“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint
January 13, 2020 —
Rahul Gogineni - The Subrogation StrategistIn Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party.
In Barrett, after sustaining injuries while working at a refinery, David Barrett (Barrett) filed suit against Berry Contracting, LP and Elite Piping & Civil, Ltd. on July 6, 2016. In Barrett’s first amended complaint, which he filed on August 23, 2016, Barrett added Govind Development, LLC (Govind) as another defendant. Barrett subsequently filed a second amended complaint (omitting Govind) and, on December 27, 2017, shortly before the statute of limitations ran, a third amended complaint (reasserting claims against Govind). On January 28, 2018, after the statute of limitations period ran, Barrett filed a certificate of merit. Govind filed a motion to dismiss the claim, asserting that Barrett violated the statute that required a certificate of merit to be filed with the complaint, Tex. Civ. Prac & Rem. Code §150.002.
Tex. Civ. Prac. & Rem. Code §150.002(a) states,
In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect or registered professional land surveyor…
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
California Supreme Court Holds that Requirement of Prejudice for Late Notice Defense is a Fundamental Public Policy of the State for Choice of Law Analysis
November 04, 2019 —
Lorelie S. Masters, Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery BlogCalifornia’s highest court held yesterday in Pitzer College v. Indian Harbor Insurance Co., that the state’s insurance notice-prejudice rule is a “fundamental public policy” for the purpose of choice of law analyses. This unanimous ruling, issued in response to certified questions from the Ninth Circuit, confirms and emphasizes California’s common law rule that policyholders who provide “late notice” may proceed with their insurance claim, absent a showing by the insurer of substantial prejudice. The California Supreme Court also extended the prejudice requirement, holding that a first-party insurer must show that it was prejudiced before denying coverage under a policy’s “consent provision,” which typically provides that the policyholder must obtain the insurer’s “consent” before incurring costs and expenses.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lorelie S. Masters,
Michael S. Levine and
Michelle M. Spatz
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Spatz may be contacted at mspatz@HuntonAK.com
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Construction Group Seeks Defense Coverage for Hard Rock Stadium Claims
December 09, 2019 —
Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery BlogIn an insurance coverage action pending in the S.D.N.Y., Hunt Construction Group (Hunt) contends that Berkley Assurance Company wrongfully denied defense coverage for claims arising out of the renovation of Hard Rock Stadium (home to the Miami Dolphins and Miami Hurricanes football teams).
The stadium owner, South Florida Stadium LLC (SFS), hired Hunt to serve as the construction manager for the renovation project. Hunt subcontracted with Alberici Constructors Inc. (Alberici) to design and fabricate roof structures for the stadium.
Hunt and SFS sued Alberici over its work on the project. In March 2017, Alberici asserted counterclaims against Hunt and SFS. In May 2018, SFS sought defense and indemnification from Hunt with respect to Alberici’s coverage claims.
Hunt is insured under claims made and reported professional liability insurance policies issued by Berkley with policy periods from June 15, 2016 to June 15, 2017 (with an automatic extended reporting period through August 14, 2017) and from July 15, 2017 to June 15, 2018. Hunt notified Berkley of Alberici’s counterclaim on July 20, 2017 (within the extended reporting period of the 2016-2017 policy) and of SFS’s indemnity claim on June 5, 2018 (within the 2017-2018 policy period).
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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Maria Latest Threat to Puerto Rico After $1 Billion Irma Hit
September 20, 2017 —
Brian K. Sullivan & Ezra Fieser - BloombergHurricane Maria was on course to hit Puerto Rico just two weeks after Irma caused as much as $1 billion in damages on the bankrupt island.
Maria’s top winds were at 155 miles (250 kilometers) an hour, the National Hurricane Center said in a notice around 6 a.m. New York time. At Category 5, the strongest classification on the five-step Saffir-Simpson scale, Maria was about 35 miles southeast of San Juan in Puerto Rico.
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Brian K. Sullivan, Bloomberg and
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Tom Newmeyer Elected Director At Large to the 2017 Orange County Bar Association Board of Directors
October 20, 2016 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – OCTOBER 17, 2016 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that co-founding partner Tom Newmeyer has been elected Director at Large to the 2017 Orange County Bar Association Board of Directors. Newmeyer was elected to the Board for a three-year term beginning January 2017 and will be installed during the OCBA Judges’ Night & Annual Meeting in January along with the 2017 Officers and other Board members.
“It’s an honor to be selected by my fellow OCBA members to represent their interests as a Board member,” said Tom Newmeyer. “As Director at Large, I will do my utmost to preserve and enhance the OCBA’s commitment to the members it serves.”
Tom Newmeyer is one of the founding partners of Newmeyer and Dillion LLP, which has grown from three attorneys in 1984 to over 70 lawyers in Newport Beach and Walnut Creek, California and Las Vegas, Nevada. Newmeyer has an active trial and appellate practice covering all areas of business litigation, including unfair competition, trade secrets, contract disputes, corporate and partnership dissolutions, trusts and estates, and labor and employment. He has extensive experience in representing clients in diverse areas including “green” technologies, subprime mortgages, internet and computer software, as well as real estate.
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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COVID-19 Response: Key Legal Considerations for Event Cancellations
March 30, 2020 —
Michael G. Platner, Solomon B. Zoberman, & Jane C. Luxton - Lewis BrisboisEvery passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. Cancellation fees can be breathtaking, and affected parties are quickly learning that there are no simple answers as to whether a disease outbreak of this scope and scale falls within force majeure (or Act of God) clauses that either do not explicitly list, or arguably may never have contemplated, circumstances of this type.
Generally, force majeure clauses excuse parties’ performance under a contract when circumstances that are beyond their control arise and prevent them from fulfilling their obligations. The party electing to enforce its rights under the force majeure clause must show that the triggering event qualifies as a force majeure event, and that the event has rendered the party’s performance impossible or impracticable.
Reprinted courtesy of Lewis Brisbois attorneys
Michael G. Platner,
Solomon B. Zoberman and
Jane C. Luxton
Mr. Platner may be contacted at Michael.Platner@lewisbrisbois.com
Mr. Zoberman may be contacted at Solomon.Zoberman@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
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What Contractors Can Do to Address Rising Material Costs
August 23, 2021 —
Garret Murai - California Construction Law BlogFrom lumber to used cars to pastrami sandwiches, prices are rising. This past month, at a town hall meeting in Cincinnati, Ohio, President Biden acknowledged that inflation was increasing, responding to a question from a restaurant owner about labor shortages, “I think your business and the tourist business is really going to be in a bind for a little while.”
Although construction companies typically don’t work in the same small margins that restaurants do, labor shortages and material price increases have nevertheless impacted the construction industry. According to a recent report by Cumming, the cost of construction materials from lumber to steel to gypsum have gone up over the last 12 months, in some cases nearly double:
For contractors entering into construction contracts and those performing work under existing contracts, the increasing cost of materials and shortage of labor creates challenges, some of which can be addressed through contractual provisions and the framework of those contracts.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021
March 01, 2021 —
Emily K. Bias & Josh D. Morton - Gravel2Gavel Construction & Real Estate BlogThe “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” is a document jointly promulgated by the American Land Title Association (ALTA), representing the title insurance industry, and the National Society of Professional Surveyors (NSPS), representing professional land surveyors, which describes the uniform minimum standards with which surveyors must comply when preparing a survey to be used by a title insurance company for the purpose of deleting the general survey exception from ALTA title policy forms. The first such set of standards was developed in 1962 and has since been revised 10 times. The standards are currently updated every five years and are relied on by real estate professionals, including purchasers, lenders, title insurers and their attorneys, nationwide. In October 2020, a joint committee comprising representatives of both ALTA and NSPS adopted the “2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” which will become effective on February 23, 2021. The significant changes between the 2021 standards and the previous 2016 standards are summarized below.
Survey Matters
The 2021 standards clarify that only survey-related matters must be summarized on the survey. This revision was intended to foreclose a practice common among some institutional lenders to require that the survey list all items shown in Schedule BII of the title commitment on the face of the survey regardless of whether those items may in fact be survey related. The 2021 standards also add a requirement that the surveyor include a note specifying whether the location of a right of way, easement or other survey-related matter is shown on the survey. This change incorporates common lender and purchaser requirements that were not previously enumerated in the survey standards.
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Emily K. Bias, Pillsbury and
Josh D. Morton, Pillsbury
Ms. Bias may be contacted at emily.bias@pillsburylaw.com
Mr. Morton may be contacted at josh.morton@pillsburylaw.com
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