Cambridge Massachusetts Building Expert Directory

Nevada Update: Nevada Commissioner of Insurance Updates Burning Limits Statute with Emergency Regulation

September 06, 2023 — William S. Bennett - Saxe Doernberger & Vita, P.C.
Following significant backlash in reaction to its enactment of legislation prohibiting enforcement of any provisions in liability insurance policies dictating that defense costs are included within the limits of insurance, the Nevada Division of Insurance issued an emergency regulation further clarifying the law.1 The regulation modifies two key aspects of the original law:

The term “policy of liability insurance,” as used in the statute, shall only mean those casualty insurance policies offered by insurers authorized under NRS 680A.060 and NRS 694C.230 to issue third-party liability insurance. In other words, the statute’s restrictions on eroding limits will no longer apply to “non-admitted” insurers.

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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

The Hidden Dangers of Construction Defect Litigation

March 28, 2012 — David M. McLain, Colorado Construction Litigation

David M. McLain, writing at Colorado Construction Litigation, has an interesting blog post republishing his article in Common Interests magazine, the monthly periodical of the Rocky Mountain Chapter of the Community Associations Institute. In his article, he touches on a number of pitfalls in construction defect litigation, including the potential conflicts of interests facing HOAs. He also considers the problems homeowners can face, including both “strong-arm tactics” taken by attorneys to compel homeowners to join the lawsuit, or situations in which the interests of the HOA do not match those of the homeowners. He writes:

There is also a conflict of interest with individual owners who attempt to opt out of the case. This can lead to shocking strong-arm tactics on the part of plaintiffs’ attorneys. In one instance, a plaintiffs’ attorney sent a letter to an individual homeowner that stated that as a 1/58th owner of the common elements, if he refused to go along with the suit, and there was ultimately a finding in favor of the HOA which was in any way limited by his refusal to participate, he would be personally liable for 1/58th of the HOA’s total damages. In another instance, a different plaintiffs’ attorney sent a letter to a homeowner who wanted the builder to perform warranty repairs, informing the owner that if he let the builder perform any repairs, the attorney would bill the HOA according to the fee agreement entered by the HOA board (without knowledge or consent of non-board members) and that the HOA would assess the homeowner for that expense. These are just two examples of conflicts which may arise between the HOA board and individual homeowners when the HOA pursues CD cases.

Another example of a conflict which will arise as a result of CD litigation occurs post-settlement. When an HOA settles for less than 100% of the amount necessary to fund all repairs outlined by its experts, plus attorneys’ fees and litigation costs, there will obviously be a shortfall in the amount necessary to fix the development. The HOA board must then choose to impose a special assessment to cover the shortfall or to make some, but not all, of the repairs outlined by its experts. In choosing the latter, the conflict arises with respect to which homes get fixed and which do not. In this situation, the HOA board has acted as the attorney-in-fact for the individual owners by bringing claims on their behalf, and has compromised those claims without their knowledge or consent.

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Reprinted courtesy of David M. McLain of Higgins, Hopkins, McClain & Roswell, LLC. Mr. McClain can be contacted at mclain@hhmrlaw.com.

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Landlords Beware: Subordination Agreements

May 03, 2017 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In the recent Arizona Court of Appeals case Earle Investments, LLC v. Southern Desert Medical Center Partners, 762 Ariz. Adv. Rep. 12 (2017), the Court of Appeals addressed the question of the scope of a subordination agreement signed by the property owner (Lessor/Landlord) at the request of the Lessee/Tenant and Lessee/Tenant’s Lender. In general, by subordination, Party No. 1 with a higher/better lien priority agrees to allow Party No. 2 (usually a lender providing construction funds for the overall betterment of the property) to get a lien position in front of Party No. 1. Party No. 1 presumably believes the switch of lien position in return for someone else paying for the property improvements will benefit Party No. 1 in the long run by resulting in an increase in the value of Party No. 1’s position. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

Another Municipality Takes Action to Address the Lack of Condominiums Being Built in its Jurisdiction

March 12, 2015 — Heather M. Anderson – Higgins, Hopkins, McLain & Roswell, LLC
Whether you are in the market to downsize or are looking to be a first time home buyer, you have likely noticed that your housing options in Colorado have become extremely limited over the course of the last several years. If you are a contractor and have worked on multi-family projects in the recent past, you know why the housing options are limited in the State of Colorado. In the past two years, there have been studies commissioned and articles published in local periodicals investigating the extreme slowdown seen in the construction of owner-occupied multi-family housing, namely condominiums and townhomes. Those of us involved in and with the construction industry are intimately familiar with the lengthy, complicated, and incredibly expensive construction defect litigation that has plagued multi-family construction in the State of Colorado and brought it to a virtual halt. And now, local municipalities and elected officials are starting to take notice. Most recently, the City of Lone Tree passed Ordinance No. 15-01, to become effective on April 1, 2015. According to the City of Lone Tree, Ordinance No. 15-01 is “aimed at encouraging the development of owner-occupied, multi-family residential projects through the adoption of regulations designed to balance the risk and exposure to builders and developers of such projects, while still protecting homeowners from legitimate construction defect claims.” Read the court decision
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Reprinted courtesy of Heather M. Anderson, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Anderson may be contacted at Anderson@hhmrlaw.com

Pollution Exclusion Does Not Apply To Concrete Settling Dust

November 28, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Applying Virginia law, the federal district court determined that the pollution exclusion did not bar coverage. Allied Prop. & Cas. Ins. Co. v. Zenith Aviation, Inc., 2018 U.S. Dist. LEXIS 14727 (E.D. Va. Aug. 29, 2018). Zenith Aviation, Inc. hired Abby Construction Company to install an elevator at its warehouse. A wet saw was used to cut away concrete, but Abby did not use any water with the wet saw. This created a significant amount of concrete dust to leave the warehouse. Surrounding businesses contacted the fire department because they thought the dust was smoke from a fire. The concrete dust settled inside Zenith's building, damaging airplane parts stored in the warehouse. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Florida Supreme Court Adopts Federal Summary Judgment Standard, Substantially Conforming Florida’s Rule 1.510 to Federal Rule 56

June 07, 2021 — Lewis Brisbois
Effective May 1, 2021, the Florida courts will transition to a new summary judgment standard meant to “align Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla. 2020). Consistent with this amendment, Florida Rule of Civil Procedure 1.510 has been amended to adopt the federal summary judgment rule, with exceptions for timing-related issues. The Florida Supreme Court’s most recent opinion on rule 1.510 and the text of new rule 1.510 can be found here. As background, on December 31, 2020, the Florida Supreme Court adopted the federal summary judgment standard by amending Florida Rule of Civil Procedure 1.510(c) to include the following sentence: “The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1976); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) [(the ‘Celotex trilogy’)].” In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d at 196. The court’s amendment was slated to take effect on May 1, 2021, subject to a public comment period. The court also sought guidance from the Florida Bar’s Civil Procedure Rules Committee. After careful consideration of numerous responses, the court ultimately chose to adopt the substance of the text from federal rule 56. Along with its amendments, the court provides substantial guidance as to how the Florida courts and practitioners should interpret the new rule. A summary of the court’s thorough discussion follows. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Illinois Court of Appeals Addresses Waiver and Estoppel in Context of Suit Limitation Provision in Property Policy

February 05, 2024 — James M. Eastham - Traub Lieberman
In Naperville Hotel Partners, LLC v. Liberty Mut. Fire Ins. Co., 2023 IL App (3d) 220440-U the Illinois Third District Court of Appeals addressed whether failure to include reference to a limitations provision in reservation of rights correspondence to an insured can be deemed a waiver of the provision or otherwise estop the insurer from relying on the provision. The claim involved water damage sustained at the Insured’s motel as a result of numerous rain events that occurred between 2015 and 2020. Liberty Mutual issued an insurance policy that covered several buildings including the subject hotel. The policy required that any legal action based on the coverage had to be brought "within two (2) years after the date on which the physical damage occurred, extended by the number of days between the date you submitted the statement of loss to us and the date we deny the claim in whole or in part." Plaintiffs filed their claim with Liberty Mutual in May 2019. In June of 2019 Liberty Mutual sent a reservation of rights letter to the Insured which requested more information and listed the "immediate written notice of loss" provision as a potential basis for excluding coverage but did not list the two-year time-limitation on legal action. Liberty Mutual also did not mention the provision in subsequent communications with the Insured. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

Traub Lieberman Attorneys Recognized as 2022 Illinois Super Lawyers® and Rising Stars

February 21, 2022 — Traub Lieberman
Traub Lieberman is pleased to announce that two Partners from the Chicago, IL office have been selected to the 2022 Illinois Super Lawyers list. In addition, three Partners have been named to the 2022 Super Lawyers Rising Stars list. 2022 Illinois Super Lawyers

Brian Bassett – Insurance Coverage
Dana Rice – Insurance Coverage

2022 Super Lawyers Rising Stars

Brandt Allen – Insurance Coverage
Jessica Kull – Civil Litigation: Defense
Jeremy Macklin – Insurance Coverage

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Reprinted courtesy of Traub Lieberman

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