The Risks and Rewards of Sustainable Building Design
July 25, 2021 —
Caroline A. Harcourt & Adam Weaver - Gravel2GavelThe shift towards a “greener” environment has resulted in cities and states implementing electrification mandates, which will have a major impact on both current and future building design. Currently, most commercial and residential end users are already all-electric. However, there are some exceptions, such as space and water heating, that use a significant amount of energy. Several states, including California and New York, have cities that have introduced legislation requiring new construction to be all-electric. This means, for example, using electricity for heating rather than fossil fuels such as natural gas. Mandate or not, building owners and developers should consider the risks and rewards of an all-electric design.
General Rewards
- Reaching Climate Goals: As part of the Clean Energy Plan, as described in a previous post, President Biden has created a goal for the United States of achieving a carbon pollution-free American utility sector by 2035. Because residential and commercial building account for 40 percent of energy consumption in the United States, all-electric building designs will help governments and businesses reach the ambitious climate goals that have been set for the coming years.
Reprinted courtesy of
Caroline A. Harcourt, Pillsbury and
Adam Weaver, Pillsbury
Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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The Importance of a Notice of Completion to Contractors, Subcontractors and Suppliers
August 12, 2024 —
William L. Porter - Porter Law GroupThe recording of a valid “Notice of Completion” with the County Recorder is an event of significance to owners, contractors, subcontractors and suppliers alike. The recording of a Notice of Completion is one of several methods used to trigger the time period for the recording of mechanics liens and service of stop payment notices. Although the recording of a Notice of Completion is not absolutely required on any given project, all those working in the construction industry should understand its significance.
When a valid Notice of Completion has not been recorded in relation to a construction project, a contractor, subcontractor, or supplier might from ninety to one hundred fifty days after completion of the project to record a mechanics lien or serve a stop payment notice to secure payment for their services on the project, depending on the facts. However, if a valid Notice of Completion is recorded, then the deadline under most circumstances accelerates and subcontractors and suppliers must record a mechanics lien or serve a stop payment notice within only thirty days thereafter. Under the same circumstances, a prime contractor has only sixty days after the recording of a valid Notice of Completion to record a mechanics’ lien. Failure to meet these deadlines often results in loss of the right to a mechanics lien or stop payment notice. There are limited exceptions to these general deadlines, depending on the facts. If you believe you may have missed an important deadline to seek collection of a construction debt, you should consult with a construction attorney immediately to secure your avenues of collection, including the mechanics lien and stop payment notice remedies, if still available.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Eleventh Circuit Finds No “Property Damage” Where Defective Component Failed to Cause Damage to Other Non-Defective Components
October 11, 2021 —
Anthony L. Miscioscia & Margo Meta - White and WilliamsIn Florida, damage caused by faulty workmanship constitutes “property damage;” however, the cost of repairing or removing defective work does not. Amerisure Mutual Insurance Company v. Auchter Company, 673 F.3d 1294 (11th Cir. 2012) (Auchter). But what happens when the cost of repairing or removing defective work results in loss of use of the tangible property which is not physically injured?
The United States Court of Appeals for the Eleventh Circuit was recently faced with this question in Tricon Development of Brevard, Inc. v. Nautilus Insurance Company, No. 21-11199, 2021 U.S. App. LEXIS 27317 (11th Cir. Sep. 10, 2021). Tricon arose out of the construction of a condominium. Tricon was hired to serve as general contractor for the project and hired a subcontractor to fabricate and install metal railings. The railings installed by the subcontractor were defective and damaged, improperly installed, and failed to meet the project’s specifications. Tricon filed an insurance claim with Nautilus Insurance Company, the subcontractor’s commercial general liability insurer, for the cost to remove and replace the railings.[1]
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Margo Meta, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Meta may be contacted at metam@whiteandwilliams.com
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Jury's Verdict for Loss Caused by Collapse Overturned
September 18, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Florida Court of Appeal overturned the jury's verdict findng loss caused by collapse. Universal Prop. & Cas. Ins. Co. v. Caboverde, 2023 Fla. App. LEXIS 4474 (Fla. Ct. App. June 28, 2023).
The insured homeowners had two claims. One was a 2016 ceiling collapse; the second was loss caused by Hurricane Irma in 2019. The homeowners' policy covered collapse defined as "an abrupt falling down or caving in of a building or any part of a building with the result that the building . . . cannot be occupied for its intended purpose." Collapse had to be caused by, among other things, decay or insect damage that was hidden from view.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Suzanne Pollack Elected to Lawyers Club of San Diego 2021 Board of Directors
May 03, 2021 —
Suzanne Pollack - Lewis BrisboisSan Diego Associate Suzanne Pollack was recently elected to the 2021 Lawyers Club of San Diego Board of Directors for a three-year term that will begin on July 1, 2021. Founded in 1972, the mission of Lawyers Club - San Diego’s largest specialty bar association - is to advance the status of women in the law and society.
“I am honored to be joining Lawyers Club’s Board of Directors, particularly after this last year, during which we saw the dramatic impact that the pandemic had upon women in the workforce," said Ms. Pollack. "Promoting equality, diversity, and advocacy has never been more important, and I look forward to working with the Board to further these goals.”
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Suzanne Pollack, Lewis BrisboisMs. Pollack may be contacted at
Suzanne.Pollack@lewisbrisbois.com
California Supreme Court Adopts “Vertical Exhaustion” in the Long-Storied Montrose Environmental Coverage Litigation
June 08, 2020 —
Gregory S. Capps & Michael E. DiFebbo - White and Williams LLPOn April 6, 2020, the California Supreme Court issued a decision that held a policyholder is entitled to access available excess coverage under any excess policy once it has exhausted directly underlying excess policies for the same policy period in Montrose Chemical Corporation v. the Superior Court of Los Angeles County, Supreme Court of California, case number S244737. In its unanimous decision adopting this “vertical exhaustion” requirement, the court rejected the “horizontal exhaustion” rule urged by the policyholder’s excess insurers, under which the policyholder would have been able to access an excess policy only after it had exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability occurred.
In 1990, Montrose sought coverage under primary policies and multiple layers of excess policies issued for periods from 1961 through 1985 for environmental damage liabilities arising from its production of insecticide in the Los Angeles area between 1947 and 1982. The ongoing dispute currently arises out of Montrose’s Fifth Amended Complaint which was filed in 2015 seeking declarations concerning exhaustion and the manner in which Montrose may allocate its liabilities across the policies. Each of the excess policies at issue contained a requirement of exhaustion of underlying coverage. The various policies described the applicable underlying coverage in four main ways: (1) some policies contained a schedule of underlying insurance listing all of the underlying policies in the same policy period by insurer name, policy number, and dollar amount; (2) some policies referenced a specific dollar amount of underlying insurance in the same policy period and a schedule of underlying insurance on file with the insurer; (3) some policies referenced a specific dollar amount of underlying insurance in the same policy period and identified one or more of the underlying insurers; and (4) some policies referenced a specific dollar amount of underlying insurance that corresponds with the combined limits of the underlying policies in that policy period. The excess policies also provided, in various ways, that “other insurance” must be exhausted before the excess policy can be accessed.
Reprinted courtesy of
Gregory S. Capps, White and Williams LLP and
Michael E. DiFebbo, White and Williams LLP
Mr. Capps may be contacted at cappsg@whiteandwilliams.com
Mr. DiFebbo may be contacted at difebbom@whiteandwilliams.com
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Updated Covid-19 Standards In The Workplace
August 23, 2021 —
Mustafa Karim - Wilke FleuryWith California reopening, many Californians will be heading back to the workplace soon and are wondering if employers may require their employees to get vaccinated. According to the Fair Employment and Housing Act (“FEHA”), an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer (a) does not discriminate against nor harass employees on the basis of a protected characteristic, (b) provides reasonable accommodations related to disability or sincerely-held religious beliefs, and (c) does not retaliate against anyone for engaging in protected activity.[1]
On June 15, 2021, California lifted its mask mandate across the state. The California Department of Public Health (“CDPH”) updated its guidance for the use of face coverings stating that masks are no longer required for fully vaccinated individuals.[2] However, masks are still required on public transit, indoors in k-12 schools, childcare, other youth settings, healthcare settings, long-term care facilities, correctional and detention facilities, and homeless shelters.[3]
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Wilke Fleury LLP
Amazon Can be Liable in Louisiana
August 05, 2024 —
Michael J. Ciamaichelo - The Subrogation StrategistIn June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.
Amazon Can be a “Seller” Under the Louisiana Products Liability Act
Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.
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Michael J. Ciamaichelo, White and WilliamsMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
