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Oregon agreement to procure insurance, anti-indemnity statute, and self-insured retention

March 05, 2011 — CDCoverage.com

In Continental Casualty Ins. Co. v. Zurich American Ins. Co., No. 09-35484 (9th Cir. Oct. 28, 2010), general contractor TCR was sued by an employee of subcontractor Safeway for bodily injuries suffered while working on the project. In the subcontract, Safeway agreed to procure primary insurance providing coverage for TCR for liability arising out of Safeway’s negligence. Safeway’s CGL policy included a self-insured retention that had to be satisfied before the insurer had a duty to defend. TCR filed suit against Safeway alleging that

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Insurer’s Discovery Requests Ruled to be Overbroad in Construction Defect Suit

October 28, 2011 — CDJ STAFF

The US District Court has ruled in the case of D.R. Horton Los Angeles Holding Co. Inc. v. American Safety Indemnity, Co. D.R. Horton was involved in a real estate development project. Its subcontractor, Ebensteiner Co., was insured by ASIC and named D.R. Horton as an additional insured and third-party beneficiary. D.R. Horton, in response to legal complaints and cross-complaints, filed for coverage from ASIC under the Ebensteiner policy. This was refused by ASIC. ASIC claimed that “there is no potential coverage for Ebensteiner as a Named Insurer and/or D.R. Horton as an Additional Insured.” They stated that “the requirements for coverage are not satisfied.”

The case same to trial with the deadline for discovery set at March 1, 2011. ASIC stated they were seeking the developer’s “job file” for the Canyon Gate project. D.R. Horton claimed that ASIC’s discovery request was overbroad and that it would be “unduly burdensome for it to produce all documents responsive to the overbroad requests.”

D.R. Horton did agree to produce several categories of documents, which included:

“(1) final building inspection sign-offs for the homes that are the subject of the underlying litigation;(2) an updated homeowner matrix for the underlying actions; (3) the concrete subcontractor files; (4) the daily field logs for D.R. Horton’s on-site employee during Ebensteiner’s work; (5) documents relating to concrete work, including documents for concrete suppliers; (6) documents relating to compacting testing; (7) documents relating to grading; and (8) D.R. Horton’s request for proposal for grading”

The court found that the requests from ASIC were overbroad, noting that the language of the ASIC Request for Production of Documents (RFP) 3-5 would include “subcontractor files for plumbing, electric, flooring, etc. - none of these being at issue in the case.” The court denied the ASIC’s motion to compel further documents.

The court also found fault with ASIC’s RFPs 6 and 7. Here, D.R. Horton claimed the language was written so broadly it would require the production of sales information and, again, subcontractors not relevant to the case.

Further, the court found that RFPs 8, 10, 11, and 13 were also overbroad. RFP 8 covered all subcontractors. D.R. Horton replied that they had earlier complied with the documents covered in RFPs 10 and 11. The court concurred. RFP 13 was denied as it went beyond the scope of admissible evidence, even including attorney-client communication.

The court denied all of ASIC’s attempts to compel further discovery.

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Not Remotely Law as Usual: Don’t Settle for Delays – Settle at Remote Mediation

May 25, 2020 — Victor J. Zarrilli, Robert G. Devine & Michael W. Horner - White and Williams LLP
The emergence and rapid spread of COVID-19 has created extraordinary circumstances that have significantly impacted how we go about living, working and interacting with one another. The practice of law is no exception. While most cases have been postponed and some extended indefinitely, the issues and disputes that first triggered the litigation remain. In fact, the burdens created by social distancing and other responses to the COVID-19 outbreak have served to only increase these disputes and create an urgent need in some for quick resolution. In our previous article, we summarized some of the best practices that should be applied when taking and defending depositions in a remote, virtual setting. That technology can also offer the same benefits for alternative dispute resolutions. If planned properly, the use of technology allows remote mediations to be conducted as seamlessly as in-person mediations and, in some circumstances, affords additional benefits that can achieve the best possible resolution for all sides. This article summarizes the opportunities technology has created by which parties can attempt to resolve their disputes through alternative dispute resolution methods, even in a time of social distancing. Reprinted courtesy of White and Williams LLP attorneys Victor J. Zarrilli, Robert G. Devine and Michael W. Horner Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Mr. Horner may be contacted at hornerm@whiteandwilliams.com Read the court decision
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At Least 23 Dead as Tornadoes, Severe Storms Ravage South

March 18, 2019 — The Associated Press (Kim Chandler) - Bloomberg
Beauregard, Ala. (AP) -- A tornado roared into southeast Alabama and killed at least 23 people and injured several others Sunday, part of a severe storm system that caused catastrophic damage and unleashed other tornadoes around the Southeast. "Unfortunately our toll, as far as fatalities, does stand at 23 at the current time," Lee County Sheriff Jay Jones told WRBL-TV of the death toll. He added that two people were in intensive care. Drones flying overheard equipped with heat-seeking devices had scanned the area for survivors but the dangerous conditions halted the search late Sunday, Jones said. "The devastation is incredible," he said. An intense ground search would resume Monday morning. Read the court decision
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Montana Federal District Court Finds for Insurer in Pollution Coverage Dispute

October 24, 2021 — Melanie A. McDonald - Saxe Doernberger & Vita
Applying Louisiana law, a recent federal court decision exemplifies why policyholders should thoroughly read claims-made policies to understand when notice is due to insurers and truthfully complete policy applications. In Admiral Insurance Company v. Dual Trucking, Inc.,1 the Court determined the insurer, Admiral Insurance Company (“AIC”), owed no duty to defend or indemnify Dual Trucking and Transport, LLC (“DTT”), Dual Trucking of Montana, LLC (“DTM”), and Dual Trucking, Inc. (“DTI”) (collectively, the “Dual Entities”) under two Environmental Impairment Liability Policies (“EIL Policies”) and four Contractor Pollution Liability Policies (“CPL Policies”). The Court justified its decision because the Dual Entities: 1) did not give notice during the 2012-2013 EIL Policy period; 2) had discovered or knew of, but did not disclose, potential pollution conditions before the inception of the 2013-2014 EIL Policy and before the expiration of the extended reporting period of the 2012-2013 EIL Policy; 3) failed to provide AIC with notice during the extended reporting period of the 2013-2014 EIL Policy of claims for which the Dual Entities were seeking coverage; and 4) materially misrepresented known facts on the CPL Policy applications. I. Factual Background. The Dual Entities were Louisiana-based companies that provided oilfield equipment rental services. In 2011, the Dual Entities leased land in Montana under three leases, collectively referred to as “the Bainville site.” Shortly afterward, the Dual Entities applied for, and AIC issued, an EIL Policy and two CPL Policies with a policy period of October 1, 2012, to October 1, 2013. AIC renewed all three policies for the October 1, 2013, to October 1, 2014, policy period. Read the court decision
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Reprinted courtesy of Melanie A. McDonald, Saxe Doernberger & Vita
Ms. McDonald may be contacted at MMcDonald@sdvlaw.com

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Florida SB 2022-736: Construction Defect Claims

February 07, 2022 — Kelly A. Johnson - Saxe Doernberger & Vita, P.C.
*Special thank you to SDV Law Clerk Iliriana Fteja for contributing to this article. A new bill (SB 2022-736) was recently introduced to the Florida Senate. The proposed amendments to the statutes of limitations and repose could significantly impact construction defect claims by effectively creating additional exposure to contractors and insurance carriers. The proposed bill requires all actions founded on the design, planning, or construction of an improvement to real property to be commenced within four years after the time to commence an action begins. Under the proposed amendment, the time to commence an action runs from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and their employer. This provision would effectively alter the time to commence an action to whichever triggering event is earliest instead of the latest triggering event per the previous statute. Read the court decision
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Reprinted courtesy of Kelly A. Johnson, Saxe Doernberger & Vita, P.C.
Ms. Johnson may be contacted at KJohnson@sdvlaw.com

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Do You Have an Innovation Strategy?

November 08, 2017 — Aarni Heiskanen - AEC Business
Construction and engineering are among the top five industries ripe for disruption according to research by PwC. Will innovation come from tech companies and startups, or could established firms be proactive? For Granlund, founded in 1960, innovation is a strategic essential and a core competency. Granlund is a Finnish design, consultancy, and software services firm specializing in energy efficiency. It employs more than 800 people in 20 locations in Finland and in its offices in Shanghai and Dubai. The company is known internationally for being in the vanguard of building information modeling and for real estate management software development. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at info@aepartners.fi

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A Quick Virginia Mechanic’s Lien Timing Refresher

February 27, 2023 — Christopher G. Hill - Construction Law Musings
As those who read Construction Law Musings on a regular basis know, mechanic’s liens are a big part of my construction law practice. These tricky and strictly enforced statutory collection tools are very powerful when correctly recorded and utterly useless if they aren’t recorded in a timely fashion and with the correct information contained within them. Couple that fact with recent changes to the mechanic’s lien form in 2019, and I feel the need to give a quick refresher. If you’ve kept up with Musings, you know about the two big numbers for Virginia mechanic’s lien timing, 90 and 150. These should be kept in mind for every general contractor, subcontractor, or supplier on any construction project in Virginia. Virginia Code Section 43-4 sets out the reasons to keep these numbers in mind. The code section sets out why you need to know these numbers. The 90 refers to the deadline for recording a lien. This number affects the right to a lien in Virginia. In order to preserve lien rights, a construction contractor must record the lien within ninety days of the last day of the last month in which the last work was performed or no later than ninety days from the date of completion of the project or other termination of work. The short version is that most general contractors on commercial projects have 90 days from the last work in which to record their lien and most subcontractors have 90 days from the last day of the last month of work. However, the best practice is to simply calculate the 90 days from the last work performed or material supplied to avoid issues and arguments between attorneys regarding timing. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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