developer discovered that her claims, including her breach of written contract claim, was subject to a shorter 3 year statute of limitations because the “gravamen” of her complaint was fraud. The REL-BC Case Homeowner Adriana Vera purchased a remodeled home in Oakland, California from developers REL-BC, LLC and SNL Real Estate Solutions, LLC. The developers had purchased the home in July 2011, remodeled it, and sold it to Vera in November 2011. As is typical in such transactions, the purchase agreement for the house required that the sellers disclose known material facts and defects affecting the property. In their disclosure, the sellers stated that they were not aware of any significant defects or malfunctions with respect to the property. The disclosure also stated that the sellers were not aware of any water intrusion issues with respect to the property. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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