COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

NJ Transit’s Superstorm Sandy Coverage Victory Highlights Complexities of Underwriting Property Insurance Towers

February 24, 2020 — Traub Lieberman
In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s, London, 2019 WL 6109144 (N.J. App. Div. Nov. 18, 2019), New Jersey Transit (“NJT”) defeated the claim of several of its insurers that a $100 million flood sublimit applied to its Superstorm Sandy damages and recovered the full $400 million limits of its property insurance tower. The decision is a big win for the beleaguered transit agency, and for insurance professionals working with complex insurance towers, the decision highlights critical underwriting issues that can dramatically affect the amount of risk transferred by the policyholder or assumed by the insurer. In NJ Transit, NJT secured a multi-layered property insurance program providing $400 million in all-risk coverage. The first and second layers provided $50 million each, the third and fourth layers provided $175 million and $125 million, respectively, with several insurers issuing quota shares in each layer. The program contained a $100 million flood sublimit, and “flood” was defined to include a “surge” of water. The program did not contain a sublimit for damage caused by a “named windstorm,” which was defined to include “storm surge” associated with a named storm. After NJT made its Superstorm-Sandy claim, some of the third- and fourth-layer insurers advised NJT that the $100 million flood sublimit applied to bar coverage under their policies. NJT sued these excess insurers and won at the trial and appellate levels. In holding that the $100 million flood sublimit did not apply, the court applied the rule of construction that the specific definition of “named windstorm,” which included the terms “storm surge” and “wind driven water,” controlled over the policies’ more general definition of “flood.” In ascertaining the parties’ intent, the court noted that the omission of the term “storm surge” in the definition of “flood” evidenced an intention that the flood sublimit would not apply to storm surges. Based on this finding, the court rejected several arguments made by the insurers that other policy provisions evidenced the parties’ intent to apply the flood sublimit to all flood-related losses, regardless of whether the loss was caused by a storm surge. Read the court decision
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Reprinted courtesy of Traub Lieberman

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Partner Yvette Davis Elected to ALFA International’s Board of Directors

November 15, 2021 — Yvette Davis - Haight Brown & Bonesteel LLP
Congratulations to Haight Partner Yvette Davis who was elected by her peers to serve a three-year term on ALFA International’s 15 Member Board of Directors. The announcement was made during ALFA International’s Annual Business Meeting which took place in San Diego, California on October 20-22, 2021. About ALFA International ALFA International is the premier network of independent law firms. Founded in 1980, ALFA International was the first and continues to be one of the largest and strongest legal networks. We have 150 member firms throughout the world. Our 80 U.S. firms maintain offices in 95 of the 100 largest metropolitan areas. Our 70 international firms are located throughout Europe, Asia, Australia/New Zealand, Africa, Canada, Mexico and South America. Read the court decision
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Reprinted courtesy of Yvette Davis, Haight Brown & Bonesteel LLP
Ms. Davis may be contacted at ydavis@hbblaw.com

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How Are You Dealing with Material Delays / Supply Chain Impacts?

June 07, 2021 — David Adelstein - Florida Construction Legal Updates
In a prior article I discussed a material escalation provision in your construction contract to account for the volatility of the material price market. While including such a provision may not have been much of a forethought before, it is now! What about concerns with the actual supply chain that impacts the availability of and the lead time of materials? How are you addressing this concern in your construction contract? The pandemic has raised awareness to this issue as certain material availability has been impacted by the pandemic. As a result, parties in construction have tried to forecast those materials where delivery issues may occur including those materials with longer than expected lead times. But equally important is how this issue is being addressed in your construction contract including how you want to negotiate this risk in future construction contracts. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Three Reasons Late Payments Persist in the Construction Industry

December 22, 2019 — Patrick Hogan - Construction Executive
Construction professionals are all too familiar with the payment issues that plague the construction industry. Contractors, subcontractors and material suppliers often have to deal with payment delays and even nonpayment—affecting cash flow and their ability to meet expenses. According to an Atradius study, a quarter of all B2B invoices issued in North America are overdue. The construction industry accounted for one-third of those past-due invoices, and many contractors and construction business owners do not have a positive outlook on the industry's payment issues. The same survey found 55% of U.S. firms think there will be no change in the industry’s payment practices over the coming months—one-third even expects an increase in late payments. These findings show that managing cash flow is a significant challenge in the construction industry. Having a negative cash flow will push the company toward financial trouble, which may ultimately lead to its demise. Understanding the reasons why payment issues persist in construction will help contractors protect their business, prevent these issues from happening or at least minimize their effect on the current operations. Reprinted courtesy of Patrick Hogan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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CC&Rs Not the Place for Arbitration Agreement, Court Rules

May 24, 2011 — CDJ STAFF

In January, the California Court of Appeals ruled that an arbitration clause inserted in a development’s CC&Rs by the developer could not be enforced. The case, Villa Vicenza Homeowners Association v. Noble Court Development, involved a case in which, according to the opinion, “following the first sale Nobel controlled the board of directors of the Association and because the initial condominium buyers noticed defects in common areas and common facilities and did not believe Nobel had provided a reserve fund sufficient to repair the defects, the condominium owners brought a derivative action on behalf of the Association against Nobel.”

The court concluded, “The use of CC&R's as a means of providing contractual rights to parties with no interest in or responsibility for a common interest development is also problematic from the standpoint of determining what if any consideration would support such third-party agreements. By their terms the CC&R's bind all successors, even those with whom a third party such as Nobel has never had any contractual relationship and to whom Nobel has not provided any consideration.” The court determined that “the trial court did not err in denying Nobel's motion to compel arbitration.”

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Important New Reporting Requirement for Some Construction Defect Settlements

April 17, 2019 — Ian Williamson - Gordon & Rees Construction Law Blog
In response to a tragic balcony collapse incident where the public later learned the contractor had paid millions to settlement defect cases in the preceding years, the California legislature passed, the state contractor’s license board is now implementing, a public disclosure requirement for certain construction defect claims. The disclosure requirement is triggered by a judgment (which is not a new requirement), an arbitration award, or a settlement of certain construction defect claims. These requirements are codified at California Business & Professions Code sections 7071.20-22. What types of Projects: This requirement applies only if all of the following apply:

A) Residential B) Multi-Family; and C) Rental property

Limitations on Claims – The reporting requirement only applies if all of the following are true:

A) The claim is against a CSLB licensee (not a design professional) acting in the capacity of a contractor; B) The claim is for a structural defect; C) The total claim is valued at $1 million (not including investigation costs); D) SB800 does not apply; E) The action was filed after January 1, 2019; and F) If a lawsuit, the case was designated complex by the courts (which may not apply if only contractor is sued).

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Reprinted courtesy of Ian Williamson, Gordon & Rees
Mr. Williamson may be contacted at igwilliamson@grsm.com

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Texas City Pulls Plug on Fossil Fuels With Shift to Solar

March 19, 2015 — Christopher Martin – Bloomberg
(Bloomberg) -- A city in the heart of the oil state of Texas is set to become one of the first communities in the U.S. to wean its residents off fossil fuels. The municipal utility in Georgetown, with about 50,000 residents, will get all of its power from renewable resources when SunEdison Inc. completes 150 megawatts of solar farms in West Texas next year. The change was announced Wednesday. It will be the first city to completely embrace clean power in the state, which is the biggest U.S. producer and user of natural gas. More will follow as municipalities seek to insulate themselves from unpredictable prices for fossil fuels, said Paul Gaynor, SunEdison’s executive vice president of North America. Burlington, Vermont, made a similar move with its purchase of a hydroelectric plant last year. Read the court decision
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Reprinted courtesy of Christopher Martin, Bloomberg
Mr. Martin may be contacted at cmartin11@bloomberg.net

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A New Way to Design in 3D – Interview with Pouria Kay of Grib

August 24, 2017 — Aarni Heiskanen - AEC Business
In this podcast interview with Pouria Kay, CEO and Co-founder at Grib, we talk about the startup’s new, intuitive 3D design tool. Grib® is a cloud–based software that turns a mobile device into a universal controller. With Grib, both young and professional designers can sketch complex objects without first having to learn cumbersome 3D software. You work intuitively in actual 3D space and interact with your environment using augmented reality. All you need is pen, paper, and your mobile device. You can share models with friends, order a print, or export them if needed. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at info@aepartners.fi

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