Mid-Session Overview of Colorado’s 2017 Construction Defect Legislation
March 16, 2017 —
David McClain - Colorado Construction LitigationAs the 2017 Colorado legislative session reaches the halfway point, I thought it an opportune time to provide a quick overview of the construction defect bills introduced so far this session.
Senate Bill 17-045, “Concerning a Requirement for Equitable Allocation of the Costs of Defending a Construction Defect Claim,” sponsored by Senators Grantham and Angela Williams and Representatives Duran and Wist, was introduced on January 11th and assigned to the Senate Business, Labor, and Technology Committee. This bill affects construction defect actions in which more than one insurer has a duty to defend a party by providing that if the carriers cannot agree regarding how to allocate defense costs within 45 days of the filing of a contribution action, a court must conduct a hearing regarding the apportionment of the costs of defense, including reasonable attorneys’ fees, among all carriers sharing in the duty to defend within 60 days after an insurer files its claim for contribution, unless the carriers agree to resolve the issue through a mutually agreeable, alternative process. The bill further provides that the court must make a final apportionment of costs after entry of a final judgment resolving all of the underlying claims against the insured. The bill also makes clear that an insurer seeking contribution may also make a claim against an insured or additional insured who chose not to procure liability insurance during any period of time relevant to the underlying action. Finally, the bill states that a claim for contribution may be assigned and that bringing such a claim does not affect any insurer’s duty to defend. The Senate Business, Labor, and Technology Committee heard SB 17-045 on February 8th and referred the bill, as amended, to the Senate Appropriations Committee.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Daily Construction Reports: Don’t Leave the Job Without Them
January 11, 2022 —
Patrick Barthet - Construction ExecutiveTrying to remember exactly what was done at a job site last week, last month or last quarter along with knowing who worked at the site is nearly impossible without a written, video or electronic record for reference. That’s why daily construction reports are so important.
Yet many contractors fail to create these reports. And those that do create them, may do it only at the beginning of a project or sporadically throughout the progress of a job, and generally only when they are reminded to do so. Daily reports only become truly effective when they are, in fact, done daily. Whether it is to help resolve a pending delay issue or clarify a job site access claim, or any number of other matters where what happened at the time is so critical, those daily construction reports should be completed daily.
Be Timely
The reason that daily reports are admissible in court (with corroborating testimony) is that they are interpreted as being recorded at or about the time the events in question occurred. Field managers should, therefore, write up these reports daily while the work is occurring or very soon thereafter to capture as accurate an account as possible. If these reports are not created until the end of the week or month, the information will not be as accurate and may not be as helpful in supporting a particular position.
Reprinted courtesy of
Patrick Barthet, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Barthet may be contacted at
pbarthet@barthet.com
Damages in First Trial Establishing Liability of Tortfeasor Binding in Bad Faith Trial Against Insurer
October 22, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe court considered whether, in a second trial for bad faith, the insured was required to again prove her damages, instead of relying on the jury's damage determination in the first trial where the tortfeasor's liability was established. Geico Gen. Ins. Co. v. Paton, 2014 Fla. Ct. App. LEXIS 14362 (Fla. Ct. App. Sept. 17, 2014).
The insured was injured in a car accident caused by the negligence of the underinsured driver. Geico paid the insured the $10,000 policy limit under her policy. The insured's mother also had uninsured/underinsured coverage with Geico, with policy limits of $100,000. When the insured demanded the $100,000 policy limits from her mother's policy, Geico offered $1,000. Later, Geico offered $5,000, but returned to the $1,000 offer after the insured refused to settle. When the insured reduced her demand to $22,500, Geico did not respond.
The insured sued and the case went to trial. The jury awarded $10,000 for past pain and suffering, and $350,000 for future pain and suffering. The verdict set the insured's total damages at $469,247. Geico did not file a motion for new trial nor did it appeal. Judgment was entered in favor of the insured, but was limited to the $100,000 UM policy limits.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Contract Clauses Only a Grinch Would Love – Part 4
November 30, 2016 —
Garret Murai – California Construction Law BlogScope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The fourth and final part in a multi-part series, here are some other important construction contract clauses that can put a damper on your holidays.
Provision: Warranty Provisions
- Typical Provision: “Subcontractor warrants to Contractor that all materials and equipment furnished shall be new unless otherwise specified and that all Work performed shall be performed in a good and workmanlike manner, of good quality and free from defects, and in conformance with industry standards, manufacturer’s recommendations and the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved, shall be considered defective. Subcontractor agrees to promptly make good any and all defects due to faulty workmanship, materials and/or equipment which may appear within the Contract Documents, and if no such period is stipulated in the Contract, then for a period of one year from the date of acceptance by the Owner. Nothing herein shall shorten or limit any applicable periods of limitations including, but not limited to, those set forth in Civil Code, Part 2, Title 2, Chapter 3.”
- What it Means: Warranty periods are subject to the agreement of the parties. However, warranties are different than limitations periods, such as California’s 4 year statute of repose for patent defects and 10 year statute of repose for latent defects (note: a statute of repose is different than a statute of limitation. A statute of repose sets a deadline based on an event. So, for example, under the 10 year statute of repose for latent defects a claimant must bring a latent defect claim within 10 years following substantial completion even if the latent defect wasn’t discovered until 10 years and 1 month following substantial completion. A statute of limitation, in contrast, sets a deadline based on the occurrence of an injury or damage. So, for example, California has a 2 year statute of limitation for personal injuries, which sets a deadline of 2 years from the date of injury to bring a personal injury claim). Warranty periods are also different from limitations periods because most warranties require work to be corrected at no cost, and because many contracts include attorney’s fee provisions, breach of a warranty can give rise to claim for attorney’s fees as well.
- What You Can Do: Lower-tiered parties should examine warranty provisions to see if they are reasonable, and if not reasonable, should seek to either eliminate or limit those provisions, such as by reducing the warranty period or providing different warranty periods for different components of work, etc.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
No Coverage Under Anti-Concurrent Causation Clause
October 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe policy's anti-concurrent causation clause blocked coverage for damage to the home caused by wind and flood. Clarke v. Travco Ins. Co., 2015 U.S. Dist. LEXIS 104267 (S.D.N.Y. Aug. 7, 2015).
The insured's home was located about twenty feet from the Hudson River. Hurricane Sandy caused the river to rise, creating damage to the insured's home. The insured did not have flood insurance. During the storm, water flooded the lower level of the house to a level of about four feet. Further, a wooden dock from another property, approximately fifteen feet by ten feet, entered the property and came to rest within the lower level.
The insured submitted a claim under his homeowner's policy to Travco Insurance Company. An investigator concluded that the cause of damage to the home was flood/water. The claim was denied.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Burden of Proof Under All-Risk Property Insurance Policy
January 31, 2018 —
David Adelstein - Florida Construction Legal UpdatesA recent Florida case, Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) discusses the burden of proof of an insured in establishing coverage under an all-risk property insurance policy. Getting right to this critical point, the court explained the burden of proof as follows:
1. The insured has the initial burden of proof to establish that the damage at issue occurred during a period in which the damaged property had insurance coverage. If the insured fails to meet this burden, judgment shall be entered in favor of the insurer.
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2. If the insured’s initial burden is met, the burden of proof shifts to the insurer to establish that (a) there was a sole cause of the loss, or (b) in cases where there was more than one cause, there was an “efficient proximate cause” of the loss.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
L.A. Mixes Grit With Glitz in Downtown Revamp: Cities
May 13, 2014 —
James Nash and Nadja Brandt – BloombergNear streets so gritty they were used as the backdrop for a shootout in the next “Fast & Furious” movie, million-dollar condos and $38 racks of lamb beckon the urban pioneers of Los Angeles.
The rehab of warehouses and factories in the Arts District is the latest wave in a revival transforming the core of the second-largest U.S. city. Since 2011, about $7 billion has been poured into downtown. A decade ago its most prominent residents were the homeless. Now condos sell for a median of $523.36 a square foot -- more than in Beverly Hills. Alma, Bon Appetit magazine’s best new U.S. restaurant in 2013, is a few blocks from the convention center the city plans to renovate.
“All of a sudden, overnight, you have more cranes going up in downtown L.A. than any other neighborhood in Southern California, by far,” said Lew Horne, head of the regional CBRE Real Estate Group Inc. (CBG) office.
Mr. Nash may be contacted at jnash24@bloomberg.net; Ms. Brandt may be contacted at nbrandt@bloomberg.net
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James Nash and Nadja Brandt, Bloomberg
Cherokee Nation Wins Summary Judgment in COVID-19 Business Interruption Claim
February 01, 2021 —
Sergio F. Oehninger, Geoffrey B. Fehling & Matt Revis - Hunton Insurance Recovery BlogIn a resounding victory for policyholders, an Oklahoma state court granted partial summary judgment for the Cherokee Nation in its COVID-19 business interruption claim. The Cherokee Nation is seeking coverage for losses caused by the pandemic—specifically, the inability to use numerous tribal businesses and services for their intended purpose.
Based on the “all risks” nature of the policy and the fortuitous nature of its loss, the Cherokee Nation sought a partial summary judgment ruling that the policies afford business interruption coverage for COVID-19-related losses. The policy provided coverage for “all risk of direct physical loss or damage,” which the Cherokee Nation contended was triggered when the property was “rendered unusable for its intended purpose.” In support of this view, and consistent with established insurance policy interpretation principles, such as providing meaning to every term and reading the policy as a whole, the Cherokee Nation argued that a distinction must exist between “physical loss” and “physical damage.” This distinction demands an interpretation supporting the “intended purpose” reading of the policy language. Thus, the physical presence of COVID-19 depriving the Cherokee Nation of the use of covered property for its intended purpose triggered a covered loss.
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth,
Geoffrey B. Fehling, Hunton Andrews Kurth and
Matt Revis, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
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