Traub Lieberman Attorneys Lisa Rolle and Christopher Acosta Win Summary Judgment in Favor of Property Owner
February 20, 2023 —
Lisa M. Rolle & Christopher D. Acosta - Traub LiebermanTraub Lieberman Attorneys Lisa Rolle and Christopher Acosta obtained summary judgment in favor of Defendant, the owner of a premises located in Bronx, New York, in a personal injury case brought before the Supreme Court of the State of New York, Bronx County. The Plaintiff alleged that while leaving the Defendant’s premises, she unexpectedly fell. It is undisputed that the Plaintiff does not know why she fell or identify any defect that may have caused her fall. The Defendant’s witness testified that the route taken by the Plaintiff was free of any defect prior to and on the date of the incident. The witness further testified that the site was also subject to routine inspection leading up to the incident, in which no tripping hazards were observed.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman and
Christopher D. Acosta, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Acosta may be contacted at cacosta@tlsslaw.com
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First Circuit Limits Insurers’ Right to Recoup Defense Costs or Settlement Payments
April 02, 2024 —
Eric Hermanson, Austin Moody & Victoria Ranieri - White and Williams LLPWeighing in on an issue that has divided courts nationwide, the U.S. Court of Appeals for the First Circuit has ruled that an insurer under Massachusetts law has no right to recoup defense costs, or amounts the insurer pays in settlement – even if the insurer reserves rights prior to payment and obtains a ruling, after the fact, that no defense or indemnity was owed. Berkley Natl. Ins. Co. v. Atlantic-Newport Realty LLC, No. 22-1959, 2024 U.S. App. LEXIS 4115 (1st Cir. Feb 22, 2024) (“Granite Telecomm"). However, the First Circuit rested its ruling on narrow procedural grounds, which may prolong the controversy rather than resolve it.
The insureds in Granite Telecomm owned a company cafeteria. They were sued by a food service worker who suffered a foot infection after being exposed to bacteria during a sewage backup. They sought coverage from their insurer, Berkley. Berkley argued that coverage was barred by a fungus and bacteria exclusion in the policy. The insureds disagreed. They threatened suit under M.G.L. ch. 93A, and demanded that Berkley defend the case.
Reprinted courtesy of
Eric Hermanson, White and Williams LLP,
Austin Moody, White and Williams LLP and
Victoria Ranieri, White and Williams LLP
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
Ms. Ranieri may be contacted atranieriv@whiteandwilliams.com
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The Rise of Modular Construction – Impacts for Consideration
December 04, 2023 —
Chad V. Theriot - ConsensusDocsModular construction is not new. However, over the last several years, modular construction has seen significant growth with no signs of slowing down. In 2021, global modular construction represented a market of approximately $130 billion and is projected to reach upwards of $235 billion by 2031. Modular construction growth in the US is largely due to the technological advances and globalization.
In general, modular construction involves the manufacturing and fabrication of standardized components of a structure in an off-site, controlled environment. Once those components are fabricated, they are then transported to the project site and assembled by an installer or contractor. Moving these fabrication and construction activities off-site allows the fabricator to control the quality standards over the fabrication process and gain the economic advantage of an assembly line and manufacturing process. This leads to a reduction in cost. This cost savings is then passed on to the owner, thereby driving down the overall price of construction.
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Chad V. Theriot, Jones Walker (ConsensusDocs)Mr. Theriot may be contacted at
ctheriot@joneswalker.com
How to Build a Coronavirus Hospital in Ten Days
April 20, 2020 —
Elaine Lee - Gravel2Gavel Construction & Real Estate Law BlogIf the coronavirus pandemic continues to spread in the United States as it has in other countries, drastic expansions of hospital and quarantine facility capacity are likely to be necessary. In the hard-hit Seattle area, several temporary facilities are already under construction, including a 200-bed temporary quarantine and isolation center built on a soccer field. China’s response to the initial outbreak in the city of Wuhan demonstrates how rapidly authorities can add capacity in an emergency.
As thousands of citizens became ill with COVID-19, China built two hospitals in Wuhan over the span of just days. Time-lapse videos such as this one show how remarkably quickly the hospitals were built. Construction on the Huoshenshan Hospital (shown in the prior linked video) began on January 23 and finished eight days later. A second hospital, Leishenshan Hospital, began construction on January 25 and finished 12 days later. Square footage information on both hospitals has been inconsistently reported, but Huoshenshan Hospital has a capacity for 1,000 beds, while Leishenshan Hospital has a capacity for 1,600 beds.
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Elaine Lee, PillsburyMs. Lee may be contacted at
elaine.lee@pillsburylaw.com
Enforceability of Contract Provisions Extending Liquidated Damages Beyond Substantial Completion
April 15, 2024 —
Stu Richeson - The Dispute ResolverThis post takes a look at the enforceability of contract provisions providing for liquidated delay damages after substantial completion. Typically, the assessment of liquidated delay damages ends at substantial completion of a project. However, various standard form contracts, including some of the ConsensusDocs and EJCDC contracts, contain elections allowing for the parties to agree on the use of liquidated damages for failing to achieve substantial completion, final completion, or project milestones. The standard language in the AIA A201 leaves it up to the parties to define the circumstances under which liquidated damages will be awarded.
Courts are split on the enforceability of provisions that seek to assess liquidated damages beyond substantial completions. Courts in some jurisdictions will not impose liquidated damages after the date of substantial completion on the ground that liquidated damages would otherwise become a penalty if assessed after the owner has put the project to its intended use. Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 610 A.2d 364 (1992). When the terms are clear, other jurisdictions will enforce contract terms providing for liquidated damages until final completion, even if the owner has taken beneficial use of the facility. Carrothers Const. Co. v. City of S. Hutchinson, 288 Kan. 743, 207 P.3d 231 (2009).
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Stu Richeson, PhelpsMr. Richeson may be contacted at
stuart.richeson@phelps.com
Illinois Supreme Court Holds that Constructions Defects May Constitute “Property Damage” Caused By An “Occurrence” Under Standard CGL Policy, Overruling Prior Appellate Court Precedent
January 08, 2024 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn November 30, 2023, the Illinois Supreme Court issued an opinion that overturned precedent in Illinois regarding whether faulty workmanship that only caused damage to the insured’s own work constituted “property damage” caused by an “occurrence” under Illinois law. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087, the Illinois Supreme Court considered whether Acuity, a mutual insurance company, had a duty to defend its additional insured, M/I Homes of Chicago, LLC (M/I Homes), under a subcontractor’s commercial general liability (CGL) policy in connection with an underlying lawsuit brought by a townhome owners’ association for breach of contract and breach of an implied warranty of habitability. The Cook County Circuit Court granted summary judgment in favor of Acuity finding no duty to defend because the underlying complaint did not allege “property damage” caused by an “occurrence” under the initial grant of coverage of the insurance policy. The appellate court reversed and remanded, finding that Acuity owed M/I Homes a duty to defend. The Illinois Supreme Court affirmed, in part, holding construction defects to the general contractor’s own work may constitute “property damage” caused by an “occurrence” under the standard CGL Policy. This is significant as it overrules prior Illinois precedent finding that repair or replacement of the insured’s defective work does not satisfy the initial grant of coverage of a CGL Policy.
By way of background, the underlying litigation stems from alleged construction defects in a residential townhome development in the village of Hanover Park, Illinois. The townhome owners’ association, through its board of directors (the Association) subsequently filed an action on behalf of the townhome owners for breach of contract and breach of the implied warranty of habitability against M/I Homes as the general contractor and successor developer/seller of the townhomes. The Association alleged that M/I Homes’ subcontractors caused construction defects by using defective materials, conducting faulty workmanship, and failing to comply with applicable building codes. As a result, “[t]he [d]efects caused physical injury to the [t]ownhomes (i.e. altered the exterior’s appearance, shape, color or other material dimension) after construction of the [t]ownhome[ ] was completed from repeated exposure to substantially the same general conditions.” The defects included “leakage and/or uncontrolled water and/or moisture in locations in the buildings where it was not intended or expected.” The Association alleged that the “[d]efects have caused substantial damage to the [t]ownhomes and damage to other property.”
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Residential Interior Decorator Was Entitled to Lien and Was Not Engaging in Unlicensed Contracting
August 04, 2021 —
David Adelstein - Florida Construction Legal UpdatesResidential construction disputes can sometimes take nasty turns. This is not attributed to one specific reason, but a variety of factors. Sometimes, there are not sophisticated contracts (or contracts at all). Sometimes, relationships and roles get blurred. Sometimes, parties try to skirt licensure requirements. Sometimes, a party is just unreasonable as to their expectations. And, sometimes, a party tries to leverage a construction lien to get what they want. In all disputes, a party would certainly be best suited to work with construction counsel that has experience navigating construction disputes.
An example of a construction dispute that took a nasty turn involving an interior decorator is SG 2901, LLC v. Complimenti, Inc., 2021 WL 2672295 (Fla. 3d DCA 2021). In this case, a condominium unit owner wanted to renovate his apartment. He hired an interior decorator to assist. As his renovation plans became more expansive, the interior decorator told him he would need to hire a licensed contractor and architect. The interior decorator arranged a meeting with those professionals and, at that meeting, they were hired by the owner and told to deal directly with the interior decorator, almost in an owner’s representative capacity since the owner traveled a lot. The interior decorator e-mailed the owner about status and requested certain authorizations, as one would expect an owner’s representative to do. At the completion of the renovation job, the owner did not pay the interior decorator because he was unhappy with certain renovations. The interior decorator recorded a construction lien and sued the owner which included a lien foreclosure claim. There was no discussion of the contracts in this case because, presumably, contracts were based on proposals, were bare-boned, or were oral.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Changes to Comprehensive Insurance Disclosure Act in New York Introduced
February 07, 2022 —
Craig Rokuson & Lisa M. Rolle - Traub Lieberman Insurance Law BlogAs discussed in our post on Friday, January 7, 2022, Governor Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, mandating comprehensive, automatic disclosures regarding insurance in all cases pending in New York courts.
Although the law was signed as written, Governor Hochul also made proposed amendments to the law, in the form of a “redline” in an attempt to make the law less onerous on insurance companies and businesses. On January 18, 2022, Senator Andrew Gounardes introduced Senate Bill 7882, incorporating Governor Hochul’s proposed amendments:
- The time for disclosure would be 90 days of service of the answer, instead of 60.
- The proof of insurance could constitute a declaration page only, if a party agrees in writing.
- The required policies to be disclosed only relate to the claim litigated.
Reprinted courtesy of
Craig Rokuson, Traub Lieberman and
Lisa M. Rolle, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com
Ms. Rolle may be contacted at lrolle@tlsslaw.com
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