BWB&O is Recognized in the 2024 Edition of Best Law Firms®!
November 16, 2023 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is honored to announce the firm has been recognized for its fourth consecutive year in the 2024 edition of Best Law Firms® and is ranked by Best Lawyers® regionally in three practice areas. To read the publication, please click
here.
Regional Tier 1
Las Vegas: Litigation – Construction
Orange County: Litigation – Construction
Regional Tier 2
Orange County: Family Law
Regional Tier 3
Orange County: Commercial Litigation
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Bremer Whyte Brown & O'Meara LLP
Poor Pleading Leads to Loss of Claim for Trespass Due to Relation-Back Doctrine, Statute of Limitations
April 13, 2017 —
Brett G. Moore & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Scholes v. Lambirth Trucking Co. (No. C070770, Filed 4/6/2017), the California Court of Appeal for the Third Appellate District held that the relation-back doctrine could not save a property owner’s trespass claim against an adjacent neighbor where the property owner’s original complaint was factually devoid and was later amended to include the trespass claim after the statute of limitations had run.
The relation-back doctrine is a well-settled legal principle which allows a plaintiff to amend a complaint to add a cause of action which would otherwise be barred by the statute of limitations. As long as the factual allegations “relate back” to the those alleged in the original complaint, an additional cause of action will not be subject to the applicable statute of limitations. The policy behind statutes of limitation is to put a defendant on notice of the need to defend against a claim in time to prepare an adequate defense.
On May 21, 2007, a fire broke out at defendant Lambirth Trucking Company’s (“Lambirth”) soil enhancement facility adjacent to plaintiff Vincent Scholes’ (“Scholes”) property. Scholes had previously notified Lambirth that wood chips and rice hulls were accumulating on his property as a result of Lambirth’s operations. Local authorities also warned Lambirth of the hazards presented by storage of those materials.
Reprinted courtesy of
Brett G. Moore, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Moore may be contacted at bmoore@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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NAHB Speaks Out Against the Clean Water Act Expansion
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFThe National Association of Home Builders (NAHB) published a news release that declared that the Environmental Protection Agency’s (EPA) proposal to expand the Clean Water Act “goes too far.” The EPA’s proposed expansion of the act would “increase the cost of new homes without a corresponding benefit to America’s lakes, rivers and other water bodies,” NAHB alleged.
Kevin Kelly, NAHB president and a home builder and developer from Wilmington, Del., stated that the “EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ – even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark. It’s a waste of taxpayer resources to treat a rainwater ditch with the same scrutiny as we would the Delaware Bay.”
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Newmeyer Dillion Secures Victory For Crown Castle In Years-Long Litigation With City Council Of Piedmont Over Small Cell Wireless Telecommunications Sites
December 30, 2019 —
Newmeyer DillionNewmeyer Dillion, a prominent business and real estate law firm, is pleased to announce that, on November 18, 2019, the City Council of the City of Piedmont unanimously voted to approve the installation of 17 small cell wireless telecommunications sites by Newmeyer Dillion client Crown Castle NG West LLC, the leading provider of shared communications infrastructure in the United States. This victory ends a long-running legal dispute over Crown Castle's small cell wireless network, which was vehemently opposed by Piedmont residents and previously rejected by the City Council, prompting Newmeyer Dillion to bring a lawsuit against the city in 2017.
The dispute began in 2016 when Crown Castle filed an application with the City Council of the City of Piedmont to build nine small cell wireless sites designed to provide critical wireless telecommunications coverage in Piedmont. In October 2017, the Council denied the network, rejecting some of the proposed sites or approving others with onerous conditions.
Newmeyer Dillion's Government, Land Use and Environmental practice group filed a lawsuit on behalf of Crown Castle in the United States District Court for the Northern District of California in November 2017, challenging the Council's decision. Drawing from the language established in the Telecommunications Act of 1996, the lawsuit alleged that Piedmont's ordinances established an unreasonably high bar of approval, unlawfully prohibiting telecommunications services in the city.
The city quickly requested a court-supervised settlement, which was approved by the City Council in December 2018 and allowed Crown Castle to reapply to build 17 small cell wireless telecommunications facilities. The unanimous City Council approval came after extensive mediation work between the two parties.
"We are excited that our years-long efforts have culminated in this major win for Crown Castle, allowing them to build out critical telecommunications infrastructure in the City of Piedmont," said Michael Shonafelt, partner at Newmeyer Dillion. "With the growing national need for robust telecommunications networks that can handle voice communication and modern data demands, approvals such as this are significant, not just for the community the network serves, but for the viability of the national telecommunications network as a whole. Our team is proud to be using our multidisciplinary, business-oriented approach to successfully advise clients navigating these issues."
About Newmeyer Dillion
For 35 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 corporate, privacy & data security, employment, real estate, construction, insurance law and trial work, 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.newmeyerdillion.com.
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High-Rise Condominium Construction Design Defects, A Maryland Construction Lawyer’s Perspective
July 15, 2015 —
Nicholas D. Cowie – Maryland Condo Construction Defect Law BlogThe increased migration from suburbs to metropolitan areas has accompanied an increase in high-rise construction, including the development of high-rise condominium buildings. The resulting metamorphosis of urban skylines, such as seen from Maryland’s Baltimore harbor, has also brought with it many complex construction law and construction litigation issues. Our law firm’s Maryland condominium construction law practice is increasingly called upon to resolve disputes involving high-rise condominium construction design defects between condominium associations, developers, contractors, builders, and design professionals arising out of the construction of high-rise buildings.
A condominium building is typically considered to be a high-rise when it is approximately seven or more stories above grade according to the National Fire Protection Association Life Safety Code, which defines a high-rise as being 75 feet (23 meters) measured from the lowest level accessible to fire department vehicles up to the floor level of the highest occupiable story. High-rise buildings may be residential (e.g., condominiums or multifamily apartment buildings), commercial (e.g., commercial office or retail space), or mixed-use structures. A mixed-use high-rise development might contain retail space, office space, a parking garage, apartments, and condominiums, each owned or maintained by separate entities and each sharing common expenses for the building.
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Nicholas D. Cowie, Cowie & Mott, P.A.Mr. Cowie may be contacted at
ndc@cowiemott.com
Insurer’s Discovery Requests Ruled to be Overbroad in Construction Defect Suit
October 28, 2011 —
CDJ STAFFThe US District Court has ruled in the case of D.R. Horton Los Angeles Holding Co. Inc. v. American Safety Indemnity, Co. D.R. Horton was involved in a real estate development project. Its subcontractor, Ebensteiner Co., was insured by ASIC and named D.R. Horton as an additional insured and third-party beneficiary. D.R. Horton, in response to legal complaints and cross-complaints, filed for coverage from ASIC under the Ebensteiner policy. This was refused by ASIC. ASIC claimed that “there is no potential coverage for Ebensteiner as a Named Insurer and/or D.R. Horton as an Additional Insured.” They stated that “the requirements for coverage are not satisfied.”
The case same to trial with the deadline for discovery set at March 1, 2011. ASIC stated they were seeking the developer’s “job file” for the Canyon Gate project. D.R. Horton claimed that ASIC’s discovery request was overbroad and that it would be “unduly burdensome for it to produce all documents responsive to the overbroad requests.”
D.R. Horton did agree to produce several categories of documents, which included:
“(1) final building inspection sign-offs for the homes that are the subject of the underlying litigation;(2) an updated homeowner matrix for the underlying actions; (3) the concrete subcontractor files; (4) the daily field logs for D.R. Horton’s on-site employee during Ebensteiner’s work; (5) documents relating to concrete work, including documents for concrete suppliers; (6) documents relating to compacting testing; (7) documents relating to grading; and (8) D.R. Horton’s request for proposal for grading”
The court found that the requests from ASIC were overbroad, noting that the language of the ASIC Request for Production of Documents (RFP) 3-5 would include “subcontractor files for plumbing, electric, flooring, etc. - none of these being at issue in the case.” The court denied the ASIC’s motion to compel further documents.
The court also found fault with ASIC’s RFPs 6 and 7. Here, D.R. Horton claimed the language was written so broadly it would require the production of sales information and, again, subcontractors not relevant to the case.
Further, the court found that RFPs 8, 10, 11, and 13 were also overbroad. RFP 8 covered all subcontractors. D.R. Horton replied that they had earlier complied with the documents covered in RFPs 10 and 11. The court concurred. RFP 13 was denied as it went beyond the scope of admissible evidence, even including attorney-client communication.
The court denied all of ASIC’s attempts to compel further discovery.
Read the court’s decision…
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NCDOT Aims to Reopen Helene-damaged Interstate 40 by New Year's Day
December 10, 2024 —
Derek Lacey - Engineering News-RecordInterstate 40, closed in late September when flooding from Hurricane Helene caused multiple landslides and washouts in the Pigeon River Gorge between North Carolina and Tennessee, is expected to partially reopen on New Year’s Day 2025, more than three months after the storm. Long-term reconstruction plans are still in early development.
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Derek Lacey, ENRMr. Lacey may be contacted at
laceyd@enr.com
Hawaii Supreme Court Says Aloha to Insurers Trying to Recoup Defense Costs From Policyholders
January 02, 2024 —
Lara Degenhart Cassidy & Yosef Itkin - Hunton Insurance Recovery BlogThe Hawaii Supreme Court emphatically rejected insurer efforts to seek reimbursement of defense costs absent a provision in the policy providing for such reimbursement in St. Paul Fire & Marine Insurance Company v. Bodell Construction Company, No. SCCQ-22-0000658, 2023 WL 7517083, (Haw. Nov. 14, 2023). The state high court’s well-reasoned decision rests on bedrock law regarding insurance policy construction and application, follows the nationwide trend of courts compelling insurers to satisfy their contractual obligations in full, and should carry great weight as other jurisdictions continue to debate the same issue.
In Bodell, the Hawaii Supreme Court joined the swelling ranks of courts recognizing that an insurer may not use a reservation of rights to create the extra-contractual “right” to recoup already paid defense costs for a claim on which the insurer ultimately owes no coverage. See, e.g., Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526 (Pa. 2010). Other jurisdictions, such as California, will permit an insurer to seek reimbursement from a policyholder for defense costs incurred in defending claims later determined to be uncovered. See Buss v. Superior Court, 16 Cal.4th 35 (1997) (holding insurers have a right to reimbursement of defense costs incurred for noncovered claims).
Reprinted courtesy of
Lara Degenhart Cassidy, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Ms. Cassidy may be contacted at lcassidy@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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