The Evolution of Construction Defect Trends at West Coast Casualty Seminar
May 03, 2018 —
Don MacGregor - Bert L. Howe & Associates, Inc.Twenty-five years ago. 1993. On January 23rd, Bill Clinton was sworn in as the 42nd President of the United States. The average cost of a gallon of gasoline was $1.16, a movie ticket cost $4.00, and the average cost of a new home was $113,200.00.
1993 also marked the first of what would be a quarter century of annual seminars hosted by West Coast Casualty Service, and provided to the combined professionals within the construction defect community. As the seminar has grown both in attendance and prominence within this community under the watchful stewardship of David and Coral Stern, much has changed both with regard to the content of the seminar and the climate within which it was presented. A quick look at the topics addressed over the past 25 years of the Construction Defect Seminar provides one with a veritable history of construction defect litigation and insurance coverage trends across the United States and beyond.
While the first seminar was hosted in 1993, my first attendance didn’t occur until 1999, and the first time I was honored to be a panelist would have to wait until 2007. In the subsequent years, I’ve had the opportunity to sit on panels an additional three times, and each one I gained rare and valuable insights into the construction defect community, its willingness to challenge itself, and the amazing professionals we all have the distinct pleasure of working with every day (and whom we sometimes take too much for granted).
In the mid to late 90’s, topics at the seminar included such subjects as the Montrose Chemical Corp v. Superior Court decision (Montrose) regarding a carrier’s duty to defend and the subsequent Stonewall Insurance case that examined the duty to indemnify in the context of construction defect claims. The California Calderon Act of 1997, laying out the roadmap for HOA’s filing construction defect lawsuits was also a topic of discussion and debate within the West Coast “arena.”
The new millennium saw the landmark Aas v. William Lyon decision, which disallowed negligence claims for construction defects in the absence of actual resultant damage. This was followed by Presley Homes v. American States Insurance wherein the court ruled that a duty to defend applies where there is mere potential for coverage and the duty to defend applies to the entire action. Each of these bellwether decisions was addressed contemporaneously by panels at the West Coast seminar, contemporaneously bringing additional dialog to the CD community, from within the community.
2002 brought what has become the defining legislation in California regarding construction defect litigation and a builder’s right to repair. Senate Bill 800 (SB800), and its subsequent codification as Title 7, Part 2 of Division 2 of the California Civil Code, Sections 895 through 945.5 would become the defining framework for similar legislation across the United States. During the course of its drafting, movement through the legislature, and final adoption in January of 1993, many of the questions raised and debated in committees in Sacramento, had already been and were continuing to be addressed by panelists at the West Coast Seminar. How does SB800 work with Calderon? How does it affect the prior Aas decision? What now constitutes a defect, and what are timeframes established within the complex pre-litigation process? Open the pages of the 2002 – 2004 seminar invitations and you’ll see panels comprised of the finest members of the insurance law and coverage communities addressing those very questions (and more)!
As the first decade of the new century drew to a close, a brief review of the WCC invitations from that period suggests a trend towards programmatic analyses of key themes selected for the seminar. In 2008, my second opportunity as a guest speaker, topics included a review of the state of construction defect litigation in a post-SB 800 environment. Panelists offered retrospective insight into the state of right to repair statutes in multiple states, while others offered a glimpse at where the industry might be headed, as similar legislation was enacted across the country. As always, pertinent court decisions bearing on construction defect, both in California, and elsewhere were given unique perspective and additional clarity by multiple panels of gifted speakers. In 2009, claims and coverage were examined from multiple unique perspectives, including that of plaintiff, the policyholder, and the insurer. Wrap policies and the gaps in due to self-insured retention obligations were examined.
As we rapidly approach the end of the second decade of the 21st Century, West Coast Casualty’s Construction Defect Seminar continues to lead the construction defect community as the premier source for information and peer dialog on all matters relating to construction law, coverage, and emerging trends. In 2017, the Seminar tackled such broad subjects as the role of women in the construction industry, claims management, and risk management, challenges raised by wrap versus non-wrap litigation, and the emergent trend of apartment to condo conversions (and the attendant coverage challenges).
This month, beginning on May 16th at the Disneyland Resort, in Anaheim California, America’s largest Construction Defect event kicks off its 25th Anniversary celebration. As has been every year since 1993, the seminar invitation promises insurance, legal, and industry professionals an exciting and informative array of salient and timely panel topics, as well as a stellar faculty of gifted panelists. If this year’s seminar is anything like the past 25 years, this edition of West Coast Casualty’s Construction Defect Seminar will not only be informative and educational, but also a promise for another 25 years of peerless service to the construction defect community.
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Law Firm Fails to Survive Insurer's and Agent's Motions to Dismiss
May 08, 2023 —
Tred R. Eyerly - Insurance Law HawaiiInterpreting New Jersey law, the federal district court dismissed without prejudice the law firm's complaint against its insurer and agent. Law Office of Drew J. Bauman v. Hanover Ins. Co., 2023 U.S. Dist. LEXIS 31844 (D. N. J. Feb. 27, 2023).
The law firm had a professional liability policy issued by Hanover. The law firm was sued in the underlying case involving a real estate transaction. The law firm tendered the defense and indemnity of the underlying complaint, but coverage was denied. The law firm sued, contending Hanover breached the policy by refusing to abide by its obligations under the policy.
In the alternative, the law firm alleged that its agent, USI Insurance Services, LLC, was liable if the policy did not require Hanover to defend and indemnify in the underlying case. It was further alleged that USI was responsible for procuring coverage for the law firm and knew of its insurance needs. USI was negligent in securing a policy with inadequate coverage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Renee Mortimer Recognized as "Defense Lawyer of the Year" by DTCI
December 13, 2022 —
Renee Mortimer - Lewis BrisboisHighland, Ind. (November 21, 2022) - Northwest Indiana Managing Partner Renee J. Mortimer was recently named "Defense Lawyer of the Year" by the Defense Trial Counsel of Indiana (DTCI). She was officially recognized at a Board & Officers dinner the evening before the DTCI's annual conference, which took place in Michigan City, Indianapolis from November 17 to 18.
The DTCI gives out three awards every year as part of its annual conference, including "Defense Lawyer of the Year," "Diplomat," and "Outstanding Young Lawyer." This year, two recipients received the "Diplomat" recognition
"I am honored to receive this recognition from my peers and look forward to continuing my work with the DTCI," said Ms. Mortimer.
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Renee Mortimer, Lewis BrisboisMs. Mortimer may be contacted at
Renee.Mortimer@lewisbrisbois.com
Decades of WCC Seminar at the Disneyland Resort
May 03, 2018 —
Beverley BevenFlorez-CDJ STAFFOne of the many perks of attending the West Coast Casualty Construction Defect Seminar each year is its location at the Disneyland Hotel. What better excuse to take an afternoon or day or two to visit the happiest place on Earth? Prior to 2001, attendees only had the Disneyland Park to explore. But the beginning of 2001 brought the addition of the California Adventure Theme Park and Downtown Disney. Now when you want a break you can take a stroll through Downtown Disney and shop, eat, or watch some street performers. While California Adventure still has plenty for children to do, it also caters to the twenty-one-and-over-but-still-child-at heart with wine tasting and craft beers available at the park. Disneyland remains a fixture for nostalgia with the Sleeping Beauty Castle, but has updated itself with its addition of Star Wars and Marvel attractions.
West Coast Casualty has special Disneyland ticket rates for attendees. Please see their
invitation for more details.
If you’re interested in one of Disneyland Resort’s sit-down restaurants, a reservation is highly desirable. You may
make your reservation online or call Disney Dining at (714) 781-DINE. Staying at the Disneyland Resort? Disney provides their hotel guests with preferred access reservations (call Disney Dining for more information). If you’re looking for a fine dining experience, you’ll enjoy Carthay Circle Restaurant at California Adventure, Catal Restaurant at Downtown Disney, Napa Rose at the Grand Californian Hotel, or Steakhouse 55 at the Disneyland Hotel. If you’re a sports fan, check out ESPN Zone in Downtown Disney. For a one-of-a-kind Disney experience, have lunch or dinner at the Blue Bayou at Disneyland, where the dining room is located within the Pirates of the Caribbean ride.
You may also want to check Disneyland Resort’s
Entertainment schedule. For a live musical show (included in the cost of admission to California Adventure Park), check out Frozen – Live at the Hyperion. For an illuminating experience, you’ll want to stay for the Paint the Night Parade at the California Adventure Park, which features one million brilliant lights and many of your favorite Disney characters. If you’re a Pixar lover, you won’t want to miss Disneyland Park’s Together Forever – A Pixar Nighttime Spectacular. It’s a fireworks display like only Disney can create, including dazzling projections, pyrotechnics and music from the movies.
If you wish to skip the crowds and just relax, then
the Madara Spa at Disney’s Grand Californian Hotel may be your choice. The Madara Spa theme is “the mystery of the East meeting the science of the West with boundaries ceasing to exist.”
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Mass. Gas Leak Follows NTSB Final Report, Call for Reforms
November 24, 2019 —
Johanna Knapschaefer - Engineering News-RecordA major natural-gas leak forced Lawrence, Mass., residents to evacuate their homes early on Sept. 27. National Grid cut power to more than 1,300 customers to avoid another disaster like last year’s natural-gas explosions and fires in Lawrence and two other towns north of Boston. The leak came just days after federal officials called for changes to national pipeline regulations as they released a final report on the causes of the Sept. 13, 2018, disaster.
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Johanna Knapschaefer, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Traub Lieberman Partner Lisa Rolle Wins Summary Judgment on Behalf of Contract Utility Company in Personal Injury Action
April 25, 2023 —
Lisa M. Rolle - Traub LiebermanTraub Lieberman Partner Lisa Rolle obtained summary judgment on behalf of a contract utility company (“Utility Company”) in a matter brought before the New York Supreme Court, Queens County. In the complaint, the Plaintiff alleged that she sustained injuries as a result of a trip and fall accident where the Plaintiff’s foot allegedly went into a hole in the grass strip abutting the sidewalk adjacent to a premises located in Queens, NY. The Plaintiff claimed that the defect in the sidewalk was caused by the removal of a utility pole at the curb strip that was not correctly backfilled.
The Defendant Utility Company is in the business of inspecting, treating, and repairing utility and telecommunication structures, including wooden utility poles. TLSS was successfully able to establish that, three years prior to the accident, the Utility Company was retained to conduct a visual inspection of the subject pole. However, the Utility Company does not and has not owned, installed, removed or replaced in-service utility poles in New York or at the location of the alleged accident. Further, TLSS established that the Utility Company did not service or remove the subject pole at the accident site or backfill the curb strip.
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Lisa M. Rolle, Traub LiebermanMs. Rolle may be contacted at
lrolle@tlsslaw.com
Penalty for Failure to Release Expired Liens
April 02, 2024 —
William L. Porter - Porter Law GroupI was recently contacted by a commercial building owner in the process of trying to sell his building. Two years prior to this, a subcontractor had recorded a mechanics’ lien with the local County Recorder’s office in relation to the owner’s property. The subcontractor recorded the mechanics lien after the subcontractor was not paid by a prime contractor for work the subcontractor had performed on the property. Unfortunately, the subcontractor then failed to file a lawsuit to foreclose on the lien within the requisite ninety (90) day time period for filing a lawsuit to foreclose on the mechanics’ lien. Since the subcontractor missed this 90 day deadline to file the mechanics lien foreclosure lawsuit, the mechanics lien expired and became unenforceable.
Subject to certain exceptions, under California Civil Code Section 8460, a lawsuit to foreclose on a mechanics lien must be filed within ninety (90) days after the mechanics lien is recorded or the mechanics lien expires. Although the mechanics lien had expired, the title company and intended purchaser of the building and property were perhaps understandably insistent that the mechanics lien constituted a cloud on title to the property and must be removed from the official records for the property. The prospective purchaser would not buy the property unless the mechanics’ lien was removed.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
2011 Worst Year Ever for Home Sales
September 09, 2011 —
CDJ STAFFSo few new single-family homes have sold in 2011 that expectations are that this will be the worst year for new homes sales since the Commerce Department started tracking this in 1963. The Harford Courant notes that previously builders created a new supply to which was added homes under foreclosure.
Ed Leamer, economist and director of UCLA’s Anderson Forecast, says that recovery would be driven by two sectors, manufacturing and construction. “It doesn’t look like there is going to be a big recovery in manufacturing,” he says. “It is going to have to come in housing.”
The soft housing market, however, is leading to a loss of construction jobs, as reported by the Associated General Contractors of America. As a result, stock prices for the twelve largest publicly-traded home builders have declined 22.7 percent in a market that has declined 4.2 percent overall.
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