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DIRECTORY AND CAPABILITIES

New York Court Holds Radioactive Materials Exclusion Precludes E&O Coverage for Negligent Phase I Report

October 30, 2018 — Brian Margolies - TLSS Insurance Law Blog
In its recent decision in Merritt Environmental Consulting Corp. v. Great Divide Ins. Co., 2018 U.S. Dist. LEXIS 175527 (E.D.N.Y. Oct. 10, 2018), the United States District Court for the Eastern District of New York had occasion to consider the application of a radioactive materials exclusion in a professional liability policy. Great Divide’s insured, Merritt Environmental, was hired as an environmental consultant by a bank in connection with a mortgage refinance of a property located in Westchester County, New York. Merritt’s responsibility was to prepare a Phase I environmental report concerning the property, which the bank ultimately relied on in agreeing to the refinance. It was later claimed, however, that Merritt’s report failed to document the full extent of the property’s radium and uranium contamination resulting from its use in the Manhattan Project. Merritt was named in two separate lawsuits as a result of its allegedly faulty report, including one by the bank alleging that Merritt negligently prepared its report. Read the court decision
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Reprinted courtesy of Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP
Mr. Margolies may be contacted at bmargolies@tlsslaw.com

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Georgia Supreme Court Addresses Anti-Indemnity Statute

October 21, 2019 — David R. Cook - AHC Construction and Procurement Blog
In prior blog posts, we addressed Georgia’s anti-indemnity statute. One of the posts addressed the statute in the context of an electric utility easement near an airport. That case made its way to the Supreme Court Georgia, which provided some additional clarity to the statute. Milliken & Co. v. Georgia Power Co., — Ga. –, 829 S.E.2d 111 (2019). When a plane crashed and several passengers and crew died or were injured, their representatives sued several defendants, including a nearby plant owner, Milliken & Company (“Milliken”), based on claims that transmission lines on Milliken’s property were too close to the runways, were too high, and encroached on the airport easements. Milliken cross claimed against Georgia Power Company (“GPC”). Milliken’s claim was based on an easement it granted to GPC, which required GPC to indemnify it for any claims arising out of GPC’s construction or maintenance of the transmission lines. On appeal, the Supreme Court considered whether the clause was unenforceable under O.C.G.A. § 13-8-2(b). In general, “a party may contract away liability to the other party for the consequences of his own negligence without contravening public policy, except when such agreement it prohibited by statute.” Id. at 113 citing Lanier at McEver v. Planners & Eng’rs Collaborative, 284 Ga. 204, 205 (2008). As one such statute, O.C.G.A. § 13-8-2(b) applies when an indemnification provision (i) “relates in some way to a contract for construction, alteration, repair, or maintenance of certain property” and (ii) “promises to indemnify a party for damages arising from that own party’s sole negligence.” Id. at 114 (internal punctuation omitted). Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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The U.S. Tenth Circuit Court of Appeals Rules on Greystone

November 18, 2011 — Derek J. Lindenschmidt, Higgins, Hopkins, McLain & Roswell, LLC

On November 1, 2011, the Tenth Circuit Court of Appeals ruled on the certified question of whether property damage caused by a subcontractor’s faulty workmanship is an “occurrence” for purposes of a commercial general liability (CGL) insurance policy. In Greystone Const., Inc. v. National Fire & Marine Ins. Co., No. 09-1412 (10th Cir. Nov. 1, 2011), the Tenth Circuit determined that because damage to property caused by poor workmanship is generally neither expected nor intended, it may qualify under Colorado law as an occurrence and liability coverage should apply. Id. at 2.

The short history of the Greystone case is as follows. In Greystone Const., Inc. v. National Fire & Marine Ins. Co., 649 F. Supp. 2d 1213 (D. Colo. 2009), two contractors and one of their insurers brought an action against a second insurer after the second insurer refused to fund the contractors’ defense in construction defect actions brought by separate homeowners. Id. at 1215. The U.S. District Court for the District of Colorado, relying on General Sec. Indem. Co. of Arizona v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo. App. 2009), granted summary judgment in favor of the second insurer on the basis that the homeowners’ complaints did not allege accidents that would trigger covered occurrences under the second insurer’s policies. Id. at 1220. Notably, the Greystone, General Security, and other similar decisions prompted the Colorado General Assembly to enact C.R.S. § 13-20-808, which was designed to provide guidance for courts interpreting perceived coverage conflicts between insurance policy provisions and exclusions. The statute requires courts to construe insurance policies to favor coverage if reasonably and objectively possible. C.R.S. § 13-20-808(5).

The Tenth Circuit began its analysis by determining whether C.R.S. § 13-20-808, which defines the term “accident” for purposes of Colorado insurance law, would have a retroactive effect, and thereby settle the question before the court. The Tenth Circuit gave consideration to several Colorado district court orders issued since the enactment of C.R.S. § 13-20-808 which have suggested that the statute does not apply retroactively, including Martinez v. Mike Wells Constr., No. 09cv227 (Colo. Dist. Ct., Mar. 1, 2011), and Colo. Pool. Sys., Inv. V. Scottsdale Ins. Co., No. 09cv836 (Colo. Dist. Ct., Oct. 4, 2010). The Tenth Circuit also attempted to ascertain the General Assembly’s intent behind the term “all insurance policies currently in existence...” Greystone, No. 09-1412, at 12. The Tenth Circuit determined that the General Assembly would have more clearly stated its intentions for the term if it was supposed to apply retroactively to expired policies, rather than those still running. Id. at 12-13. Ultimately, the Tenth Circuit decided that C.R.S. § 13-20-808 did not apply retroactively, but noted that “the retrospective application of the statute is not necessarily unconstitutional.” Id. at 9, 11-14. As such, the Tenth Circuit advised that it was required to decide the question presented in the appeal under the principles of Colorado insurance law. Id. at 15.

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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC. Mr. Lindenschmidt can be contacted at lindenschmidt@hhmrlaw.com

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Haight Brown & Bonesteel Ranked on the 2017 "Best Law Firms" List by U.S. News - Best Lawyers

November 10, 2016 — Haight Brown & Bonesteel LLP
U.S. News – Best Lawyers® ranked Haight Brown & Bonesteel on the 2017 “Best Law Firms” list in the Metropolitan Tier 1 Ranking in Los Angeles for their defense work in insurance law and personal injury litigation. Read the court decision
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Conn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect Statute

June 14, 2021 — Christy Jachimowski - Lewis Brisbois
Section 13a-149 of the Connecticut General Statutes, commonly known as Connecticut’s highway defect statute, provides that claims arising from injuries or damages to people or property resulting from a defective road or bridge can be asserted against a party responsible for maintaining that road or bridge. Conn. Gen. Stat. §13a-149. The statute also extends to sidewalks and further provides that written notice of an alleged injury must be given to a defendant municipality within ninety days of the injury. Recently, in Dobie v. City of New Haven, 2021 Conn. App. LEXIS 162 (App. Ct. May 1, 2021), the Connecticut Appellate Court overturned the trial court’s denial of a municipal defendant’s post-trial motion to dismiss. The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy. Since the plaintiff failed to meet the requisite notice requirements, pursuant to the statute, the Appellate Court held that the trial court erred in denying the municipality’s motion to dismiss for lack of subject matter jurisdiction. The Underlying Case In February of 2013, Plaintiff William Dobie filed suit against the City of New Haven alleging injuries and damages as a result of the negligence of a City of New Haven snowplow operator. Dobie’s claims arose from an incident that occurred on January 21, 2011, in which he was driving behind the City snowplow driver, who was in the process of plowing snow from a municipal street located in New Haven, Connecticut. As the defendant employee was operating his snowplow, he knocked off a manhole cover, causing Dobie’s vehicle to drive over the open manhole. Dobie claimed personal injuries as a result of his vehicle dropping into the open manhole, including injuries to his jaw. Read the court decision
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Reprinted courtesy of Christy Jachimowski, Lewis Brisbois
Ms. Jachimowski may be contacted at Christy.Jachimowski@lewisbrisbois.com

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Ninth Circuit: Speculative Injuries Do Not Confer Article III Standing

February 28, 2018 — Omar Parra and Lawrence S. Zucker II – Publications & Insights
As Dwight Schrute of hit NBC show “The Office” said, “identity theft is not a joke, Jim! Millions of families suffer every year!” In response, Congress has passed a variety of legislation over the years aimed at curbing identity theft. One such piece of legislation, the Fair Credit Reporting Act (“FCRA”), as amended by corollary acts, prohibits the printing of more than the last 5 digits of the credit card number or the credit card number’s expiration date on any sales receipt. Anyone who “willfully fails to comply with [the requirements] is liable to that consumer” for statutory or actual damages, attorney’s fees and costs, and potential punitive damages. But is a statutory violation of the FCRA alone a sufficient injury to confer Article III standing? No, says the Ninth Circuit. Reprinted courtesy of Omar Parra, Haight, Brown & Bonesteel LLP and Lawrence S. Zucker II , Haight, Brown & Bonesteel LLP Mr. Parra may be contacted at oparra@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Finalists in San Diego’s Moving Parklet Design Competition Announced

September 03, 2014 — Beverley BevenFlorez-CDJ STAFF
The city of San Diego together with the Downtown San Diego Partnership sponsored the Moving Parklet Design competition, and the winning design will be built and “used in public areas and legally permitted parking spaces throughout downtown San Diego to add a new and unique gathering space for the community,” according to the San Diego Source. A mobile parklet “is a small, innovative park that can move from location to location.” The winning team is chosen by facebook voters and will receive $5,000. Read the court decision
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Stick to Your Guns on Price and Pricing with Construction Contracts

December 20, 2021 — Christopher G. Hill - Construction Law Musings
In recent posts here at Construction Law Musings, I have discussed the need for clarity of contract, trusting your gut, and assuring that your contract has the necessities. All of these bits of advice (along with my usual advice of working with an experienced construction attorney) are true with regard to commercial construction contracts and apply ten fold in a residential construction (read working for a single/family owner on their house). With a residential project, you, as a construction contractor, are likely to be dealing with the difficult combination of an owner with little or no experience relating to how a construction project is supposed to work and an owner that is emotionally invested in the project because it is their home. Because of the above, and the fact that your project is likely the biggest single investment that the owner has made outside of possibly a prior house, the residential owner will likely be looking over your shoulder and may very well attempt to negotiate down some of the costs that they perceive as the project moves forward. In short, the average person 1. does not know how much the project truly costs the contractor, and 2. feels that because they hold the cash, they can and should have some control over the individual costs of the construction thus making those costs, and by extension, their contract, negotiable right up until the end. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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