Insurer’s Optional Appeals Process Does Not Toll Statute of Limitations Following Unequivocal Written Denial
September 22, 2016 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Vishva Dev, M.D., Inc. v. Blue Shield of Cal. (No. B270094, filed 8/31/16), a California appeals court confirmed that the unequivocal denial of a claim, in whole or in part, commences the running of the statute of limitations for suit on the claim, notwithstanding the insurer’s offer to reconsider on new or additional evidence.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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BHA at The Basic Course in Texas Construction Law
October 21, 2015 —
CDJ STAFFBert L. Howe & Associates, Inc., (BHA) is proud to be partnering with the State Bar of Texas, Construction Law Section, as a sponsor and exhibitor at The Basic Course in Texas Construction Law to be held November 12 & 13, 2015 at The Westin Austin at The Domain.
With offices in San Antonio and Houston, Bert L. Howe & Associates, Inc., offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in over 5,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and subcontractors.
BHA’s experience covers the full range of construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA also specializes in coverage, exposure, premises liability and delay claim analysis.
As the dynamic litigation climate in Texas continues to change, and as the number of construction defect and other construction-related cases continues to rise and become more sophisticated, it is more important than ever for contractors and builders to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed.
Since 1993, Bert L. Howe & Associates, Inc., has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, in Texas and across the Western United States.
Register for the Basic Course...
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The Importance of a Notice of Completion to Contractors, Subcontractors and Suppliers
August 12, 2024 —
William L. Porter - Porter Law GroupThe recording of a valid “Notice of Completion” with the County Recorder is an event of significance to owners, contractors, subcontractors and suppliers alike. The recording of a Notice of Completion is one of several methods used to trigger the time period for the recording of mechanics liens and service of stop payment notices. Although the recording of a Notice of Completion is not absolutely required on any given project, all those working in the construction industry should understand its significance.
When a valid Notice of Completion has not been recorded in relation to a construction project, a contractor, subcontractor, or supplier might from ninety to one hundred fifty days after completion of the project to record a mechanics lien or serve a stop payment notice to secure payment for their services on the project, depending on the facts. However, if a valid Notice of Completion is recorded, then the deadline under most circumstances accelerates and subcontractors and suppliers must record a mechanics lien or serve a stop payment notice within only thirty days thereafter. Under the same circumstances, a prime contractor has only sixty days after the recording of a valid Notice of Completion to record a mechanics’ lien. Failure to meet these deadlines often results in loss of the right to a mechanics lien or stop payment notice. There are limited exceptions to these general deadlines, depending on the facts. If you believe you may have missed an important deadline to seek collection of a construction debt, you should consult with a construction attorney immediately to secure your avenues of collection, including the mechanics lien and stop payment notice remedies, if still available.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
A Look at Trending Legislative Changes Impacting Workers' Comp
February 26, 2024 —
Rosanna Shamash - Construction ExecutiveThe tides are shifting in the construction industry when it comes to legal matters—and business owners could feel the brunt of it.
Recent legislative changes in the state of New York could signal how workers’ compensation cases move forward across the country and impact business owners in the space. Arguably, New York has historically laid the groundwork for workers’ compensation law in numerous other states. Now, we’re seeing a clear shift in favor of workers with some of the recent legislative changes. Owners, operators and executives in the construction space have increasingly found themselves facing costly claims that in years prior carried a smaller dollar value and were largely viewed as inconsequential.
So, what’s the best way for business owners in the construction industry to protect their businesses for the future? Start by gaining a basic understanding of changes in the legal landscape, by securing defense attorneys who know the construction space and by taking steps to protect your business before an incident happens.
Reprinted courtesy of
Rosanna Shamash, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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ASCE Statement on Senate Passage of the Water Resources Development Act of 2024
August 12, 2024 —
Marsia Geldert-Murphey, President of the American Society of Civil EngineersWASHINGTON — The
American Society of Civil Engineers (ASCE) commends the Senate for passing S. 4367, the Thomas R. Carper Water Resources Development Act (WRDA) of 2024. Both the House and Senate versions of WRDA will help improve America's ports and inland waterways, enhance flood risk management and storm risk reduction programs, and prioritize ecosystem restoration. ASCE now urges Congress to swiftly conference and pass a final WRDA bill in the upcoming months.
The Senate version of WRDA includes key provisions that will help ensure the ongoing operation of America's inland waterways systems, which received a 'D+' on the
2021 Report Card for America's Infrastructure, including adjustments to the cost share requirements for rehabilitation projects that receive funding the Inland Waterways Trust Fund (IWTF). These changes will ensure the IWTF remains available for future projects to help reduce the backlog of inland waterways projects. This bill also creates a Levee Owners Advisory Board, which has the potential to improve communication between the U.S. Army Corps of Engineers, other federal agencies, and levee owners and operators.
Now that the House and Senate have passed their versions of WRDA, we encourage lawmakers to include several provisions included in the House version in their final conference bill. This includes the reauthorization of the National Dam Safety Program through 2028, provisions that reduce restrictions on the amount of funds states can receive in National Dam Safety Program State Assistance Grants; improves access to the High Hazard Potential Dam Rehabilitation Grant Program; and requires the incorporation of low-head dams into the National Inventory of Dams, and an extension of the National Levee Safety program through 2033.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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General Contractor’s Professional Malpractice/Negligence Claim Against Design Professional
November 30, 2017 —
David Adelstein - Florida Construction Legal UpdatesA recent case supports a professional malpractice (negligence) claim by a general contractor against a design professional by reversing a trial court’s entry of summary judgment in favor of the design professional and finding a question of fact remained as to an architect’s role in the renovation of a public construction project. By the appellate court finding that a question of fact remained, the appellate court was finding that it was a triable issue, which is exactly what the general contractor wanted in this case. Getting this issue and the facts to the jury is the leverage the general contractor presumably wanted.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Massachusetts District Court Holds Contractors Are Not Additional Insureds on Developer’s Builder’s Risk Policy
August 31, 2020 —
Gus Sara - The Subrogation StrategistIn Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020 U.S. Dist. LEXIS 95403 (Skanska), the United States District Court for the District of Massachusetts considered whether contractors on a construction job were additional insureds on the developer’s builder’s risk insurance policy. After a water loss occurred during construction, the builder’s risk insurance carrier paid its named insured for the resultant damage, and subsequently filed a subrogation action against two contractors. The defendants filed a motion for summary judgment, claiming that the anti-subrogation rule barred the carrier from subrogating against them because they were additional insureds on the policy. The court found that based on the particular language of the additional insured provision in the policy, the defendants were not additional insureds for purposes of the subrogation action.
Skanska arose from property damage that occurred during a construction project where Novartis Corporation (Novartis) endeavored to construct a biomedical research building in Cambridge, Massachusetts and retained Skanska USA Building, Inc. (Skanska) as the general contractor. In turn, Skanksa hired J.C. Cannistraro, LLC (JCC) as a subcontractor. Novartis secured a builder’s risk insurance policy from Factory Mutual Insurance Company (Factory Mutual). The policy defined “Insured” as Novartis and its subsidiaries, partnerships and joint ventures that it controlled or owned. The policy included another provision, titled “Property Damage,” which stated that the policy “insures the interest of contractors and subcontractors in insured property… to the extent of the Insured’s legal liability for insured physical loss or damage to such property.”
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Re-Thinking the One-Sided Contract: Considerations for a More Balanced Approach to Contracting
November 21, 2022 —
William Underwood - ConsensusDocsConstruction projects can be inherently risky – often there are multiple parties (owners, architects, engineers, contractors, subcontractors, consultants, vendors, government officials, sureties, insurers, and many others), unforeseen site conditions, tangled supply chains, acts of God, inadequate funding, site safety matters, and a whole host of other issues that can make even a relatively straight-forward job complex. Parties necessarily want to minimize their individual risk to the greatest extent possible on construction projects. And to do so, they may seek to push as much risk as possible onto the other side through one-sided terms in their construction contract.
But is an entirely one-sided contract the best way to mitigate risk? In many instances, the answer is no. Every contract is different – and many considerations should be taken into account when drafting and negotiating contracts – but entirely one-sided can often have unintended consequences and create risks that otherwise might not exist in a contract that allocates and balances risk more equally across the parties.
This article reviews several considerations (although it is not an exhaustive list) for avoiding one-sided contracts, including some of the benefits created through the use of equitable contract clauses. And for context, some examples of one-sided contract clauses include no relief for other contractor/owner-caused delays; no relief for force majeure events; no relief for unforeseen site conditions; and broad form indemnification clauses (i.e. one party assumes the obligation to pay for another party’s liability even if the other party is solely at fault). Again, this is a non-exhaustive list, and many other standard contract provisions can be altered to become one-sided. But the general premise of a “one-sided contract clause” is that it shifts all risk, obligation, and liability to one party. And this article examines why that might not be the best idea.
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William Underwood, Jones Walker LLPMr. Underwood may be contacted at
wunderwood@joneswalker.com
