Bailout for an Improperly Drafted Indemnification Provision
February 11, 2019 —
David Adelstein - Florida Construction Legal UpdatesA recent opinion came out that held that even though an indemnification provision in a subcontract was unenforceable per Florida Statute s. 725.06, the unenforceable portion is merely severed out of the indemnification clause leaving the rest of the clause intact. In essence, an otherwise invalid indemnification clause is bailed out by this ruling (which does not even discuss whether this subcontract had a severability provision that states that if any portion of any provision in the subcontract is invalid, such invalid portion shall be severed and the remaining portion of the provision shall remain in full force and effect).
This opinion arose from a construction defect case, CB Contractxors, LLC v. Allens Steel Products, Inc.,43 Fla.L.Weekly D2773a (Fla. 5thDCA 2018), where the general contractor, sued by an association, flowed down damages to subcontractors based on the contractual indemnification provision in the subcontracts. Subcontractors moved to dismiss the contractual indemnification claim because it was not compliant with Florida Statute s. 725.06. The indemnification provision required the subcontractors to indemnify the general contractor even for the general contractors own partial negligence, but failed to specify a monetary limitation on the extent of the indemnification as required by Florida Statute s. 725.06. (The indemnification clause in the subcontract was the standard intermediate form of indemnification that required the subcontractor to indemnify the general contractor for claims regardless of whether the claims were caused in part by the general contractor.)
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Newmeyer Dillion Attorneys Named to 2022 Super Lawyers and Rising Stars Lists
July 11, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – July 6, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that partner James Ficenec has been selected to the 2022 Norther California Super Lawyers list. Additionally, partner Tara Dudum and associates Brandon Clouse and Jacqueline McCalla have been selected to the 2022 Northern California Rising Stars list by Super Lawyers. Each year, no more than 5 percent and 2.5 percent, respectively, of the lawyers in the state are selected to receive this honor. The attorneys will be recognized in the July 2022 issues of Northern California Super Lawyers Magazine, San Francisco Magazine and Sactown Magazine.
James Ficenec is a partner in the Walnut Creek office. With incredible business acumen, Jim has counseled and defended clients across a variety of industries by advocating for their rights and legal protections as both a transactional attorney and business litigator.
Tara Dudum is a partner in the Walnut Creek Office. Tara's practice focuses primarily on business and employment law and her clients span across industries, including retail, e-commerce, real estate, manufacturing, hospitality, and beyond. She often acts as outside counsel for clients, providing day-to-day legal advice to owners, executives, supervisors, and human resource professionals.
Brandon Clouse is an associate in the Walnut Creek Office. As a part of the firm's construction and real estate litigation group, Brandon litigates disputes on behalf of clients concerning construction and real estate matters.
Jacqueline McCalla is an associate in the Walnut Creek Office. Jacqueline takes pride in assisting local businesses and entrepreneurs as well as Fortune 500 companies with all aspects of litigation, from inception through trial. Jacqueline's practice ranges across business, construction defect, employment and insurance disputes.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process evaluates candidates on 12 indicators of peer recognition and professional achievement, resulting in a comprehensive, credible and diverse listing of exceptional attorneys. The Rising Stars list is developed using the same selection process except candidates must be either 40 years old or younger, or have been in practice for 10 years or less.
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.
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As Recovery Continues, Home Improvement Stores Make Sales
August 27, 2013 —
CDJ STAFFNeed another sign of the housing recovery? Lowe’s stock price is up. Bloomberg News reports that the home-improvement retailer rose by 88 cents a share in the last quarter. Analysts had predicted gains of 79 cents a share, and the same quarter last year saw profits of 64 cents a share. The increase in profits come from more purchases and higher spending per purchase. While Lowe’s negotiated some better prices with vendors and dropped some items that weren’t selling, none of the profits came from staff reduction; the retailer actually increased staffing.
Home Depot, the largest such chain (Lowe’s is number 2), also saw profits that exceeded analysts’ projections. They, too, have decided to focus on assisting customers. Their increase in profits was attributed to greater spending by contractors and homeowners.
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New Jersey Appeals Court Ruled Suits Stand Despite HOA Bypassing Bylaw
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFIn the case Port Liberte II Condominium Association v. New Liberty Residential Urban Renewal Company, a New Jersey appeals court ruled that a homeowners association (HOA) could bypass a bylaw that requires unit owners to approve litigation before it is filed, the New Jersey Law Journal reported. Two construction-defect suits were reinstated by the appeals court, and both had been “dismissed based on alleged violation of the bylaws.” The first suit “claimed the defendants' negligence contributed to major construction defects at the 225-unit condominium development, which was completed in 2004” while “the second suit claimed that one section of the development is sinking into the ground because of a failure to properly investigate soil conditions at the former industrial site where the buildings sit.”
According to the New Jersey Law Journal, the HOA did not obtain approval from the unit owners prior to commencing litigation because “the statute of limitations was about to expire.” However, the HOA met with the residents in October of 2009 and a vote was cast “72 to 3 to pursue litigation.” In May of 2011 the second suit was dismissed because defendants stated “approval of residents was not obtained.” Another meeting of residents occurred, and another vote cast ratified “both suits by a vote of 65 to 1.” However, Judge Baber, who had previously dismissed both suits, refused to reinstate them.
“The Appellate Division said in its ruling that the Condominium Act, N.J.S.A. 46:8B-1, gives the association the exclusive authority to file suit against builders and other third parties for damage to common areas in the community,” the New Jersey Law Journal reported. “Given its legal responsibility for upkeep of common areas, and its statutory authorization to sue for damages to such areas, the association had standing to file suit, the appeals court said.”
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Insurer's Summary Judgment Motion on Business Risk Exclusions Fails
November 15, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer unsuccessfully moved for summary judgment on the CGL policy's business risk exclusions. Scottsdale Ins. Co. v. TL Spreader, LLC, (W.D. La. Oct. 20, 2017).
Helena Chemical Company contracted with its customer Wild Farms to sell and apply certain herbicides and pesticides to Wild Farms' 123 acre rice filed. Helena subcontracted the TL Spreader, LLC (TLS) to apply the chemicals to Wild Farm's rice field. The TLS employee failed to properly neutralize a chemical being used in the spray.
TLS finished its work on May 6, 2014, completing all its work for Helena's contract with Wild Farms. Three days after completion of the spraying, the rice crop first began to exhibit physical damage in the form of abnormal stunting, lesions, yellowing and death.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
State of Texas’ Claims Time Barred by 1982 Nuclear Waste Policy Act
June 13, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al. The Court of Appeals held that the petition for mandamus filed by the State of Texas essentially seeking to compel the Nuclear Regulatory Commission (NRC) to establish a schedule for the operation of the Yucca Mountain, NV nuclear waste depository was untimely filed. The depository is very controversial in Nevada, and as a consequence, none of the many deadlines established by Congress have been met.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Illinois Insureds are Contesting One Carrier's Universal Denial to Covid-19 Losses
May 11, 2020 —
Anna M. Perry - Saxe Doernberger & VitaIn response to the large number of COVID-19-related losses that businesses are experiencing, insurers have begun issuing statements informing their insureds of whether their policies will respond to the losses, and if so, what coverage will be afforded. Insurers cannot take a “one-size-fits-all” approach to the COVID-19 losses because, besides factual differences, the losses are occurring within all fifty states which means 50 different state law interpretations will apply.
Recently, on March 27, 2020, a number of restaurants and movie theaters located in and around Chicago (the “Insureds”) filed a declaratory judgement action, titled Big Onion Tavern Group, LLC et al. v. Society Insurance, Inc., against their property insurance carrier, Society Insurance, Inc. (“Society”), seeking coverage for business interruption resulting from the shutdown order issued by the governor of Illinois. The suit alleges that Society improperly denied their business interruption claims by using a boiler plate denial. The denial issued by Society is allegedly used for all COVID-19 losses regardless of the applicable jurisdiction’s interpretation of the policy language and the specific coverage purchased by the insured. Further, in its denial, Society takes the position that any loss related to a government-issued closure order is uncovered, even though the Insureds specifically purchased business interruption coverage and their policies did not contain an exclusion for losses caused by viruses.
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Anna M. Perry, Saxe Doernberger & VitaMs. Perry may be contacted at
amp@sdvlaw.com
10 Year Anniversary – Congratulations Greg Podolak
November 23, 2016 —
Edwin L. Doernberger – Saxe Doernberger & Vita, P.C.2016 marks 10 years of successful practice for SDV Partner, Gregory Podolak. Greg has spent his entire professional career with Saxe, Doernberger & Vita, rising up the ranks from Summer Associate to Managing Partner of SDV’s first satellite office located in Naples, FL. Greg also manages SDV’s Cyber Risk group and is a nationally recognized author and speaker on the topic.
Over the past decade, Greg has been honored with numerous awards, including the Connecticut Law Tribune’s 2015 New Leaders in the Law, and for the past five years in a row has been chosen as a Super Lawyers® Rising Star.
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Edwin L. Doernberger, Saxe Doernberger & Vita, P.C.Mr. Doernberger may be contacted at
eld@sdvlaw.com
