How Palm Beach Balances Mansion Politics Against Climate Change
July 05, 2021 —
Amanda L. Gordon - BloombergIt feels like a precipice moment for Palm Beach, a Florida town in the throes of a waterfront mansion-building mania just as the impacts of climate change start pushing in.
At the town council’s regular meeting this past week, officials talked about the need to raise the grade of a beloved bike trail—and, at the same time, somehow add height to the privately-owned seawalls running alongside it. Raising both together would help preserve views and accessibility.
But if individual sections of the public bikeway and the mansion-fronting seawalls are raised piecemeal and go out of sync, it would weaken the defense against flooding and make for uneven pedaling. As the town’s director of public works Paul Brazil put it, “We don't want our bike trail to become a mountain bike trail.”
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Amanda L. Gordon, Bloomberg
ABC Safety Report: Construction Companies Can Be Nearly 6 Times Safer Than the Industry Average Through Best Practices
May 06, 2024 —
Associated Builders and ContractorsWASHINGTON, April 30, 2024 (GLOBE NEWSWIRE) -- Associated Builders and Contractors today announced the findings from its
2024 Safety Performance Report, an annual guide to construction jobsite health and safety best practices. The report is unveiled to coincide with
Construction Safety Week, May 6-10.
The annual safety report also provides a comprehensive understanding of the impact of deploying
ABC's STEP Safety Management System, which enables top-performing ABC members to achieve incident rates 576% safer than the U.S. Bureau of Labor Statistics construction industry average. Established in 1989, STEP provides contractors and suppliers with a robust, no-cost framework for measuring safety data and benchmarking with peers in the industry.
ABC's research on more than 900 million work hours completed by participants in the construction, heavy construction, civil engineering and specialty trades in 2023 identified the following foundations of industry-leading safety best practices:
- Top management engagement: Employer involvement at the highest level of company management produces a 54% reduction in total recordable incident rates, or TRIR, and a 52% reduction in days away, restricted or transferred rates, or DART rates.
- Substance abuse prevention programs: Robust substance abuse prevention programs/policies with provisions for drug and alcohol testing where permitted lead to a 47% reduction in TRIR and a 48% reduction in DART rates.
- New hire safety orientation: Companies that conduct an in-depth indoctrination of new employees into the safety culture, systems and processes based on a documented orientation process experience incident rates that are 45% lower than companies that limit their orientations to basic health and safety compliance topics.
- Frequency of toolbox talks: Companies that conduct daily, 15-to-30-minute toolbox talks reduce TRIR and DART rates by 81% compared to companies that hold them monthly.
The 2024 ABC Safety Performance Report is based on submissions of unique company data gathered from members that deployed during the 2023 STEP term, Jan. 15-Dec. 15. ABC collects each company's trailing indicator data as reported on its annual Occupational Safety and Health Administration Form 300A ("Summary of Work-Related Injuries and Illnesses") and its self-assessment of leading indicator practices from its STEP application. Each data point collected is sorted using statistically valid methodology developed by the BLS for its annual Occupational Injuries and Illnesses Survey and then combined to produce analyses of STEP member performance against BLS industry average incident rates. The report demonstrates that applying industry-leading processes dramatically improves health and safety performance among participants regardless of company size or type of work.
Any company can participate in STEP. Visit abc.org/step to begin or continue your safety journey.
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Quick Note: Mitigation of Damages in Contract Cases
October 02, 2018 —
David Adelstein - Florida Construction Legal UpdatesIn an earlier article, I discussed an owner’s measure of damages when a contractor breaches the construction contract. This article discussed a case where the contractor elected to walk off a residential renovation job due to a payment dispute when he demanded more money and the owners did not bite. This case also discussed the commonly asserted defense known as mitigation of damages, i.e., the other party failed to properly mitigate their own damages.
In the breach of contract setting, mitigation of damages refers to those damages the other side could have reasonably avoided had he undertaken certain (reasonable) measures. This is known as the doctrine of avoidable consequences.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
How One Squirrel Taught us a Surprising Amount about Insurance Investigation Lessons Learned from the Iowa Supreme Court
April 03, 2019 —
Graham C. Mills - Newmeyer & DillionA recent decision issued by the Iowa Supreme Court, City of West Liberty, Iowa v. Employers Mutual Casualty Company, highlights the importance for a policyholder to investigate a loss fully so that a wide range of evidence can be gathered and presented to show why there is coverage. The facts of City of West Liberty are a little unusual, but its lesson is not limited to Iowa insurance law; the issues litigated in this case show the value of investigating what caused a loss regardless of whether the loss occurred in California, Iowa, or elsewhere.
Background on the Case
City of West Liberty involved an insurance coverage dispute between a municipality owned electrical power plant and its insurance company. The dispute arose from a single adventurous squirrel who climbed onto an outdoor electrical transformer, touching two different parts of the power plant: a portion of the steel frame and a bare cable clamp. In doing so, the squirrel created a “conductive path,” in the words of the Iowa Supreme Court, between the high voltage clamp and the grounded frame. The path, once created, caused significant damage to the transformer and other electrical equipment at the city’s power plant.
The city submitted a claim for the resulting damage, but the insurance company denied it. The insurer denied based on an exclusion in the insurance policy for property damage “caused by arcing or by electrical currents other than lightning.” According to the insurance company, the squirrel had no role in causing the damage; all of the damage resulted from arcing, which was excluded from coverage. The ensuing lawsuit focused upon whether the squirrel had a role in causing the damage. If yes, then there would be coverage according to Iowa insurance law; when a loss results from two causes, one of which is covered and the other is not, then there is coverage if the loss occurs from the covered cause. Due to this legal standard, the city contended that, apart from the arcing causing any damage, the squirrel caused the damage too. Because the insurance policy provided protection against mischievous actions performed by squirrels, the city contended that it was entitled to coverage, even if the excluded arcing contributed to the same damage too. Unfortunately, for the city, the Iowa Supreme Court rejected that argument, finding instead that the property damage resulted only from the arcing, which was excluded from coverage. In reaching its conclusion, the court absolved the squirrel of any wrongdoing, finding that it did not cause any of the property damage.
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Graham C. Mills, Newmeyer & DillionMr. Mills may be contacted at
graham.mills@ndlf.com
Corps Proposes $4.6B Plan to Steel Miami for Storm Surge
June 22, 2020 —
Pam Radtke Russell - Engineering News-RecordA $4.6-billion U.S. Army Corps of Engineers proposal to protect Miami from future storm surge, largely by building massive sea walls and elevating infrastructure systems, is the latest of such plans the agency has developed for East Coast communities.
Pam Radtke Russell, Engineering News-Record
Ms. Russell may be contacted at Russellp@bnpmedia.com
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Contractual Assumption of Liability Does Not Bar Coverage
August 27, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Michigan Court of Appeals rejected the insurer's argument that coverage was barred for the insured's contractual assumption of liability of another. Travelers Prop. Cas. Co. of Am v. Peaker Serv., Inc., 2014 WL 3605680 (Mich. Ct. App. July 22, 2014).
The contractor was hired to install an "electronic over-speed system" at the University of Michigan. The hope was that the new system would prevent the steam turbines at the central power plant from turning too quickly. The parties' contract provided,
“Section 15.18. Supplier Damage to University Property. Without regard to any other section of the Agreement, Supplier shall be responsible for the costs to return to ‘as was’ condition from any damage caused to the building, grounds, or other equipment and furnishings caused in whole or part by Supplier Personnel while performing activities arising under this Agreement.”
The contractor improperly calibrated the system, causing one of the university's turbines to operate at twice the safe operational speed, causing significant damage to the generator equipment. The university sued the contractor for more than $3 million in damages. Travelers defended, but filed a declaratory judgment action, contending that coverage did not exist because the "contractual liability" exclusion applied. Section 15.18 of the contract purportedly constituted an "assumption" of the insured's own liability, and was therefore not covered under the CGL policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
White and Williams LLP Secures Affirmation of Denial to Change Trial Settings Based on Plaintiffs’ Failure to Meet the Texas Causation Standard for Asbestos Cases
July 06, 2020 —
Christian Singewald & Rochelle Gumapac - White and Williams LLPThe Delaware Supreme Court, in a rare split opinion, affirmed the trial court’s denial of Plaintiffs’ Request to Change Trial Settings in favor of all defendants, including a major automotive manufacturer represented by White and Williams LLP, in a mesothelioma case with a young decedent who had an alleged economic loss claim exceeding $9,000,000, in Shaw v. American Friction, Inc. et al., No. 86, 2019. This decision operates to dismiss all of Plaintiffs’ claims based on their failure to meet Delaware’s strict expert deadlines and establish a prima facie case under Texas law.
Plaintiffs’ Complaint invoked the application of Texas substantive law and alleged that multiple manufacturers were negligent and strictly liable for failing to warn the decedent of the alleged dangers posed by the use of asbestos-containing products. Plaintiffs’ alleged asbestos exposures from defendants’ products caused Mr. Shaw’s disease and subsequent death.
In 2007, Texas instituted its now well-known causation requirement, which requires the “dose” of asbestos exposure from each defendant’s products to be quantified by an expert. Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007). Prior to decedent’s death, Plaintiffs’ counsel deposed decedent and his father for product identification purposes. During the depositions, Plaintiffs’ counsel failed to obtain the necessary factual information from his clients for an expert to be able to opine as to alleged exposure doses from any defendant’s product. Despite lacking the requisite information for a prima facie case under Texas law, Plaintiffs sought and were given placement in an expedited trial setting, which had strict, defined deadlines.
Reprinted courtesy of
Christian Singewald, White and Williams LLP and
Rochelle Gumapac, White and Williams LLP
Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com
Ms. Gumapac may be contacted at gumapacr@whiteandwilliams.com
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Insurer Must Defend and Indemnify Construction Defect Claims Under Iowa Law
February 23, 2017 —
Tred R. Eyerly – Insurance Law HawaiiApplying Iowa law, the federal district court found that the insurer had to defend and indemnify construction defect claims for damage to property caused by the insured's subcontractors. Van Der Weide v. Cincinnati Ins., 2017 U.S. Dist. LEXIS 4469 (N.D. Iowa Jan. 12, 2017).
Van Der Weide contracted with Bouma & Company, Inc. to construct a house in 1996. Before construction began, Bouma purchased a CGL policy and a separate umbrella policy from Cincinnati, which were in effect from January 30, 1996 to January 30, 1999.
Bouma used various subcontractors to build the home, including Elkato Masonry, which did the brick veneer and masonry work. The house was completed in February 1998 and Van Der Weide moved in during August 1998.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
