Chambers USA 2023 Recognizes Six Partners and Three Practices at Lewis Brisbois
June 19, 2023 —
Lewis Brisbois NewsroomNew York, N.Y. (June 6, 2023) – Six Lewis Brisbois partners and three Lewis Brisbois practices were recently ranked by Chambers in its 2023 USA rankings list.
Kansas City & Wichita Managing Partner Alan L. Rupe and Phoenix Managing Partner Carl F. Mariano were both ranked Band 1 for “Labor & Employment – Kansas” and “Insurance – Arizona,” respectively. Phoenix Partner Gina M. Bartoszek was ranked Band 2 for “Insurance – Arizona.” Washington, D.C. Managing Partner Jane C. Luxton and Minneapolis Partner Tina A. Syring were both ranked Band 4 for “Environment – District of Columbia” and “Labor & Employment – Minnesota,” respectively. Additionally, Washington, D.C. & Fort Lauderdale Partner J. Mario Fontes, Jr. was ranked Band 5 for “Corporate/M&A & Private Equity – Florida: South.”
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Lewis Brisbois
Subcontractors Found Liable to Reimburse Insurer Defense Costs in Equitable Subrogation Action
August 03, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Pulte Home Corp. v. CBR Electric, Inc. (No. E068353, filed 6/10/20), a California appeals court reversed the denial of an equitable subrogation claim for reimbursement of defense costs from contractually obligated subcontractors to a defending insurer, finding that all of the elements for equitable subrogation were met, and the equities tipped in favor of the insurer.
After defending the general contractor, Pulte, in two construction defect actions as an additional insured on a subcontractor’s policy, St. Paul sought reimbursement of defense costs solely on an equitable subrogation theory against six subcontractors that had worked on the underlying construction projects, and whose subcontracts required them to defend Pulte in suits related to their work. After a bench trial, the trial court denied St. Paul’s claim, concluding that St. Paul had not demonstrated that it was fair to shift all of the defense costs to the subcontractors because their failure to defend Pulte had not caused the homeowners to bring the construction defect actions.
The appeals court reversed, holding that the trial court misconstrued the law governing equitable subrogation. Because the relevant facts were not in dispute, the appeals court reviewed the case de novo and found that the trial court committed error in its denial of reimbursement for the defense fees. The appeals court found two errors: First, the trial court incorrectly concluded that equitable subrogation requires shifting of the entire loss. Second, the trial court applied a faulty causation analysis – that because the non-defending subcontractors had not caused the homeowners to sue Pulte, thereby necessitating a defense, St. Paul could not meet the elements of equitable subrogation.
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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Who Says You Can’t Choose between Liquidated Damages or Actual Damages?
October 11, 2017 —
Kevin Walton - Snell & Wilmer Real Estate Litigation BlogIn Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages that would result from a breach. But what happens when a contract gives a party a right to choose between liquidated damages or actual damages? This seems troublesome because it allows a party to set the floor for their damages without limitation if actual damages exceed the contractual amount. As a matter of first impression, the Colorado Supreme Court addressed this issue in Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552 (Colo. 2017).
In Ravenstar, plaintiffs contracted to buy condominiums from a developer. As part of their contracts, plaintiffs deposited earnest money and construction deposits equal to 15% of each unit’s purchase price. Plaintiffs breached their contract by failing to obtain financing and failing to close by the closing date. Each contract’s damages provision provided that if a purchaser defaulted, the developer had the option to retain all or some of the deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits to that award. After plaintiffs defaulted, the developer chose to keep plaintiffs’ deposits as liquidated damages. Plaintiffs sued for return of their deposits.
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Kevin Walton, Snell & WilmerMr. Walton may be contacted at
kwalton@swlaw.com
Property Insurance Exclusion: Leakage of Water Over 14 Days or More
July 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesThe recent opinion of Whitley v. American Integrity Ins. Co. of Florida, 43 Fla.L.Weekly D1503a (Fla. 5th DCA 2018), as a follow-up to this article on the property insurance exclusion regarding the “constant or repeated seepage or leakage of water…over a period of 14 or more days,” is a beneficial opinion to insureds.
In this case, the insured had a vacation home. A plumbing leak occurred that caused water damage to the home. The plumbing leak occurred during a period of time that lasted approximately 30 days. For this reason, the property insurer denied the claim per the exclusion that the policy does not cover loss caused by repeated leakage of water over a period of 14 or more days from a plumbing system. Summary judgment was granted by the trial court in favor of the insurer based on this exclusion.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Rising Construction Disputes Require Improved Legal Finance
November 15, 2022 —
Apoorva Patel - Construction ExecutiveConstruction disputes are famously high stakes, and the industry is currently experiencing an uptick in the value and number of disputes resulting from contractual obligations and third-party or force majeure incidents. While this is not entirely surprising given COVID-19’s disruption of global markets and supply chains, the numbers are noteworthy.
For example, in 2020 alone, the International Chamber of Commerce (ICC)—the leading institution for construction disputes, partly because its clauses feature in many FIDIC standard form contracts—registered 194 construction arbitrations, and construction disputes now comprise over 20% of the ICC caseload.
In addition to the damage to business outcomes that the underlying disputes may present, parties can quickly spend many millions on legal fees and expenses, as well as technical experts and consultants, if and when those disputes progress through the courts or arbitration. According to Norton Rose’s 2020 Global Construction Disputes Report, the average construction dispute value rose sharply from $30.7 million in 2019 to $54.26 million in 2020.
Reprinted courtesy of
Apoorva Patel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Diggin’ Ain’t Easy: Remember to Give Notice Before You Excavate in California
February 15, 2018 —
Matthew Peng – Construction Law Blog If you are reading this blog, my guess is that you know what excavation is and why it is important to the construction process. However, what you may not know is the complicated California law that governs this process. The statute for an excavation contractor to be familiar with is California Government Code section 4216,
et seq. However, like most things worth pursuing, that is easier said than done. Section 4216 contains several layers of prerequisites and requirements. This article will explore the notice requirement.
Section 4216.1 requires “every operator of a subsurface installation” to share costs of a regional notification center. This is necessary because Section 4216.2(b) requires “an excavator planning to conduct an excavation shall notify the appropriate regional notification center of the excavator’s intent to excavate” before beginning that excavation. The statute lists two regional notification centers: the Underground Service Alert—Northern California and the Under Ground Service Alert—Southern California.
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Matthew Peng, Gordon & ReesMr. Peng may be contacted at
mpeng@grsm.com
US Secretary of Labor Withdraws Guidance Regarding Independent Contractors
June 21, 2017 —
Tanya Salgado - White and Williams LLPThe United States Secretary of Labor has withdrawn an informal guidance regarding independent contractors issued in 2015. We reported on the 2015 Administrator’s Interpretation here. The 2015 Interpretation provided a detailed explanation of the economic realities test, which is used to determine whether a worker is to be classified as an independent contractor or an employee under the Fair Labor Standards Act (FLSA).
While the 2015 Interpretation did not change existing case law on independent contractor status, it was seen as sending a signal from the Department of Labor (DOL) regarding the agency’s focus. The DOL concluded the 2015 Interpretation with the statement, “most workers are employees under the FLSA’s broad definitions…” Just as the DOL’s 2015 Interpretation did not change existing case law, the DOL’s withdrawal of the Interpretation does not change the law in any way. The economic realities test remains the legal standard for determining independent contractor status under the FLSA.
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Tanya Salgado, White and Williams LLPMs. Salgado may be contacted at
salgadot@whiteandwilliams.com
Where Did That Punch List Term Come From Anyway?
March 27, 2019 —
Duane Craig - Construction InformerI’ve often wondered just where the term “punch list” came from, and I’ve found a few sources that seem to make sense, while others not so much.
One person claims it came from the telephone installer process of “punching down” terminals on a block. That seems a bit of a stretch though. A blog writer said it had to do with the term ‘punch’ since it means to “punch something up” as in fix it.
Another blog writer thought it had something to do with a long forgotten practice. Apparently subcontractors used to each have their own hole punches that would punch a hole with a shape unique to them. They would use these punches to indicate they had corrected the deficiency that was their responsibility.
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Duane Craig, Construction Informer