The Anatomy of a Construction Dispute Stage 2- Increase the Heat
January 21, 2015 —
Christopher G. Hill – Construction Law MusingsLast week we discussed the groundwork and circumstances of a construction claim. This week’s post will discuss the next steps, hopefully short of full blown arbitration or litigation that you, as a construction company, can pursue presuming your claim has been properly preserved.
If your contract requires certain steps such as informal resolution attempts or other items, these are the first things that must be done while still preserving your rights to pursue all remedies available. Instituting such contractually required resolution steps can and should be the first “notch” on the dial of increased pressure on the Owner, General Contractor or possibly Subcontractor against whom you have a claim.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions
April 18, 2023 —
David Adelstein - Florida Construction Legal UpdatesA new insurance coverage opinion dealing with a commercial general liability’s (CGL) duty to defend involved exclusions commonly known as the (j)(6) and (j)(7) property damage exclusions (and in certain policies known as the (j)(5) and (j)(6) exclusions). These are the exclusions that apply during ongoing operations. Exclusion (l), or the “your work” exclusion, applies post-completion, i.e., it is an exclusion for “property damage” to “your work” included in the “products-completed operations hazard.”
Exclusions (j)(6) and (j)(7) in the policy at-issue exclude coverage for property damage to:
(j)(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations;
(j)(7) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Disappearing Data: Avoid Losing Electronic Information to Avoid Losing the Case
February 01, 2022 —
Daniel C. Wennogle & Jennifer Knight Lang - Construction ExecutiveIt happens: A contractor on a delayed project ends up in litigation over liquidated damages, but the key communications regarding delays and approvals were sent and received by the project manager on a mobile device using text messages and personal email accounts. Unfortunately, the project manager left the company a year ago on bad terms and has changed phones. The information that would serve to mitigate the contractor’s liability has disappeared. With better awareness and policies for capturing and managing electronic information, this is avoidable.
Proactive and effective management of electronically stored information on construction projects can not only reduce costs and discovery disputes should litigation arise but can also provide critical evidence in reducing liability exposure in such disputes. The Federal Rules of Civil Procedure (as well as most state rules, which often mirror federal rules), provide for sanctions if a party fails to preserve electronically stored information (ESI) that should have been preserved in anticipation of litigation but is lost due to the failure to take reasonable steps to preserve it.
Even in arbitration, where discovery and disclosure obligations are often more limited than in the court setting, preservation of ESI can help strengthen claims and defenses, avoiding accusations of spoliation that can derail a case. Arbitrators can also fashion appropriate sanctions for destruction of relevant evidence, not to mention the impact that apparent spoliation can have on a party’s credibility.
Reprinted courtesy of
Daniel C. Wennogle & Jennifer Knight Lang, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Ms. Lang may be contacted at jennifer.lang@moyewhite.com
Mr. Wennogle may be contacted at daniel.wennogle@moyewhite.com
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Governor Signs AB5 Into Law — Reshaping California's Independent Contractor Classification Landscape
December 02, 2019 —
Eric C. Sohlgren & Matthew C. Lewis - Payne & Fears Legal AlertToday, Governor Gavin Newsom signed California Assembly Bill 5 (“AB5”), controversial legislation which will have a substantial impact on California employers when it goes into effect on January 1, 2020.
AB5 enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Under the ABC test established in Dynamex and now under AB5, a worker may be properly considered an independent contractor only if the hiring entity establishes all three of the following: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Reprinted courtesy of
Eric C. Sohlgren, Payne & Fears and
Matthew C. Lewis, Payne & Fears
Mr. Sohlgren may be contacted at ecs@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
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Insurance Policy’s “No Voluntary Payment” Clauses Lose Some Bite in Colorado
October 22, 2013 —
Brady Iandiorio — Higgins, Hopkins, McLain & Roswell, LLC.The Colorado Court of Appeals recently handed down an opinion dulling the teeth of the “no voluntary payment” clauses found in many contractors’ insurance policies. In the case of Stresscon Corporation v. Travelers Property Casualty Company of America, 2013 WL 4874352 (Colo. App. 2013), the Court of Appeals found that an insured’s breach of the “no voluntary payment” clause does not always bar the insured from receiving benefits from its insurance company.
In July 2007, at a construction project run by Mortenson (the “GC”), a partially erected building collapsed, killing one worker and gravely injuring another. The collapse was caused by a crane hook pulling a concrete component off of its supports. The GC contracted with Stresscon Corporation (“Stresscon”) to build pre-cast concrete components for the project, and in turn Stresscon hired two sub-subcontractors, RMS and Hardrock (the “Crane Team”) to work together to erect those concrete components. Stresscon and the Crane Team had liability insurance, and Stresscon was insured by Travelers Property Casualty Company of America (“Travelers”).
The accident led to three separate lawsuits: 1) one brought by the deceased worker; 2) one brought by the injured worker; and 3) one brought by the GC against Stresscon claiming it was entitled to contract damages incurred because the project was delayed.
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Brady IandiorioBrady Iandiorio can be contacted at
Iandiorio@hhmrlaw.com
No Collapse Coverage Where Policy's Collapse Provisions Deleted
July 26, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found there was no coverage for the homeowners' collapse claim because the collapse provisions were deleted from the policy. Gueng-Ho Kim v. State Farm Fire & Cas. Co., 2017 U.S. Dist. LEXIS 97871 (D. Conn. June 26, 2017).
The homeowners purchased their home in 2004. They also purchased a homeowners policy from State Farm. In the policy, State Farm deleted the additional coverage for collapse.Also deleted from the policy was language excluding coverage for "collapse, except as specifically provided in Section I - Additional Coverages, Collapse."
The homeowners discovered a problem with the property's foundation when they attempted to sell the house in 2014. The homeowners hired an engineer who found that the interior and exterior foundation had numerous spider-web cracks and the foundation walls in several locations bowed inward by as much as one and a half inches.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Reaffirming the Importance of Appeal Deadlines Under the Contract Disputes Act
January 26, 2017 —
Chadd Reynolds – Autry, Hanrahan, Hall & Cook, LLPA recent United States Court of Federal Claims (“COFC”) decision emphasizes the importance of deadlines for appealing a contracting officer’s (“CO”) decision under the Contract Disputes Act (“CDA”). On July 22, 2016, the COFC granted the consolidation of two naval contract dispute appeals totaling nearly $12.4 million in response to Nova Group/Tutor-Saliba’s (“NTS”) motion to resolve two Requests for Equitable Adjustment (“REA”) in the same forum. See Nova Group/Tutor-Saliba v. United States, No. 15-885C, 2016 WL 4009886, at *5 (Fed. Cl. July 22, 2016). NTS’s motion before the COFC sought to transfer an appeal of a REA before the COFC to the Armed Services Board of Contract Appeals (“ASBCA”), where another appeal of a REA arising under the same contract was presently on appeal. The COFC rejected NTS’s appeal to transfer the REA to the ASBCA because NTS did not appeal the REA within the 90-day limit under the CDA. Instead, the COFC allowed NTS to transfer the REA before the ASBCA to the COFC because timeliness was not an issue.
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Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.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