Texas Supreme Court Holds Anadarko’s $100M Deepwater Horizon Defense Costs Are Not Subject To Joint Venture Liability Limits
February 27, 2019 —
Sergio F. Oehninger & Michael S. Levine - Hunton Andrews KurthReversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019).
While the Lloyd’s of London insurers had agreed to pay Anadarko $37.5 million for damages, they declined to cover $100 million-plus in defense fees, arguing that both Anadarko’s liability and defense expenses are subject to the $37.5 million joint venture limit for “liability” insured. Anadarko asserted that only amounts paid as damages to third parties are subject to that limit. Defense costs, however, are not amounts paid as damages to a third party and, thus, are not a “liability.” Those amounts, therefore, are not subject to the joint venture limit and are instead subject to the policy’s $150 million coverage limit.
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
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10 Answers to Those Nagging Mechanics Lien Questions Keeping You Up at Night. Kind of
November 05, 2014 —
Garret Murai - California Construction Law BlogConstruction lawyers may not ponder the great questions in life.
We leave that to the estate planning attorneys.
But ponder we do.
And the next case, as I’ll explain below, “kind of” answers 10 important mechanics lien questions we construction attorneys toss and turn over at night.
Background
In Palomar Grading & Paving, Inc. v. Wells Fargo Bank, Case Nos. G049907 and G049910 (October 14, 2014), developer Inland-LGC Beaumont, LLC (“Inland”) hired general contractor 361 Group Construction Services, Inc. (“361″) to construct a Kohl’s department store in Beaumont, California.
The Kohl’s department store was to be constructed on one parcel of a three-parcel tract. Inland later sold the parcel on which the Kohl’s department store was to be located to Kohl’s and the two other parcels were later acquired by Wells Fargo who foreclosed on the construction loan for the project.
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Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
Anthony Garasi, Jared Christensen and August Hotchkin are Recognized as Nevada Legal Elite
July 06, 2020 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is proud to announce Partners
Anthony Garasi and
Jared Christensen in our Las Vegas office, along with Associate
August Hotchkin in our Reno office are being recognized as Nevada Legal Elites in the Nevada Business Magazine.
The Nevada Legal Elite list includes the top 4 percent of attorneys in the state broken down by location. To qualify, each nominee goes through an extensive verification process resulting in the top attorneys in the state, chosen by their peers. Upon the nomination process closing, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Administrative and Environmental Law Cases Decided During the U.S. Supreme Court’s 2017-2018 Term
July 28, 2018 —
Anthony B. Cavender & Amy L. Pierce - Gravel2GavelUnlike other Terms, only a handful of cases addressed administrative and environmental law issues in the U.S. Supreme Court’s 2017-2018 Term. However, the next Term of the Court promises to be more active in these areas.
- On January 22, 2018, the Court issued a unanimous opinion in the Clean Water Act (CWA) case, Nat’l Assoc. of Mfrs. v. Dep’t of Defense, holding that the plain language of the CWA requires the appeal of the Environmental Protection Agency’s (EPA) redefinition of “waters of the United States” (WOTUS Rule) must be heard first in the federal district courts. Whereas all appeals of most EPA CWA effluent limitation rules must be heard in the federal Courts of Appeals, Congress chose not to do this with respect to this definitional rule.
The Court points out that reviews in the Courts of Appeals must take place within 120 days of the rule’s promulgation, but any review of a rule in the federal district court must take place within 6 years of the date the claim accrues.
Reprinted courtesy of
Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman and
Amy L. Pierce, Pillsbury Winthrop Shaw Pittman
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com
Ms. Pierce may be contacted at amy.pierce@pillsburylaw.com
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Business Solutions Alert: Homeowners' Complaint for Breach of Loan Modification Agreement Can Proceed Past Pleading Stage
October 08, 2014 —
Krsto Mijanovic, Annette Mijanovic, Blythe Golay - Haight Brown & Bonesteel LLPIn Fleet v. Bank of America, N.A. (No. G050049, published 9/23/14, filed 8/25/14), a California Court of Appeal held that the trial court erred in sustaining the demurrer of a lender, where the homeowners had adequately alleged causes of action for breach of contract, fraud, and promissory estoppel. The homeowners alleged that they made timely payments during the trial period plan under the modification program, but before the last payment was due, the lender foreclosed and their house was sold.
The homeowners had applied for a loan modification and were approved for a trial period plan under the modification program. They were required to make three monthly payments and verify financial hardship to permanently modify their loan. The homeowners made two payments and were told that foreclosure proceedings had been suspended. But before the third payment was due, the lender foreclosed. The trial court found that the trial period plan was not a binding loan modification agreement, so the homeowners had no right to any guaranteed loan modification.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Krsto Mijanovic,
Annette Mijanovic and
Blythe Golay
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Mijanovic may be contacted at amijanovic@hbblaw.com
Ms. Golay may be contacted at bgolay@hbblaw.com
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Appellate Attorney’s Fees and the Significant Issues Test
June 29, 2017 —
David Adelstein - Florida Construction Legal UpdatesThe significant issues test to determine the prevailing party in construction lien actions (which, by the way, also applies to breach of contract actions) applies to appellate attorney’s fees too! Under this test, the trial court has discretion to determine which party prevailed on the significant issues of the case for purposes of attorney’s fees. The trial court also has discretion to determine that neither party was the prevailing party for purposes of attorney’s fees.
In a recent decision, Bauer v. Ready Windows Sales & Service Corp., 42 Fla. L. Weekly D1417a (Fla. 3d DCA 2017), there were competing motions for appellate attorney’s fees. Both parties believed they should be deemed the prevailing party under Florida Statute s. 713.29 (statute that authorizes prevailing party attorney’s fees under Florida’s Construction Lien Law). The appellate court held that neither party was the prevailing party under the significant issues test: “[W]e conclude that each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party.”
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Insurance Policies and Indemnity Provisions Are Not the Same
October 19, 2020 —
Garret Murai - California Construction Law BlogJust because you own a pair of Air Jordans doesn’t make you Michael Jordan. In the next case, Carter v. Pulte Home Corporation, Case No. A154757 (July 23, 2020), the 1st District Court of Appeal denied an insurance carrier’s equitable subrogation claim explaining that an insurer’s obligations under its insurance policy are not the same as an idemnitee’s obligations under an indemnity provision. Or, as aptly put by the Court of Appeal, while a “subrogated insurer is said to ‘stand in the shoes’ of its insured, because it has no greater rights than the insured. Here . . . [the insurer] is seeking to stand in a different, more advantageous set of shoes.”
Carter v. Pulte Home Corporation
Pulte Home Corporation was sued for construction defects by 38 homeowners in two housing developments. Various subcontractors had worked on the projects, but under their subcontracts, each subcontractor agreed to indemnify Pulte from and against “all liability, claims, judgments, suits, or demands for damages to persons or property arising out of, resulting from, or relating to Contractor’s performance of work under the Agreement (‘Claims’) unless such Claims have been specifically determined by the trier of fact to be the sole negligence of Pulte . . . ”
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Will Millennial’s Desire for Efficient Spaces Kill the McMansion?
September 10, 2014 —
Beverley BevenFlorez-CDJ STAFFBuilder Magazine reported that millennials are currently “inhabiting high-tech, yet cozy student housing and apartments” without having “outsized space expectations,” however, that may change over the next ten years as “their preference for the walkable convenience that often accompanies smaller living spaces will collide head on with their parents’ (and grandparents’) insatiable addiction for square footage.” Regardless, builders may decide to change based upon a younger generation that accepts “efficient spaces.”
According to Builder Magazine, Nick Lenhert, executive director at architectural firm KTGY, argued that the young “don’t really want what mom and dad have until they get married. Then all of a sudden things start to revert. They start getting realistic about what they need for the children and what they need for themselves. [Right now,] Gen Y is used to living in small spaces or with roommates because that’s all they can afford.”
However, John Thatch, principal and director of design at the architectural and planning firm Dahlin Group, believes that even as millennials get older and conceivably need greater square footage, there is still a possibility that their tendency toward efficient spaces will continue: “I’m hoping this is the generation [that pulls in house size] because our generation went gigantic. It’s a chance for architects to get back to design smaller, more thoughtful spaces that are flexible.”
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