Waive Your Claim Goodbye: Louisiana Court Holds That AIA Subrogation Waiver Did Not Violate Anti-Indemnification Statute and Applied to Subcontractors
May 23, 2022 —
Gus Sara - The Subrogation StrategistIn 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Oregon Court of Appeals Rules That Negligent Construction (Construction Defect) Claims Are Subject to a Two-Year Statute of Limitations
October 20, 2016 —
John P. Ahlers – Ahlers & Cressman PLLCStatutes of limitations are distinct from statutes of repose. There is a lot of confusion between the two.
Generally, a statute of limitations is a law which sets the maximum period of time which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Most states also employ a “discovery rule,” which provides that the statute of limitations does not “accrue” until such time as the plaintiff knew or should have reasonably known that the injury or property damage has occurred.
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John P. Ahlers, Ahlers & Cressman, PLLCMr. Ahlers may be contacted at
jahlers@ac-lawyers.com
Suit Limitation Provision Upheld
March 04, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe policy's one year suit limitation provision was upheld, depriving insureds of benefits under the policy. Oswald v. South Central Mut. Ins. Co., 2018 Minn. App. Unpub. LEXIS 1077 (Dec. 24, 2018).
The Oswalds' hog barn burned down on June 21, 2016. Arson was a possible cause.
The Oswalds were insured under a combination policy issued by North Star Mutual Insurance Company and South Central Mutual Insurance Company. Central provided coverage for basic perils, broad perils, and limited perils, which included fire losses. The Central policy required property claims to be brought within one year after the loss. By endorsement, the North Star policy required suits be brought within two years after the loss. Presumably, the claims was denied, although the decision does not state this.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
November 15, 2017 —
Jeff Dennis & Ivo Daniele – Newmeyer & Dillion, LLPThe European Union (“EU”) has enacted a strict, comprehensive framework of security regulations aimed to protect its citizens. These regulations, known as the General Data Protection Regulation (“GDPR”), provide a blueprint for a combination of required legal, technological and work habits within an organization. Although this is an EU regulation, the new laws will apply to any organization within or outside the EU that collects or processes data of EU citizens. Therefore, U.S. companies must analyze their data and processes to determine whether compliance with the GDPR is necessary. A quickly-approaching deadline of May 25, 2018 must be met to avoid massive fines.
What is the GDPR?
In order to address the creation of social networking sites, cloud computing, and location-based services, the EU set in motion a process to implement a vigorous set of rules to ensure the right to personal data protection for all European citizens. In April 2016 the European Parliament, the Council, and the Commission adopted a new GDPR, which will take affect on May 25, 2018.
This GDPR will streamline cooperation between the data protection authorities on personal data issues allowing companies to deal with one authority - not each of the 28 EU member states. This will allow for quicker decisions by the data protection authorities and greatly reduce the red tape in both compliance and enforcement under the GDPR. This will also create a level playing field by forcing non-EU companies to comply with the same strict regulations - regardless of whether or not the company is established in the EU.
Territorial scope of the GDPR
The GDPR applies directly to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU - regardless of whether the processing takes place in the EU. Additionally, there are specific provisions under the GDPR that apply to non-EU companies if their processing activities relate to (a) the offering of goods or services (irrespective of whether a payment of the data subject is required) or (b) monitoring the behavior of individuals within the EU. Therefore, all companies must determine whether they process or monitor information of EU citizens. If a company falls within one of these categories, compliance with the GDPR is mandatory.
What happens if a company fails to comply with the GDPR?
Failure to comply with the GDPR could subject a company to crushing administrative fines.
The supervisory authority has the power to impose administrative fines under the GDPR. The following violations and breaches would subject a company to administrative fines:
- Not adhering to the core principles of processing personal data,
- Breach of notification to EU citizens by controllers and processors,
- Wrongful transfer of personal data to non-EU countries,
- Breach of obligations regarding certification,
- Ignoring the mandates asserted by the supervisory authority,
- Breach by those responsible for impact assessment, and
- Wrongful processing of employee data.
The extent of the violation and type of personal data involved will dictate the severity of the administrative fines imposed on a company. For example, under the GDPR, a company could be subject to administrative fines up to 20,000,000 EUR, or up to 4% of the total worldwide annual revenue of the preceding financial year. Obviously, these fines would be financially crippling to any company.
Preparing for May 25, 2018
The May 25, 2018 deadline is fast approaching and preparing for full compliance with the GDPR is paramount. Simple steps should be taken to ensure compliance including to:
(1) Review and analyze data repositories for sensitive data,
(2) Perform an analysis/accounting of procedure for data collection, and
(3) Create an oversite committee dedicated to data activities and compliance.
Most importantly, however, is to determine whether compliance with the GDPR is necessary, and strictly follow the requirements of the GDPR to protect from potentially massive fines.
Jeffrey M. Dennis currently serves as Newmeyer & Dillion’s Managing Partner and as a business leader, advises his clients on cybersecurity related issues, introducing contractual and insurance opportunities to lessen their risk. You can reach Jeff at jeff.dennis@ndlf.com.
Ivo Daniele is a seasoned associate in Newmeyer & Dillion’s Walnut Creek office. His practice includes representing private and public companies with both their transactional and litigation needs. You can reach Ivo at ivo.daniele@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
Homeowner Sues Brick Manufacturer for Spalling Bricks
October 22, 2013 —
CDJ STAFFA Columbia, South Carolina homeowner has sued Kinney Brick Co., alleging that the bricks used in his home were defective and are now crumbling. The lawsuit alleges that the manufacturer and the distributor were both aware that the bricks would retain moisture and crumble.
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The Requirement to Post Collateral Under General Agreement of Indemnity Is Real
May 16, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn prior postings, I have discussed the all-powerful General Agreement of Indemnity (click
here and
here). This is the document a bond-principal executes to obtain bonds (e.g., performance and payment bonds). Not only does the bond-principal execute this General Agreement of Indemnity, but typically, so do other indemnitors such as the company’s principals and their spouses, other related companies, etc. The objective is that the surety has financial comfort that if a claim is made against the bond, there are avenues where it will get reimbursed and indemnified for any cost it incurs, or payment it makes, relative to that claim against the bond. When a surety issues bonds, the objective is that all losses it incurs gets reimbursed because the bonds are NOT insurance policies.
One of the powerful tools the surety can exercise in the General Agreement of Indemnity is to demand the bond-principal and other indemnitors to post collateral in an amount the surety deems sufficient to cover any losses it may incur. This is a right in any General Agreement of Indemnity I have seen and is a right the surety can rightfully exercise.
A recent example is shown from the opinion in Philadelphia Indemnity Ins. Co. v. Quinco Electrical, Inc., 2022 WL 1230110 (M.D.Fla. 2022), which pertains to the surety’s motion for preliminary injunction.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Fraud, the VCPA and Construction Contracts
November 26, 2014 —
Christopher G. Hill – Construction Law MusingsI’ve discussed the economic loss rule here at Musings on several occasions. The economic loss rule basically states that where one party assumes a duty based in contract or agreement, the Virginia courts will not allow a claim for breach of that duty to go forward as anything but a contract claim. This doctrine makes fraud claims nearly, though not absolutely, impossible to maintain in a construction context. In a majority of instances, fraud and construction contracts are very much like oil and water, leaving parties to fight it out over the terms of a particular contract despite actions by one party or the other that non-lawyers would clearly see as fraud.
However, a recent case decided by the Virginia Supreme Court gives at least some hope to those who are seemingly fooled into entering a contract that they would not other wise have entered into. In Philip Abi-Najm, et. al, v Concord Condominium, LLC, several condominium purchasers sued Concord under for breach of contract, breach of the Virginia Consumer Protection Act (VCPA) and for fraud in the inducement based upon flooring that Concord installed that was far from the quality stated in the purchase contract. Based upon these facts, the Court looked at two questions: 1. Did a statement in the contract between Concord and the condo buyers create a situation in which the merger doctrine barred the breach of contract claim, and 2. Did the economic loss rule bar the VCPA and fraud claims?
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Meet D1's Neutrals Series: KENNETH FLOREY
June 12, 2023 —
Marissa L. Downs - The Dispute ResolverCompany: Robbins Schwartz
Office Location: Chicago, IL
Email: kflorey@robbins-schwartz.com
Website: https://www.rsnlt.com/attorneys/kenneth-m-florey/
Law School: DePaul University (JD 1992)
Types of ADR services offered: Mediation, Arbitration, Project Neutral
Affiliated ADR organizations: AAA Panel of Arbitrators and Mediators
Geographic area served: Nationwide
Q: Describe the path you took to becoming an ADR neutral.
A: I’ve been involved in construction litigation my entire career as an attorney, going on 30 years. After being an advocate for all sides to these disputes (owners, contractors, and design professionals), I recognize the immense value of ADR to clients and decided to start shifting my litigation experience and skills to the neutral realm as an arbitrator and mediator.
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Marissa L. Downs, Laurie & Brennan, LLPMs. Downs may be contacted at
mdowns@lauriebrennan.com
