A Look Back at the Ollies
May 03, 2018 —
Beverley BevenFlorez-CDJ STAFFThe Jerrold S. Oliver Award of Excellence, also known as the “Ollie” award, is presented to “an individual who is outstanding or has contributed to the betterment of the construction defect community.” West Coast Casualty asks members of the construction defect community to nominate those they feel are deserving of the award, and then members vote for one of four nominees. The award is presented at the West Coast Casualty Seminar. Those recognized receive a plaque and a donation in the winner’s name to Habitat for Humanity as well as a local California and Nevada charity.
Jerrold S. Oliver was a “’founding father’ in the alternate resolution process in construction defect claims and litigation. His loyalty and commitment to this community were beyond mere words as he was a true believer in the process of resolution.”
Past Award Winners:
1996 - Awarded to Ross R. Hart, Esq. (Mediator - American Arbitration Assoc.)
1997 - Awarded to Merv Thompson, Esq. (Mediator in private practice)
1999 - Awarded to Tom Craigo, (Adjuster - C.N.A. Insurance Company)
2000 - Awarded to Kristi Cole, (Adjuster - Safeco Insurance Company)
2001 - Awarded to Karen Rice, (Claims Manager - ACE / USA)
2002 - Awarded to Stephen Henning, Esq. (Wood, Smith, Henning and Berman, LLP)
2003 - Awarded to Ross Feinberg, Esq. (Feldscott, Lee, Feinberg, Grant and Mayfield LLP)
2004 - Awarded to Janet Shipes (Adjuster – C.N.A. Insurance Company)
2005 - Awarded to Edward Martinet (Expert – MC Consultants)
2006 - Awarded to Hon. Victoria V. Chaney (Judge – Los Angeles Superior Court)
2007 - Awarded to Bruce Edwards, Esq. (Mediator) JAMS
2008 - Awarded to Gerald Kurland, Esq. (Mediator) JAMS
2009 - Awarded to Keith Koeller, Esq. (Koeller, Nebecker, Carlson and Haluck, LLP)
2010 - Awarded to Terry Wolcott – (Construction Defect Manager – Travelers Ins. Co.)
2011 - Awarded to George Calkins, Esq. (Mediator) JAMS
2012 - Awarded to Joyia Greenfield, Esq. (Lorber, Greenfield and Polito, LLP)
2013 - Awarded to Margee Luper (Claim Manager – XL Insurance Group)
2014 - Awarded to Matt Liedle, Esq. (Liedle, Lounsbery, Larson & Lidl, LLP)
2015 - Awarded to Robert A. Bellagamba, Esq. (Special Master/Mediator, Castle & Dekker)
2016 - Awarded to Lisa Unger, (Senior Claims Examiner, Global Management Liability Markel)
2017 - Awarded to Caryn Siebert, (Vice President, Claims, Knight Insurance Group)
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ARUP, Rethinking Green Infrastructure
April 08, 2014 —
Beverley BevenFlorez-CDJ STAFFARUP claims to have rethought green infrastructure, according to their website. Their Cities Alive project “shows how the creation of a linked ‘city ecosystem’ that encompasses parks and open spaces; urban trees, streets, squares; woodland and waterways can help create healthier, safer and more prosperous cities.”
“[G]reen is the new gold,” Garrett Marai said on his California Construction Law blog post that discussed the Cities Alive project. “As well as LEED bronze, silver and platinum.”
ARUP is “an independent firm of designers, planners, engineers, consultants and technical specialists.”
Read the full story, ARUP Cities Alive...
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Florida Court of Appeals Rejects Insurer’s Attempt to Intervene in Underlying Lawsuit to Submit Special Interrogatories
October 09, 2018 —
Jeremy Macklin - TLSS Insurance Law BlogOn August 10, 2018, the Florida Court of Appeals for the Second District upheld a trial court’s dismissal of an insurance company’s intervention in a tort lawsuit brought against its insured for the purposes of submitting special interrogatories and verdict forms.
In Houston Specialty Ins. Co. v. Vaughn, 2018 Fla. App. LEXIS 11197, 2018 WL 3795785 (Fla. 2d DCA Aug. 10, 2018), the insured, All Florida Weatherproofing and Construction, Inc. (“All Florida”) provided pressure washing, roof coating, and other roof-related services. Houston Specialty issued a general liability policy to All Florida. In 2012, a worker fell off a roof while applying protective coating on behalf of All Florida. The worker and his family sued All Florida in connection with the worker’s injuries.
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Jeremy Macklin, Traub Lieberman Straus & Shrewsberry LLPMr. Macklin may be contacted at
jmacklin@tlsslaw.com
A Recap of the Supreme Court’s 2019 Summer Slate
September 16, 2019 —
Anthony B. Cavender - Gravel2GavelAs usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:
An Offshore Dispute, Resolve – Parker Drilling Management v. Newton
On June 10, 2019, the Court held, in a unanimous ruling, that, under federal law, California wage and hour laws do not apply to offshore operations conducted on the Outer Continental Shelf (OCS). Newton, the plaintiff, worked on drilling platforms off the coast of California, and alleged that he was not paid for his “standby time” which is contrary to California law if not federal law. He filed a class action in state court, which was removed to federal court, where it was dismissed on the basis of a 1969 decision of the U.S. Court of Appeals for the Fifth Circuit, which held that state law applies on the OCS only to the extent that it is necessary to use state law to fill a significant gap or void in federal law, and this is not the case here. On appeal to the Ninth Circuit, that court disagreed with the Fifth Circuit, and ruled that state law is applicable on the OCS whenever it applies to the matter at hand. The Supreme Court, in an opinion written by Justice Thomas, conceded that “this is a close question of statutory interpretation,” but in the end the Court agreed with the argument that if there was not a gap to fill, that ended the dispute over which law applies on the Outer continental Shelf. This ruling, recognizing the preeminent role that federal law plays on the OCS, may affect the resolution of other offshore disputes affecting other federal statutes.
Preemption Prevention – Virginia Uranium, Inc. v. Warren. et al.
On June 17, 2019 the Court decided important cases involving federal preemption and First Amendment issues. In a 6-to-3 decision, the Court held that the Atomic Energy Act does not preempt a Virginia law that “flatly prohibits uranium mining in Virginia”—or more precisely—mining on non-federal land in Virginia. Virginia Uranium planned to mine raw uranium from a site near Coles, Virginia, but acknowledging that Virginia law forbade such an operation, challenged the state law on federal preemption grounds, arguing that the Atomic Energy Act, as implemented by the Nuclear Regulatory Commission, preempts the ability of the state to regulate this activity. However, the majority, in an opinion written by Justice Gorsuch, notes that the “best reading of the AEA does not require us to hold the state law before us preempted,” and that the1983 precedent that Virginia Uranium cites, Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, can easily be distinguished. Justice Gorsuch rejected arguments that the intent of the Virginia legislators in passing the state law should be consulted, that the Court’s ruling should normally be governed by the exact text of the statute at hand. However, both the concurring and dissenting opinions suggest that the what the legislators intended to do is important in a preemption context.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Trump Administration Waives Border Wall Procurement Rules
March 23, 2020 —
Mary B. Powers & Debra K. Rubin - Engineering News-RecordActing Homeland Security Secretary Chad Wolf on Feb. 20 waived federal contracting rules to expedite construction of the U.S-Mexico border wall in California, Arizona, New Mexico and Texas, citing legal authority under several U.S. laws, some dating back to the 1990s, to deal with what he claimed is "an acute and immediate need to construct physical barriers and roads ... to prevent unlawful entries."
Reprinted courtesy of
Mary B. Powers, Engineering News-Record and
Debra K. Rubin, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage
January 05, 2017 —
Masaki J. Yamada – Ahlers & Cressman PLLCWashington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured.
As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future.
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Masaki J. Yamada, Ahlers & Cressman PLLCMr. Yamada may be contacted at
myamada@ac-lawyers.com
Coverage for Construction Defects Barred by Business Risk Exclusions
September 01, 2011 —
Tred R. Eyerly - Insurance Law HawaiiAlthough the court determined there was an occurrence, coverage was excluded by the business risk exclusions. See Cont’l W. Ins. Co. v. Shay Constr. Co., 2011 U.S. Dist. LEXIS 82839 (D. Colo. July 28, 2011).
White was the general contractor on the project. White had three subcontracts with Shay to provide framing, siding, and related work on the project. Shay was insured under a CGL policy issued by Continental Western.
Two of Shay’s subcontractors furnished materials, labor and equipment to Shay. These subcontractors filed suit in state court alleging they had not been compensated for the work and materials. White and Shay were named as defendants. White cross claimed against Shay, alleging Shay had breached its obligations under the subcontracts. Several allegations sounded in contract. Other allegations, however, contended Shay had performed defective work and had damaged the work of other trades in correcting deficiencies in its own performance.
Shay sought coverage under Continental Western’s policy. Continental Western filed suit for a declaratory judgment and moved for summary judgment.
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Court Holds That Public Entity Can Unilaterally Replace Subcontractor Under California’s Subletting and Subcontracting Fair Practices Act
July 22, 2019 —
Garret Murai - California Construction Law BlogThe Subletting and Subcontracting Fair Practices Act (Public Contract Code section 4100 et seq.), also known as the Listing Law, is intended to prevent direct contractors on public works projects from “bid shopping” and “bid peddling.”
Bid Shopping: Bid shopping is when a direct contractor discloses a subcontractor’s bid to other subcontractors in an attempt to obtain a lower bid than the one in which it based its bid to the owner.
Bid Peddling: Bid peddling is the other side of the equation. It is when a subcontractor whose bid was not selected, lowers its bid in an attempt to induce the direct contractor to substitute it for another subcontractor after the prime contractor’s bid has been awarded.
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
