Insureds' Experts Insufficient to Survive Insurer's Motion for Summary Judgment
October 17, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe magistrate recommended that insurer's motion for summary judgment be granted due to the insureds' expert's inability to present genuine issues of material fact. Walker v. Century Sur. Co., 2023 U.S. Dist. LEXIS 142408 (E.D. Texas July 17, 2023).
The insureds' property sustained damage from Hurricane Laura. Colonial Claims inspected the property for Century and reported that a portion of the roof was damaged by the hurricane. Century paid insureds $2,212,34. Van Fisher, an engineer with Envista Forensics, then inspected the interior of the property on Century's behalf. Fisher reported that there was some covered interior damage caused by a leak from a storm-created opening in the roof. However, Fisher further reported that there was other interior damage caused by existing water leaks not attributed to the hurricane and thus not covered by the policy. Century then paid the insureds an additional $485.05 based on Fisher's inspection.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Design and Construction Defects Not a Breach of Contract
February 14, 2013 —
CDJ STAFFThe California Court of Appeals tossed out a breach of contract award in Altman v. John Mourier Construction. The decision, which was issued on January 10, 2013, sent the construction defect case back to a lower court to calculate damages based on the conclusions of the appeals court.
The case involved both design issues and construction issues. According to the plaintiffs’ expert, the design plans did not make the buildings sufficiently stiff to resist the wind, and that the framing was improperly constructed, further weakening the structures, and leading to the stucco cracking. Additionally, it was alleged that the roofs were improperly installed, leading to water intrusion. The contractor’s expert “agreed the roofs needed repair, but disputed what needed to be done to repair the roofs and the cost.”
The jury rejected the plaintiffs’ claims of product liability and breach of warranty, but found in their favor on the claims of breach of contract and negligence. The plaintiffs were awarded differing amounts based on the jury’s conclusions about their particular properties.
Both sides sought new trials. JMC, the contractor, claimed that the jury’s verdicts were “inconsistent in that the relieved JMC of liability for strict products liability and breach of warranty, but found JMC liable for breach of contract and negligence.” The plaintiffs “opposed the setoff motion on the ground that the jury heard evidence only of damages not covered by the settlements.” Both motions were denied. After this, the plaintiffs sought and received investigative costs as damages. JMC appealed this amended judgment.
The appeals court rejected JMC’s claims that evidence was improperly excluded. JMC sought to introduce evidence concerning errors made by the stucco subcontractor. Earlier in the trial, JMC had insisted that the plaintiffs not be allowed to present evidence concerning the stucco, as that had been separately settled. When they wished to introduce it themselves, they noted that the settlement only precluded the plaintiffs from introducing stucco evidence, but the trial court did not find this persuasive, and the appeals court upheld the actions of the trial court. Nor did the appeals court find grounds for reversal based on claims that the jury saw excluded evidence, as JMC did not establish that the evidence went into the jury room. Further, this did not reach, according to the court, a “miscarriage of justice.”
The court rejected two more of JMC’s arguments, concluding that the negligence award did not violate the economic loss rule. The court also noted that JMC failed to prove its contention that the plaintiffs were awarded damages for items that were covered in settlements with the subcontractors.
The appeals court did accept JMC’s argument that the award for breach of contract was not supported by evidence. As the ruling notes, “plaintiffs did not submit the contracts into evidence or justify their absence; nor did plaintiffs provide any evidence regarding contract terms allegedly breached.”
The court also did not allow the plaintiffs to claim the full amount of the investigative costs. Noting that the trial court had rational grounds for its decision, the appeals court noted that “the jury rejected most of the damages claimed by plaintiffs, and the trial court found that more than $86,000 of the costs itemized in plaintiffs’ invoices ‘appear questionable’ as ‘investigation’ costs/damages and appeared to the trial court to be litigation costs nonrecoverable under section 1033.5.”
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Fact of Settlement Communications in Underlying Lawsuits is Not Ground for Anti-SLAPP Motion in Subsequent Bad Faith Lawsuit
August 24, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (No. G057796, filed 5/27/20, ord. pub. 6/18/20), a California appeals court ruled that an insurance bad faith lawsuit alleging a variety of claim handling misconduct in defending the insured was not subject to an insurer’s special Strategic Lawsuit Against Public Participation (SLAPP) motion to strike because, while the alleged acts were generally connected to litigation, they did not include any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body and, therefore, did not constitute protected activity under California’s anti-SLAPP statute.
In Trilogy Plumbing, the policyholder was sued in 33 different construction defect lawsuits, some of which Navigators defended, and others which were denied or had the defense withdrawn. The Navigators’ policies were subject to a $5,000 deductible, and Trilogy alleged that Navigators breached the contracts by “demanding deductible reimbursement amounts greater than the policies’ $5,000 stated deductible, and by seeking reimbursement of ordinary defense fees and expenses as if they were subject to deductible reimbursement,” “claiming a right to seek reimbursement from Trilogy for defense fees and expenses Navigators paid for the benefit of third-party additional insureds,” “providing conflicted defense counsel who took instructions only from Navigators without disclosing conflicts of interest,” “failing to reasonably settle cases and by withdrawing [the] defense as a strategic means of trying to force Trilogy to fund its own settlements,” “misrepresenting its deductible provisions,” “refusing to account for deductible amounts it charges and collects,” and others.
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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New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works Contracts
December 16, 2023 —
Nicholas J. Zaita & Brian Glicos - Peckar & Abramson, P.C.Introduction
In a matter of “first impression,” on November 30, 2023, the Appellate Division affirmed the New Jersey Superior Court decision in
Ernest Bock & Sons-Dobco Pennsauken Joint Venture v. Township of Pennsauken and Terminal Construction Corp., finding that the New Jersey Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48 to -56.57 (“PWCRA” or the “Act”), applies to a joint venture formed for the sole purpose of bidding on a public works contract. Therefore, the Court held that the PWCRA requires any joint venture bidding on public works projects in New Jersey to be registered under the Act at the time of bid submission. Accordingly, the Township of Pennsauken acted within its authority and properly rejected the bid submission of the Ernest Bock & Sons-Dobco Joint Venture which was not registered under the Act in the name of the joint venture at the time of its bid submission, despite the individual members of the joint venture being registered.
Reprinted courtesy of
Nicholas J. Zaita, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Zaita may be contacted at nzaita@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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BofA Said to Near Mortgage Deal for Up to $17 Billion
August 06, 2014 —
Tom Schoenberg – BloombergBank of America Corp. is nearing a $16 billion to $17 billion settlement with the U.S. Justice Department to resolve probes into sales of mortgage-backed bonds in the run-up to the financial crisis, a person familiar with the matter said.
Under the proposed terms, the bank would pay about $9 billion in cash and the rest in consumer relief to settle federal and state claims, according to the person, who asked not to be named because the negotiations are private. Details of the proposed accord, such as the relief and a statement of facts, are still being negotiated, the person said.
The outlines of the deal were reached last week after a phone call between Attorney General Eric Holder and Bank of America Chief Executive Officer Brian T. Moynihan, the person said. During the July 30 call, Holder said that the government was ready to file a lawsuit in New Jersey if the bank didn’t offer an amount closer to the department’s demand of about $17 billion, according to the person.
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Tom Schoenberg, BloombergMr. Schoenberg may be contacted at
tschoenberg@bloomberg.net
Real Estate & Construction News Roundup (06/28/23) – Combating Homelessness, U.S. Public Transportation Costs and the Future of Commercial Real Estate
August 07, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, we examine the Supreme Court’s ruling regarding water supply responsibilities, the federal reserve chair’s reaction to possible banking losses, several analyses of the future of commercial real estate, and more!
- California Representative Maxine Waters has introduced several pieces of legislation aimed at combating homelessness and fixing the increasingly tumultuous affordable housing situation. (Eliza Relman, Business Insider)
- The Supreme Court ruled in favor of the federal government in a case that decided responsibility over water supply as well as the overall dissemination of water usage for the Navajo Nation. (Ariane de Vogue, CNN)
- Unlike other nations with similar construction, the United States’ public transportation has extremely high costs. (Darian Woods, Corey Bridges, Viet Le, NPR)
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Pillsbury's Construction & Real Estate Law Team
Zillow Seen Dominating U.S. Home Searches with Trulia
July 30, 2014 —
Alex Sherman, Jeffrey McCracken and Prashant Gopal – BloombergA Zillow Inc. (Z) purchase of Trulia Inc. (TRLA) would create a dominant search website for U.S. house hunters, reshaping an online industry the companies helped popularize.
Zillow, the largest U.S. real estate website, is seeking to buy No. 2 Trulia for as much as $2 billion in cash and stock, according to people with knowledge of the matter. An agreement may be announced as soon as next week, said one of the people, who asked not to be identified because the information is private. Talks are ongoing and may not lead to a deal.
The companies help buyers and renters find information on homes, generating revenue by selling advertising and charging Realtors to place their listings prominently. Together the Zillow and Trulia networks had more than 68 million unique visitors in June, representing about 71 percent of all visitors to ComScore’s real estate category. That includes desktop and mobile users, ComScore said. A combination would make it hard for rivals to compete, said Steve Murray, president of Real Trends Inc. in Castle Rock, Colorado.
Mr. Sherman may be contacted at asherman6@bloomberg.net; Mr. McCracken may be contacted at jmccracken3@bloomberg.net; Mr. Gopal may be contacted at pgopal2@bloomberg.net
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Alex Sherman, Jeffrey McCracken and Prashant Gopal, Bloomberg
Homeowners Should Beware, Warn Home Builders
November 20, 2013 —
CDJ STAFFIn the aftermath of a tornado in central Illinois, home builders are warning homeowners to be wary of scam artists. “We need to protect consumers from repair scams,” said Lisa Scott, the executive director of the Home Builders Association of Greater Peoria. “After a devastating storm, people come in from outside the area to offer help,” she said, noting that some will be offering help they won’t actually provide.
“This isn’t about supporting our members,” she said, “this is about having somebody who stands by their work instead of paying cash for a roof job and having no one to call when a few months later, it starts leaking.” She further warns, “you shouldn’t be paying cash. You should have a contract.”
One home builder, David Whitehurst, owner of P & W Builders, noted that “there will be a lot of people out there trying to make a quick buck that aren’t qualified to do the work.”
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