Design Immunity Defense Gets Special Treatment on Summary Judgment
March 29, 2021 —
Garret Murai - California Construction Law BlogThis may be one that is more for the lawyers than it is for the contractors or owners.
If you’ve ever filed a motion for summary judgment or summary adjudication you know the standard is clear. You’re going to lose if the court finds a disputed issue of material fact. In other words, since summary judgment or summary adjudication is such an extreme remedy – you win without having to go to trial after all – the standard is pretty high. Thus, if there’s a dispute as to a material fact (was the light green or was it red?) it’s enough that the court will deny your motion.
That is, unless you’re seeking summary judgment or adjudication on a design immunity defense as the next case, Menges v. Department of Transportation, Case No. G057643 (December 24, 2020), reveals.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Pennsylvania Supreme Court Denies Review of Pro-Policy Decision
October 22, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to McCarter & English, LLP, “product manufacturers relied on commercial general liability policies to defend and indemnify them for product liability claims,” however, in result of the Pennsylvania Supreme Court’s decision in Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006), “[i]nsurers began denying coverage to Pennsylvania companies – and companies around the country – arguing that a design or manufacturing defect was not an ‘accident.’” McCarter & English, LLP reported that “the tide has begun to turn, and product manufacturers may once again be reliably protected by from product liability claims.”
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Florida Decides Against Adopting Daubert
January 28, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test.
As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million.
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Rahul Gogineni, White and WilliamsMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
Construction Executives Should Be Dusting Off Employee Handbooks
January 03, 2022 —
Adam E. Richards & Andrew Zelman - Construction ExecutiveFor most businesses—large and small—the importance of maintaining and updating an employee handbook that sets forth a uniform set of company policies cannot be understated. The construction industry, which is seemingly plagued by a never-ending labor shortage, necessitating construction executives having to grapple with pandemic-related workplace issues and challenges, is not exempt from the benefits of a thorough, well-formed handbook.
The employee handbook should be a window into the soul of a business. Even though annual updates are appropriate, they seldom occur. To say a lot has happened over the last few years barely begins to scratch the surface. Particularly, during the COVID-19 pandemic, construction executives and human resources professionals within construction-related businesses throughout the country have been forced to evaluate business models, values and cultures in furtherance of deciding where and how to evolve.
Once those decisions are made, the employee handbook is deserving of time and attention. Reflecting the evolution of your construction business is only part of the overall plan; however, demonstrating compliance with new laws is equally important.
Reprinted courtesy of
Adam E. Richards & Andrew Zelman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Shifting Fees and Costs in Nevada Construction Defect Cases
November 26, 2014 —
Casey J. Quinn - Newmeyer & Dillion LLPIn Nevada, homeowners who sue a builder for residential constructional defects may recover attorneys’ fees and costs caused by the defect. Many times, the request for attorneys’ fees can outpace the size of the actual claim for defects. However, Nevada provides builders with two ways to potentially shift the right to recover attorneys’ fees and costs away from the homeowner and to the builder.
The first arises during the Nevada Revised Statutes (NRS) Chapter 40 process (Nevada’s Right to Repair law). After a builder receives notice of construction defects, it is required to provide the claimant with a written response to each defect, which may include a proposal for monetary compensation (including contribution from a subcontractor, supplier, or design professional). See NRS 40.6472. If a claimant unreasonably rejects a reasonable written offer of settlement included in the response and decides to commence litigation, the court may deny the claimant’s attorneys’ fees and costs and award attorneys’ fees and costs to the builder. See NRS 40.650. Thus, by including a reasonable offer of monetary compensation in a Chapter 40 response, a builder could possibly avoid paying any fees and costs and even recover its own fees in defending against the claim.
A second method for shifting fees and costs is through a written offer of judgment (OOJ). See NRS 17.115 and NRCP 68. Not limited solely to construction defect matters, an OOJ is a useful tool in all kinds of litigation. OOJs are designed to facilitate and encourage pre-trial settlement by incentivizing parties to make reasonable settlement offers that—when unreasonably rejected—have the consequence of shifting the right to recover attorneys’ fees. Basically, when a party rejects an OOJ and fails to obtain a more favorable judgment, the court cannot award any attorneys’ fees and costs to the rejecting party and may award attorneys’ fees incurred from the date of the offer to the entry of judgment, as well as all reasonable costs, to the party who made the offer. In a recent decision, the Nevada Supreme Court affirmed that when a homeowner rejects an OOJ and fails to obtain a more favorable judgment, it can wipe out that homeowner’s right to Chapter 40 fees and costs. See Gunderson, et al. v. D.R. Horton, 130 Nev. Adv. Op. 9 (Feb. 27, 2014). In other words, “While NRS Chapter 40 permits an award of reasonable attorney fees proximately caused by a construction defect, it does not guarantee it.” Id.
Because of the potentially harsh consequences of rejecting an OOJ, there are specific requirements that must be met to trigger them. An offer of judgment must be made in writing, can be made at any time at least 10 days before trial, and is irrevocable for 10 days with no provision for withdrawal before the 10 days expire. See Nava v. Second Judicial Dist. Court, 118 Nev. 396, 46 P.3d 60 (2002). A party may make successive offers of judgment, but the most recent offer extinguishes previous offers and is controlling for determining the date from which attorneys’ fees may be awarded. See Albios v. Horizon Communities, Inc. 132 P.3d 1022 (2006).
In Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983), the Nevada Supreme Court explained that the purpose of OOJs are not to cause plaintiffs to unfairly forego legitimate claims. However, when a valid offer of judgment is made, the offer is rejected, and the party rejecting the offer fails to obtain a more favorable judgment, a court must evaluate whether the plaintiff's claim was brought in good faith; whether the offer of judgment was reasonable and in good faith in both its timing and amount; whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and whether the fees sought by the offer are reasonable and justified. “After weighing the foregoing factors, the district judge may, where warranted, award up to the full amount of fees requested.” Id.
It is worth noting that in Albios v. Horizon Communities, Inc. 132 P.3d 1022 (2006), the Nevada Supreme Court held that when a party rejects a reasonable OOJ and is foreclosed from recovering fees and costs, the party is likewise foreclosed from an award of fees and costs under Chapter 40. This means that even if a builder fails to include a monetary settlement offer as part of a Chapter 40 response, it may still avoid paying the claimant’s fees and costs with a reasonable and timely OOJ.
Finally, it is important to remember that OOJs are a powerful tool that can cut both ways. If an OOJ is not reasonable and timely, or if it fails to contemplate all the potential recovery of an offeree, the OOJ may have no effect on the outcome of a case. Moreover, if a party rejects an OOJ and fails to obtain a more favorable judgment, that party could end up paying the offeror’s costs and attorney’s fees incurred from the date of the offer. Given this powerful impact, OOJs should be an integral part of pre-litigation planning and overall litigation strategy.
About the Author
Casey J. Quinn is an associate in the Las Vegas office of
Newmeyer & Dillion LLP. His practice focuses on complex commercial, construction, and insurance litigation and appellate work. Casey can be reached by email at Casey.Quinn@ndlf.com.
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Jersey City, New Jersey, to Get 95-Story Condo Tower
January 21, 2015 —
David M. Levitt and Terrence Dopp – BloombergA Chinese developer is planning a 95-story condominium tower for the Jersey City, New Jersey, waterfront that would be the tallest building in the state.
China Overseas America Inc. plans to construct the 950-foot (290-meter) building at 99 Hudson St., according to a statement on Tuesday from Mayor Steven Fulop. The skyscraper, with 760 for-sale dwellings, would surpass the Goldman Sachs Group Inc. tower two blocks to the south, which is 781 feet tall, according to the statement.
Mr. Levitt may be contacted at dlevitt@bloomberg.net; Mr. Dopp may be contacted at tdopp@bloomberg.net
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David M. Levitt and Terrence Dopp, Bloomberg
Is a Text a Writing?
June 10, 2024 —
Michael Yelle - Ahlers Cressman & Sleight PLLCIs a text message a writing? Project communication is constantly evolving, and text messages are an increasingly common way teams share pictures, video, and provide project updates. When texting is part of the communication flow on a project, contractors and owners might text approvals for extra work, notices of changed conditions, or other information that could be a basis for a change order.
In a text exchange about a compensable event, the notice, reply, and approval are all saved on the phone. But contracts often contain specific requirements for a contractor or subcontractor to request changes and authorization to proceed may be specifically required in writing.
For example, the Associated General Contractors of Washington – 2018 Standard Subcontract says the “Subcontractor shall make no claims for extras unless the same shall be agreed upon
in writing by Contractor prior to performance of any such extra work.” (emphasis added).
The AGC subcontract doesn’t define “writing,” so the subcontractor and contractor might wonder if a text message exchange about a potentially compensable event was an “agreement in writing.”
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Michael Yelle, Ahlers Cressman & Sleight PLLCMr. Yelle may be contacted at
michael.yelle@acslawyers.com
Florida Property Bill Passes Economic Affairs Committee with Amendments
April 14, 2011 —
Beverley BevenFlorez CDJ STAFFThe Florida Property Bill (HBB 803) was passed by the Economic Affairs Committee by a vote of 11-7, according to Property Casualty 360, after adopting nine new amendments. The additions to the bill included limiting notice of claims to a set number of years, extending the statute of limitation on property claims from five years to six years, among others.
HB 803 and SB 408, the Senate companion bill, focus primarily on residential property insurance. They make changes to the Florida Hurricane Catastrophe Fund, while also promoting increased notification of policy changes to policyholders. Sections of the bills provide minor fixes such as renaming Citizens Property Insurance Corporation to Taxpayer-Funded Property Insurance Corporation. However, other sections of the bills contain more significant policy changes such as sinkhole coverage and hurricane claims.
The bills’ intent, according to the SunSentinel.com, is to reduce fraudulent claims and to bring new insurers into the insurance market. However, SunSentinel.com also reports that the bills may drastically increase property insurance premiums.
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