Cambridge Massachusetts Building Expert Directory

Court Clarifies Sequence in California’s SB800

December 20, 2012 — CDJ STAFF
As California’s Right-To-Repair law, SB800, nears its ninth birthday, it has remained “largely untested in the legal system” as noted by Megan MacNee of Wood, Smith, Henning & Berman LLP on the site RealEstateRama. She writes that some homeowners have requested documents prior to filing a claim, which she describes as an attempt to “game the system,” and “analogous to requiring a party to litigation to comply with discovery before a complaint is filed.” The court determined that homeowners may not request documents from the builder until they have actually filed a claim. The court noted that SB800 lacks any clear indication that homeowners may request documents before filing a claim (and also does not indicate that a builder would have to provide documents in these circumstances). The court concluded that the section that sets up the prelitigation procedures occurs before they section on documents discovery. “Because the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.” Read the court decision
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Illinois Appellate Court Addresses Professional Services Exclusion in Homeowners Policy

August 03, 2022 — James M. Eastham - Traub Lieberman
In Stonegate Ins. Co. v. Smith, 2022 IL App (1st) 210931, the Insured was performing plumbing work at a multi-story townhouse when a fire ensued causing damage to the second story unit. Although a carpenter by trade, the Insured was performing plumbing work consisting of the replacement of a shower valve as a favor for a friend. To accomplish the task, the Insured utilized a small propane torch to attempt to remove the old water piping to the shower. In doing so, the insulation behind the bathroom wall caught fire and the flame spread upward to the neighboring unit. Stonegate had issued a homeowner’s policy to the Insured during the relevant time period. The homeowner's policy excluded coverage for property damage "[a]rising out of the rendering of or failure to render professional services." Subsequent to tender of the loss, Stonegate initiated a declaratory judgment action seeking a declaration that it owned no duty to defend or indemnity pursuant to the professional services exclusions. In finding in favor of the Insured, the Court began its analysis by noting that the homeowner's policy did not define the term "professional services" such that it was the Court’s task to determine whether the Insured’s work qualified as a "professional service" for purposes of the exclusion. The Court further prefaced its holding by stating that for an exclusionary clause to effectively deny coverage, its applicability must be clear and free from doubt because any doubts as to coverage will be resolved in favor of the insured. Looking to Illinois case precedent, the Court found that the term "professional service" is not limited to services for which the person performing them must be licensed by a governmental authority. Rather, "professional services" encompass any business activity conducted by an insured that (1) involves specialized knowledge, labor, or skill, and (2) is predominantly mental or intellectual as opposed to physical or manual in nature. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

Insurer's Quote on Coverage for Theft by Hacker Creates Issue of Fact

December 16, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court found that the insurer's quote created an issue of fact on whether loss caused by a computer hacker would be covered. Metal Pro Roofing, LLC v. Cincinnati Ins. Co., 2019 Ind. App. LEXIS 355 (Ind. Ct. App. Aug. 9, 2019). The insureds, Metal Pro Roofing, LLC and Cornett Restoration, LLC ("LLC's") discovered that their bank accounts had been hacked and over $78,000 stolen. They submitted claims to their insurer, Cincinnati. Coverage was denied, and the LLCs filed suit. Cross-motions for summary judgment were filed, and the court granted summary judgment to Cincinnati. The "Forgery or Alternation" coverage applied to losses resulting directly from the "'forgery' or alteration of checks, drafts, promissory notes, or similar written promises, order or directions to pay a sum of money." "Forgery" was defined as "the signing of the name of another person or organization with the intent to deceive." The LLCs did not cite any evidence that the hacker "signed" anything, let alone that they signed "the name of another person or organization." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Is Settling a Bond Claim in the Face of a Seemingly Clear Statute of Limitations Defense Bad Faith?

October 11, 2021 — Christopher G. Hill - Construction Law Musings
We have often discussed payment and performance bonds here at Construction Law Musings, most often in the context of payment bond claims relating to federal and state-owned. construction projects. A late 2020 case out of the Eastern District of Virginia federal court examined what happens after such a claim, in this case, based upon a developer’s subdivision bonds, is made and negotiations commence between the surety and the claimant. Specifically, Fidelity & Deposit Co. of Maryland v. Ransgate Corp., et. al. looked at claims for indemnity by a surety and the principal/indemnitors in the event that the Surety settled such a claim. In the Ramsgate case, Surety provided two separate subdivision subcontract bonds to Ramsgate. Pursuant to those bonds and the indemnity clause of its indemnity agreement, the Surety sought reimbursement of its $80,000.00 settlement payment to the local building authority that it paid to resolve what was originally a claim for over $420,000.00 by the City. The project was started in 2002 and after many years of failures to complete (according to the City of Suffolk), the City made its claim for expenses in 2017. Ramsgate claimed that it completed the subdivisions in 2003. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Newmeyer Dillion Partner Louis "Dutch" Schotemeyer Named One of Orange County's 500 Most Influential by Orange County Business Journal

January 25, 2021 — Newmeyer Dillion
Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that partner Louis "Dutch" Schotemeyer has been selected to the Orange County Business Journal's fifth annual "OC 500 Directory of Influence" list. The 2020 list recognizes the 500 most influential leaders who have made a positive mark on Orange County's business community over the last year. Located in the Newport Beach office, Schotemeyer's practice areas include, Real Estate Litigation, Construction Operations and Litigation, Business Litigation and Labor & Employment. Additionally he provides risk management and legal advice to companies without dedicated in-house legal counsel. A seasoned litigator, he leverages his litigation experience to advise clients, including C-Level executives, regarding potentially litigious situations that touch their business operations and his practice areas. "Dutch's deep knowledge and experience as in-house counsel has informed his business-first approach to complex legal disputes and made him an invaluable resource to the Orange County business community," said Firm Managing Partner Paul Tetzloff. "We are pleased that Dutch's contributions to the community have been recognized by Orange County Business Journal." Schotemeyer rejoined the firm in September after serving as Vice President and Associate General Counsel for William Lyon Homes, Inc., and Vice President and Deputy General Counsel for Taylor Morrison. While at William Lyon Homes, he was named 2019 "General Counsel Rising Star" by the Orange County Business Journal. The full "OC 500 Directory of Influence" list was distributed in a special December supplement. About Newmeyer Dillion For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com. Read the court decision
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Settlement Reached on Troubled Harbor Bridge in Corpus Christi, Texas

November 16, 2023 — Daniel Tyson - Engineering News-Record
A $400-million settlement was reached between the Texas Dept. of Transportation and general contractor Flatiron/Dragados over Corpus Christi’s Harbor Bridge in mid-October. The accord ends all disagreements and damage claims concerning the cable-stayed bridge, a project halted multiple times. Reprinted courtesy of Daniel Tyson, Engineering News-Record Mr. Tyson may be contacted at tysond@enr.com Read the full story... Read the court decision
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General Contractors Have Expansive Common Law and Statutory Duties To Provide a Safe Workplace

February 18, 2020 — Paul R. Cressman Jr. - Ahlers Cressman & Sleight PLLC
On November 21, 2019, the Washington Supreme Court handed down its decision in Vargas v. Inland Washington, LLC.[1] At the time of the incident in May 2013, Mr. Vargas, the plaintiff, was helping pour the concrete walls for what would become a parking garage for an apartment building. He was employed by Hilltop Concrete Construction. Inland Washington was the general contractor, and subcontracted with Hilltop to pour concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping and Miles Sand & Gravel to provide a pump truck, certified pump operator, and supply concrete. A rubber hose carrying concrete whipped Mr. Vargas in the head. It knocked him unconscious and caused a traumatic brain injury. Vargas, through his guardian ad litem, along with his wife and children, sued Inland Washington, Ralph’s, and Miles. The trial court initially dismissed on summary judgment Vargas’ claims that Inland Washington was vicariously liable for the acts of Hilltop, Ralph’s, and Miles. Later, the trial court also granted Inland Washington’s motion for summary judgment that it was not directly liable as a matter of law. Read the court decision
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Reprinted courtesy of Paul R. Cressman Jr., Ahlers Cressman & Sleight PLLC
Mr. Cressman may be contacted at paul.cressman@acslawyers.com

The California Legislature Passes SB 496 Limiting Design Professional Defense and Indemnity Obligations

November 21, 2017 — Mark Himmelstein & Jenny Guzman – Newmeyer & Dillion LLP
Originally published by CDJ on June 15, 2017 Since 2008 when the California legislature limited subcontractor indemnity obligations, the design professional community has been shouting “what about us?” Well, the legislature finally responded and a new law that limits design professional’s defense and indemnity obligations to their percentage of fault goes into effect on January 1, 2018. THE NEW LAW – SB 496 SB 496 amends California Civil Code section 2782.8 and states that indemnity agreements must be limited to the negligence, recklessness or willful misconduct of the indemnitee (i.e. no more Type I indemnity with design professionals). The amendment also provides that “in no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault”, with a limited opportunity for reallocation in the event another defendant is judgment proof. However, the duty to defend still remains and still arises at the time of the tender of the defense (both issues that were unsuccessfully targeted by the design professional lobbyists). Reprinted courtesy of Mark Himmelstein, Newmeyer & Dillion LLP and Jenny Guzman, Newmeyer & Dillion LLP Mr. Price may be contacted at mark.himmelstein@ndlf.com Ms. Zucker may be contacted at jenny.guzman@ndlf.com Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES