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DIRECTORY AND CAPABILITIES

Georgia Court of Appeals Holds That Policyholder Can “Stack” the Limits of Each Primary Policy After Asbestos Claim

December 19, 2018 — Michael S. Levine & Alexander D. Russo - Hunton Insurance Recovery Blog
A Georgia Court of Appeals judge recently ruled that Scapa Dryer Fabrics was entitled to $17.4 million worth of primary coverage from National Union Fire Insurance Company of Pittsburgh, PA for claims of injurious exposure to Scapa’s asbestos-containing dryer felts. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Scapa Dryer Fabrics, Inc., No. A18A1173, 2018 WL 5306693, at *1 (Ga. Ct. App. Oct. 26, 2018). Scapa sought coverage under five National Union policies issued from 1983–1987. The 1983, 1984 and 1985 National Union policies had limits of $1 million per occurrence and $1 million in the aggregate. The liability limits for the 1986 and 1987 renewal policies were amended by endorsement to $7.2 million. Scapa sought to recover the full $17.4 million from all five policies. National Union argued that a “Non-Cumulative Limits of Liability Endorsement” in the 1986 and 1987 policies limited Scapa’s recovery to only $7.2 million. Scapa sued National Union and its sister company, New Hampshire Insurance Company (from which Scapa purchased excess liability coverage), in Georgia state court. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Alexander D. Russo, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Russo may be contacted at arusso@HuntonAK.com Read the court decision
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Massachusetts Lawyers Weekly Honors Construction Attorney

November 20, 2013 — CDJ STAFF
Massachusetts Lawyers Weekly has named Grace V. B. Garcia one of its 2013 Top Women of the Law. She is an attorney at Morrison Mahoney LLP in Boston, and her practice focuses on construction law, product liability, premises liability, commercial litigation, and American with Disability Act cases. Read the court decision
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"My Bad, I Thought It Was in Good Faith" is Not Good Enough - Contractor Ordered to Pay Prompt Payment Penalties

February 23, 2016 — David A. Harris & Jesse M. Sullivan – Haight Brown & Bonesteel LLP
Retention clauses are almost always included in California construction contracts and permit an Owner to withhold a portion of what is owed to the General Contractor as security to ensure the proper completion of the work. General Contractors pass the withholding of retention down to the subcontractors. Thus, if the subcontractor fails to complete its work, or fails to correct deficiencies, the Owner/General Contractor can use the retention to pay the costs of completing or correcting the subcontractor’s work. The contractor must release any retention it receives from the owner within ten days unless a “good faith dispute exists between the direct contractor and the subcontractor.” (Civil Code section 8814.) Where there is a good faith dispute, the contractor “may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” (Civil Code section 8814(c).) If the contractor wrongfully withholds retention, it must not only pay the retention but must also pay the subcontractor “a penalty of 2 percent per month on the amount wrongfully withheld.” The contractor must also pay the subcontractor’s costs and reasonable attorney’s fees incurred in collecting the retention. (Civil Code section 8818.) Reprinted courtesy of David A. Harris, Haight Brown & Bonesteel LLP and Jesse M. Sullivan, Haight Brown & Bonesteel LLP Mr. Harris may be contacted at dharris@hbblaw.com Mr. Sullivan may be contacted at jsullivan@hbblaw.com Read the court decision
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Can a Contractor be Liable to Second Buyers of Homes for Construction Defects?

November 05, 2014 — Craig Martin - Construction Contractor Advisor
Whether a contractor will be liable to a second purchaser, even though the contractor never contracted with the second purchaser, varies state to state. The Pennsylvania Supreme Court, in Conway v. The Cutler Group, is the latest court to rule that a subsequent purchaser lacks privity and cannot pursue an action against the builder. In that case, the Conways purchased a home from the original owner. After living in the home for about two years, the Conways discovered water leaking around the windows. The Conways sued the builder, alleging breach of the implied warranty of habitability. The builder defended the claim, asserting that it had not contracted with the Conways and thus had not provided any warranties to the Conways. The trial court agreed and dismissed the claim. The first level of appellate court reversed the trial court, holding that the warranty of habitability was intended to level the playing field between the builder and purchaser of a home and it should be extended to subsequent purchasers. The Pennsylvania Supreme Court disagreed and refused to extend any warranties to subsequent purchasers. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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School System Settles Design Defect Suit for $5.2Million

October 01, 2013 — CDJ STAFF
A school district in New York State has settled a dispute with its architectural and engineering firm for $5.2 million. Greece School District alleged that the multi-million dollar remodel lead to a variety of problems due to design defects. The problems included leaking roofs, malfunctioning drainage systems, and problems with heating systems. Tetra Tech had one work at 20 schools in the district. The state Comptroller audited the $119.5 million renovation project and concluded that haste in the planning resulted in costly changes. Prior to the lawsuit, the architectural and engineering firm managed to recoup about $200,000 on behalf of the school district for work that was defective. Read the court decision
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Former Sponsor of the Lenox Facing Suit in Supreme Court

January 13, 2014 — Melissa Zaya-CDJ STAFF
Lewis Futterman, former sponsor of the Lenox condominium in Harlem, New York, is being sued by the condo board for alleged “building code violations, construction defects, and fraud” according to New York Curbed. The residents claim that Futterman filed for bankruptcy in 2010 to avoid paying for repairs. The Lenox condo board filed suit in the New York Supreme Court last December 31st. The Lenox’s condo board claims that the building has “fundamental structural flaws, a defective roof and pervasive leakage,” reports Rowley Amato of New York Curbed. The board also claims the original offering plans were not the same as the units purchased by residents in 2006. Residents paid an estimated two hundred and sixty thousand to repair defects within the condominium, and they are pursuing a minimum of four million in damages. Katherine Clarke of The Real Deal stated that Futterman would only “say that the issue was between the residents and the construction company which built the project.” Read the full story at New York Curbed... Read the full story at The Real Deal... Read the court decision
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White House’s New Draft Guidance Limiting NEPA Review of Greenhouse Gas Impacts Is Not So New or Limiting

September 09, 2019 — Norman F. Carlin & Eric Moorman - Gravel2Gavel Construction & Real Estate Law Blog
On June 21, 2019, the White House Council on Environmental Quality (CEQ) issued draft guidance clarifying the treatment of greenhouse gas (GHG) emissions in environmental impact reviews of federal projects under the National Environmental Policy Act (NEPA). Those wishing to comment on the draft must submit comments within 30 days after it is published in the Federal Register. The draft guidance is part of the Trump Administration’s continuing efforts to streamline the permitting and environmental review process for infrastructure and energy projects. It replaces NEPA guidance on climate impacts issued in 2016 by the Obama administration, which was rescinded by President Trump’s Executive Order 13783 early in 2017. Although some initial reports suggest that the new draft guidance significantly pulls back from the Obama administration’s approach, on closer comparison it does not depart that much from the major recommendations of the rescinded guidance. In general, NEPA requires federal agencies proposing to undertake, approve or fund a major federal action to evaluate its environmental impacts, including both direct and reasonably foreseeable indirect effects; to consider alternatives and mitigation; and to discuss cumulative impacts resulting from the incremental effects of the project when added to those of other past, present, and reasonably foreseeable future projects. The new draft and the rescinded 2016 guidance contain similar recommendations regarding an agency’s obligations to consider indirect and cumulative GHG impacts, as well as on the use of cost-benefit analysis and the contentious Social Cost of Carbon (SCC) metric. Reprinted courtesy of Norman F. Carlin, Pillsbury and Eric Moorman, Pillsbury Mr. Carlin may be contacted at norman.carlin@pillsburylaw.com Mr. Moorman may be contacted at eric.moorman@pillsburylaw.com Read the court decision
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Court Addresses HOA Attempt to Restrict Short Term Rentals

December 11, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent case, the Texas Supreme Court addressed an attempt by a homeowners’ association (“HOA”) to restrict short-term rentals based upon recorded Covenants, Conditions, and Restrictions (“CC&Rs”) applicable to a residential subdivision. The property was a single-family home. The homeowner rented the home through websites such as VRBO. The HOA issued notices of violation; the homeowner kept renting; the HOA assessed fines against the property. The property owner then sought a declaration from the court that the CC&Rs did not impose a minimum duration on occupancy or leasing. The trial court agreed with the HOA. The Texas Court of Appeals also agreed with the HOA. The Texas Supreme Court reversed, holding that the CC&Rs, as properly interpreted, did not prohibit short-term rentals. In arriving at its holding, the Texas Supreme Court analyzed the CC&Rs in detail and came to an interpretation different than the trial court and the Court of Appeals. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

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