Insurer Must Pay To Defend Product Defect Claims From Date Of Product Installation
January 31, 2018 —
Michael S. Levine & Brittany M. Davidson - Insurance Recovery BlogAn Iowa federal court recently ruled that an insurer must pay its policyholder’s defense costs from the date of installation of the allegedly faulty product, even though the underlying suits failed to allege when damage purportedly occurred. The ruling opens the door under each of the policyholder’s successive liability policies from 2000 to 2008, allowing the policyholder to recover millions of dollars in defense costs.
The policyholder sought summary judgment concerning the date(s) on which the insurer’s defense obligation was triggered by fourteen of the fifteen claims asserted against it. The policyholder argued that the duty attached from the moment property damage potentially occurred, meaning the time when the underlying claimant installed or potentially could have installed the windows at issue in the underlying claims. The policyholder cited to the following evidence to support its claim: actual dates of installation (where available), dates of delivery, purchase or manufacture of the windows; and policy period referenced in the insurer’s claims notes as being potentially implicated by the claim.
Reprinted courtesy of
Michael S. Levine, Hunton & Williams and
Brittany M. Davidson, Hunton & Williams
Mr. Levine may be contacted at mlevine@hunton.com
Ms. Davidson may be contacted at davidsonb@hunton.com
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Fannie Mae Says Millennials Are Finally Leaving Their Parents' Basements
December 17, 2015 —
Julie Verhage – BloombergParents, rejoice. Your offspring may finally be moving out of the family basement.
A new report (PDF) from Fannie Mae, the U.S. government-backed mortgage company, suggests that the millennial generation is getting a move on.
"According to the ACS [Census Bureau’s American Community Survey], the number of homeowners aged 25-34 fell by more than 250,000 in each year between 2007 and 2012, but has declined by less than 100,000 annually since then," Fannie Mae said. "In fact, the decline between 2013 and 2014 was statistically insignificant, the first indication of stability in the number of young homeowners since the onset of the Great Recession." So while the number of homeowners in that age range is still on the decline, the trend looks poised for a reversal, and Fannie Mae said it won't take much to see positive growth in millennial homeownership in the near future.
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Julie Verhage, Bloomberg
California Contractors – You Should Know That Section 7141.5 May Be Your Golden Ticket
February 18, 2020 —
Amy L. Pierce, Mark A. Oertel & John Lubitz - Lewis Brisbois Bisgaard & Smith LLPUnder California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., all contractors’ and subcontractors’ licenses expire two years from the last day of the month in which the license issued, or two years from the date on which the renewed license last expired. The Contractors State License Board (CSLB) sends licensees a renewal application 60 to 90 days prior to the date the license is set to expire.
Most contractors have various controls in place to make sure that the renewal application is timely filed and the required fee paid. Even so, we are only human and mistakes are made, and a renewal application filing deadline can be missed for a variety of reasons, e.g., the licensee’s mailing address has not been updated on the CSLB’s records, the individual responsible for filing the license renewal is out on leave, there has been a death in the family or a serious health issue, etc. Quoting Robert Burns, even “[t]he best-laid schemes of mice and men go oft awry” (To a Mouse, 1786).
General contractors should be cognizant of both their and their subcontractors’ license renewal obligations and deadlines.
If a licensee missed timely filing its renewal application, Business & Professions Code Section 7141.5may provide some relief. Section 7141.5 provides that the Registrar of Contractors,
“may grant the retroactive renewal of a license if the licensee requests the retroactive renewal in a petition to the registrar, files an application for renewal on a form prescribed by the registrar, and pays the appropriate renewal fee and delinquency fee prescribed by this chapter. This section shall only apply for a period not to exceed 90 days from the due date and only upon a showing by the contractor that the failure to renew was due to circumstances beyond the control of the licensee.”
Reprinted courtesy of Lewis Brisbois Bisgaard & Smith LLP attorneys
Amy Pierce,
Mark Oertel and
John Lubitz
Ms. Pierce may be contacted at Amy.Pierce@lewisbrisbois.com
Mr. Oertel may be contacted at Mark.Oertel@lewisbrisbois.com
Mr. Lubitz may be contacted at John.Lubitz@lewisbrisbois.com
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New York City Council’s Carbon Emissions Regulation Opposed by Real Estate Board
July 01, 2019 —
Kristen E. Andreoli - White and William's Taking Care of Business BlogOn April 10, 2019, the New York City Council adopted Intro No. 1253 – the largest effort in a series of bills known as the Climate Mobilization Act. Intro No. 1253 enacts new regulations to reduce the city’s current largest source of carbon emissions – the operation of buildings.
Jared Brey, in his April 25, 2019 article in U.S. News and World Report, “How an Evolving Movement Pushed NYC to Address the Climate Crisis,” states that “[i]n the city, around 70% of carbon emissions are produced by buildings, and around half of all building emissions are produced by just 2% of structures larger than 25,000 square feet that are covered by the bill.”
The level of development, population density and relative economic power of a city such as New York have made this bill particularly interesting to other jurisdictions around the globe which may be considering their own similar legislation. In his article, Brey cites David Miller, a former mayor of Toronto and the North American regional director for C40, a group of cities coordinating strategies to meet the goals of the Paris Agreement:
“I think what New York has done is globally significant … It’s really a huge step forward, using the city’s powers and influence to directly address a huge source of greenhouse gas emissions without waiting for the national government or the international community to act.”
Several other jurisdictions have already begun to approach this issue, generally either by passing bills or creating task forces to further investigate how to meet stated emissions reduction goals. In 2018, Governor Jerry Brown of California signed an executive order with a stated goal of net-zero carbon emissions within the state by the year 2045. The California State Assembly subsequently passed a bill creating a task force to investigate the potential to reduce the emission of greenhouse gasses by both commercial and residential buildings by 2030, although their plan is not due until January 1, 2021. The city of San Jose has implemented new building standards for all new residential buildings to be net-carbon neutral by 2020, and all new commercial buildings must be so by 2030.
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Kristen E. Andreoli, White and Williams LLPMs. Andreoli may be contacted at
andreolik@whiteandwilliams.com
Determining the Cause of the Loss from a Named Windstorm when there is Water Damage - New Jersey
March 23, 2020 —
Anna M. Perry - Saxe Doernberger & VitaWater damage, while one of the leading causes of loss under a property policy, often results in some of the most complex claims due to the intersection of exclusions, sublimits, and complex wording within the policy. One particularly difficult issue is whether water damage caused by a storm surge is covered by the flood sublimit, or under the general policy or water limit. In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s (“NJTC v. Lloyd’s”), the New Jersey Appeals Court found that the “flood” sublimit of the policy should not apply as the cause of the loss was a “named windstorm” and not a “flood.”
In NJTC v Lloyd's the court was asked to determine whether a flood sublimit applied to losses sustained during Superstorm Sandy. The court found that although there was “flooding,” the water damage was more closely related to the “named windstorm”, and therefore, the $400 million policy limits should apply. The court focused its analysis on the definitions for “flood” and “named windstorm” and by applying the efficient proximate cause doctrine to determine which would apply.
When reviewing the definitions within the property policies, the court determined that although the loss would qualify under the definition of “flood,” the policy also contained a definition for “named windstorm” which “more specifically encompasses the wind driven water or storm surge associated with a ‘named windstorm’”1. In addition, the policy did not specifically state that “storm surge” associated with a “named windstorm” should be considered a “flood” event and fall under the “flood” sublimit.
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Anna M. Perry, Saxe Doernberger & VitaMs. Perry may be contacted at
amp@sdvlaw.com
How Are You Dealing with Material Delays / Supply Chain Impacts?
June 07, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn a prior article I discussed a material escalation provision in your construction contract to account for the volatility of the material price market. While including such a provision may not have been much of a forethought before, it is now!
What about concerns with the actual supply chain that impacts the availability of and the lead time of materials? How are you addressing this concern in your construction contract?
The pandemic has raised awareness to this issue as certain material availability has been impacted by the pandemic. As a result, parties in construction have tried to forecast those materials where delivery issues may occur including those materials with longer than expected lead times. But equally important is how this issue is being addressed in your construction contract including how you want to negotiate this risk in future construction contracts.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Traub Lieberman Team Obtains Summary Judgment in Favor of Client Under Florida’s Newly Implemented Summary Judgment Standard
August 23, 2021 —
Heather Fleming & Gregory H. Lercher - Traub LiebermanOn July 27, 2021, the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida granted summary judgment in favor of a client insurer defended by Traub Lieberman Partner Heather M. Fleming and Associate Gregory H. Lercher in connection with a first party property lawsuit arising from Hurricane Irma that involved multiple, comingled claims, in part resolved via prior appraisal.
As of May 1, 2021, Florida state courts have applied a new summary judgment standard after Florida’s longstanding rule was amended by the Supreme Court of Florida. The amendment aligns Florida’s standard with that of the federal courts and the supermajority of states that have already adopted the federal summary judgment standard codified in Rule 56 of Federal Rules of Civil Procedure. The Supreme Court of Florida’s stated goal in adopting the new standard across the Sunshine State was to improve the fairness and efficiency of Florida's civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.
Reprinted courtesy of
Heather Fleming, Traub Lieberman and
Gregory H. Lercher, Traub Lieberman
Ms. Fleming may be contacted at hfleming@tlsslaw.com
Mr. Lercher may be contacted at glercher@tlsslaw.com
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COVID-19 and Mutual Responsibility Clauses
June 01, 2020 —
Joseph M. Leone - ConsensusDocsAs everyone knows, there is a tremendous amount of uncertainty in the construction industry due to the COVID-19 pandemic. Schedules, productivity, safety processes, and seemingly everything else are being affected. In these difficult times, most contractors are making every effort to work together to solve the problems caused by COVID-19. But what happens when differences arise between project owners, contractors, and subcontractors as to the effect of COVID-19 on a project? One party may want to continue pushing the schedule, others may want to slow down, or, more likely, not be able to keep up with the original schedule because of some reason related to COVID-19. As between a prime contractor and a subcontractor, a mutual responsibility clause can provide some clarity or, unfortunately, depending on how the subcontract is written, confusion.
Almost all subcontracts have a clause which flows down the prime contractor’s obligations on a project to the subcontractor as applicable to the subcontractor’s work. Known as “flow-down” clauses, this clause works in one direction; obligations of the prime contractor “flow-down” to the Subcontractor. A mutual responsibility clause, in essence, works in both directions. The subcontractor is required to perform its obligations consistent with the prime contractor’s obligations to the owner and the subcontractor is granted the same rights against the prime contractor which the prime contractor has against the owner. Obligations flow down and rights flow up. The rights and obligations flowing through the prime contractor include, the obligation to perform the work in accordance with the plans and specifications, the obligation to meet the schedule constraints in the prime agreement, and the right to extensions of time and change orders to the extent the prime contractor obtains the same.
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Joseph M. Leone, Drewry Simmons Vornehm, LLP Mr. Leone may be contacted at
jleone@dsvlaw.com
