Another Way a Mechanic’s Lien Protects You
September 14, 2020 —
Christopher G. Hill - Construction Law MusingsHere at Construction Law Musings, we have discussed mechanic’s lien law in Virginia on multiple occasions. We have discussed everything from the very picky nature of the perfection and enforcement of these liens to the changes that the Virginia General Assembly periodically makes to these requirements and how to defend against such liens.
While the steps taken and content of a Virginia mechanic’s lien will be strictly construed by the Virginia courts, when perfected properly, a mechanic’s lien can and will put you as a construction company seeking payment in a better position than if no lien were recorded. The direct benefit is that you now hold a lien on the property on which you performed work that takes a priority (read will be paid before) any mortgage or other lien on that structure. In other words, if you, the bank, or the owner seeks to sell the property through foreclosure or otherwise, mechanic’s lien holders generally get paid first. While there are exceptions to be explored with an experienced Virginia construction attorney, this is the general rule and the power of a mechanic’s lien.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
PA Superior Court Provides Clarification on Definition of CGL “Occurrence” When Property Damage Is Caused by Faulty Building Conditions
September 30, 2019 —
Anthony L. Miscioscia & Konrad R. Krebs - White and Williams LLPThe standard for an “occurrence” under a commercial general liability (CGL) insurance policy has been addressed on several occasions by Pennsylvania courts when an insured has allegedly performed faulty workmanship on a construction project. Specifically, in Pennsylvania, a claim for damages arising from an insured’s performance of faulty workmanship pursuant to a construction contract, where the only damage is to property supplied by the insured or worked on by the insured, does not constitute an “occurrence” under the standard commercial general liability insurance policy definition. But what about the circumstance when the insured has failed to perform contractual duties where the claim is for property damage to property not supplied by the insured or unrelated to the service the insured contracted to provide? The Pennsylvania Superior Court recently addressed this question in Pennsylvania Manufacturers Indemnity Co. v. Pottstown Industrial Complex LP, No. 3489 EDA 2018, 2019 Pa. Super. 223, 2019 Pa. Super. LEXIS 729* (Pa. Super. 2019).
Pottstown Industrial Complex arose out of an underlying dispute between a landlord and a commercial tenant who had leased space to store its product inventory. The tenant alleged that the landlord was responsible under the lease for keeping the roof “in serviceable condition in repair.” Notwithstanding this responsibility, the tenant alleged that the landlord failed to properly maintain and repair the roof, resulting in leaks and flooding during four separate rainstorms, destroying over $700,000 in inventory. The tenant specifically alleged that the floods were caused by poor caulking of the roof, gaps and separations in the roofing membrane, undersized drain openings, and accumulated debris and clogged drains.
The insurer filed a declaratory judgment action, seeking a determination that there was no coverage under a commercial general liability policy issued to the landlord. Following a motion for judgment on the pleadings, the trial court entered an order in favor of the insurer, holding that allegations of inadequate roof repairs were claims for faulty workmanship and were not covered under Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co., 908 A.2d 888 (Pa. 2006) and Millers Capital Insurance Co. v. Gambone Brothers Development Co., 941 A.2d 706 (Pa. Super. 2007).
Reprinted courtesy of
Anthony Miscioscia, White and Williams LLP and
Konrad Krebs, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Krebs may be contacted at krebsk@whiteandwilliams.com
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Mutual Or Concurrent Delay Caused By Subcontractors
March 23, 2020 —
David Adelstein - Florida Construction Legal UpdatesHow are delay damages treated when two subcontractors cause a mutual or concurrent delay to the project?
Assume multiple subcontractors concurrently contributed to an impact to the critical path resulting in a delay to the project. The delay caused the prime contractor to: (1) be assessed liquidated damages from the owner and (2) incur extended general conditions. The prime contractor will be looking to the subcontractors for reimbursement for any liquidated damages it is assessed along with its extended general conditions costs.
There is really no great case that addresses this point when two (or more) subcontractors mutually or concurrently delay the project. It is also not uncommon, and frankly expected, that a subcontractor will point the finger at another subcontractor for the cause of the delay or that another subcontractor was concurrently delaying the project.
The prime contractor should absolutely, without any exception, undertake efforts with a scheduling consultant to allocate the delay caused by subcontractors. Taking an approach that joint and several liability applies between multiple subcontractors and/or not trying to apportion delay because the subcontractors concurrently delayed the critical path at the same time is probably not the best approach. The prime contractor should have an expert render an opinion as to the allocation of the delay period amongst responsible subcontractors that delayed the critical path. Not doing so, in my opinion, is a mistake.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Brazil's Detained Industry Captain Says No Plea Deals Coming
September 03, 2015 —
Sabrina Valle & Yasmine Batista – BloombergMarcelo Odebrecht, the most prominent executive who has been detained in Brazil’s largest corruption scandal, said he sees no reason to strike a plea bargain with authorities because he has nothing to reveal.
Odebrecht said in a congressional hearing Tuesday that he probably discussed with President Dilma Rousseff and her predecessor Luiz Inacio Lula da Silva the relationship between Odebrecht SA and Petrobras, the state-controlled oil producer at the center of the kickback investigation. It was a natural topic given the economic importance of his construction and engineering empire, he said. He declined to answer questions related to the criminal case, saying it is ongoing and he is unaware of the full extent of the accusations.
Reprinted courtesy of
Sabrina Valle, Bloomberg and
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Traub Lieberman Partners Lenhardt and Smith Obtain Directed Verdict in Broward County Failed Repair Sinkhole Trial
September 03, 2019 —
Michael Francis Lenhardt & Burks A. Smith, III - Traub LiebermanOn Tuesday, July 16, 2019, Traub Lieberman Partners Michael Lenhardt and Burks Smith won a Directed Verdict at trial in a dispute over Sinkhole Loss coverage in Broward County Circuit Court. The lawsuit arose out of a claim for Breach of Contract involving an alleged “failed repair” of a 2005 sinkhole at the insureds’ property. The Plaintiffs argued that their Policy Limits did not apply because the carrier allegedly undertook the subsurface repairs, relying on Drew v. Mobile USA Ins. Co., 920 So.2d 832 (Fla. 4thDCA 2006). The Plaintiffs asserted that because the insurance company allegedly hired the below ground repair company, a “new contract” was formed, and the Plaintiffs should be entitled to limitless repairs to their home, notwithstanding the Policy Limits. This argument obviously presented the carrier with very significant exposure.
Attorneys Lenhardt and Smith provided a vigorous defense for the insurance company at trial, during which they presented the jury with evidence that the carrier did not, in fact, hire the subsurface repair company. They further established to the jury that the insureds actually signed a contract with the repair company directly, and that the defendant did not invoke the Our Option repair clause of the Policy. After the Plaintiffs rested their case, Mr. Lenhardt and Mr. Smith moved the Court for entry of a directed verdict. The defense argued to the Court that the Plaintiffs could not prove their case to the jury based upon the facts presented as a matter of law, thus entitling the insurance company to a defense verdict.
Reprinted courtesy of
Michael Francis Lenhardt, Traub Lieberman and
Burks A. Smith, III, Traub Lieberman
Mr. Lenhardt may be contacted at mlenhardt@tlsslaw.com
Mr. Smith may be contacted at bsmith@tlsslaw.com
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Coverage For Advertising Injury Barred by Prior Publication Exclusion
July 01, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Ninth Circuit held that a claim for advertising injury was properly denied under the prior publication exclusion. Street Surfing, LLC v. Great Am. E&S Ins. Co., 2014 U.S. App. LEXIS 10737 (9th Cir. June 10, 2014).
Street Surfing began selling a two-wheeled, inline skateboard called the "Wave" in December 2004. By 2007, Street Surfing also sold and advertised accessories for the Wave, such as "Lime Green Street Surfing Wheels for The Wave," and the "New Ultimate Street Surfer Wheel Set."
Rhyn Noll, who owned the registered trademark "Streetsurfer," sued Street Surfing in June 2008, claiming trademark infringement, unfair competition and unfair trade practices. Street Surfing had known that Noll owned the "Streetsurfer" trademark since early 2005. In September 2008, Street Surfing submitted a claim for coverage to Great American and tendered Noll's complaint.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
White and Williams Ranked in Top Tiers of "Best Law Firms"
November 08, 2021 —
White and Williams LLPWhite and Williams has achieved national recognition from U.S. News and World Report as a "Best Law Firm" in the practice areas of Insurance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law and Media Law. Our Boston, Delaware, New Jersey, New York City and Philadelphia offices have also been recognized in their respective metropolitan regions in several practice areas.
National Tier 1
Insurance Law
National Tier 2
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
National Tier 3
Media Law
Metropolitan Tier 1
Boston
Insurance Law
Litigation - Insurance
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White and Williams LLP
Supreme Court Declines to Address CDC Eviction Moratorium
August 04, 2021 —
Zachary Kessler, Amanda G. Halter & Adam Weaver - Gravel2Gavel Construction & Real Estate Law BlogIn a closely watched 5-4 decision, the U.S. Supreme Court sided against the challengers to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), keeping a stay in place that leaves the eviction ban in effect through July 31. The CDC has indicated it will not renew the eviction moratorium when it expires at the end of the month.
The CDC’s eviction moratorium was first adopted at the expiration of the CARES Act’s limited eviction protection for federally funded rental properties. The more broadly applicable order, extended under both the Trump and Biden administrations, prohibited landlords from evicting tenants unable to pay due to the financial impacts of the COVID-19 pandemic, when the tenant confirmed in writing that they had done their best to make any partial payment, were at risk of becoming homeless or having to move into unsafe group housing, and earn below a set income limit. The CDC extended the order most recently on June 24. In announcing that one-month extension, CDC director Dr. Rochelle Walensky indicated that it would be the order’s final extension.
Reprinted courtesy of
Zachary Kessler, Pillsbury,
Amanda G. Halter, Pillsbury and
Adam Weaver, Pillsbury
Mr. Kessler may be contacted at zachary.kessler@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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