Construction on the Rise in Washington Town
June 16, 2011 —
CDJ STAFFThe Kitsap Sun reports that Gig Harbor, a town in the area near Tacoma, Washington, has had a 60% increase in building permit applications as compared to 2010. May, 2011 had as many permits issued for single-family residences in Gig Harbor as were issued for all of 2010. Additionally, a Safeway shopping center on Point Fosdick is described by Dick Bower, Gig Harbor Building and Fire Safety Director, as “a huge project and it’s going to bring in quite a bit of revenue.” He called the increase in building “economic recovery at the grassroots level.”
Bower said that the building officials in other towns have also seen upswings in construction. He anticipates more activity in the future.
Read the full story…
Read the court decisionRead the full story...Reprinted courtesy of
Miller Act Statute of Limitations and Equitable Tolling
July 11, 2022 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to a Miller Act payment bond claim, there is a one-year statute of limitations—“The Miller Act contains a statute of limitations provision that requires actions to ‘be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the claim.’” U.S. f/u/b/o Techniquex Specialty Flooring, Inc., v. Philadelphia Indemnity Ins. Co., 2022 WL 169070, *3 (M.D.Penn. 2022) (citing the Miller Act).
There is an argument, albeit a difficult one, to support an equitable tolling of the one-year statute of limitations. This would be an argument filed when the one-year statute of limitations expires, but there is reason for missing the statute of limitations caused typically by the overt misleading of the defendant (surety/bond-principal):
“Equitable tolling functions to stop the statute of limitations from running where the claim’s accrual date has passed.” “Equitable tolling is appropriate in three situations: (1) when the defendant has actively misled the plaintiff respecting the facts which comprise the plaintiff’s cause of action; (2) when the plaintiff in some extraordinary way has been prevented from asserting his rights; and (3) when the plaintiff has timely asserted his rights in the wrong forum.” The first ground for equitable tolling“appears to be the same, in all important respects” to equitable estoppel, which “excuses late filing where such tardiness results from active deception on the part of the defendant” and “what courts describe as ‘equitable tolling’ is encompassed by the latter two parts of our Circuit’s doctrine.” The extraordinary circumstances standard may be met “where the defendant misleads the plaintiff, allowing the statutory period to lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated against her …”
Tehniquex, supra, at *5 (internal citations omitted).
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Noncumulation Clause Limits Coverage to One Occurrence
January 07, 2015 —
Tred R. Eyerly – Insurance Law HawaiiInjury suffered by children of different families living at different times in the same apartment was limited to one occurrence under the policy's noncumulation clause. Nesmith v. Allstate Ins. Co., 2014 N.Y. LEXIS 3350 (N.Y. Nov. 25, 2014).
The landlord had a liability policy issued by Allstate. The declarations page stated there was a $500,000 limit for "each occurrence." The policy contained the following noncumulation clause:
Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability . . . for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury . . . resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
BE PROACTIVE: Steps to Preserve and Enhance Your Insurance Rights In Light of the Recent Natural Disasters
October 19, 2017 —
Jacquelyn M. Mohr – Newmeyer & Dillion LLPOur hearts go out to those families and businesses who have suffered losses due to the recent fires, hurricanes, and other natural disasters. We hope that everyone in Sonoma, Napa, Orange County, and nationwide affected by these tragic events is somewhere safe. As someone who lost a house in a fire growing up and now is an attorney who helps both residential and business policyholders, there are a few pieces of wisdom I’d like to pass along to help prepare for the worst:
1) MAINTAIN DUPLICATES OF CRITICAL DOCUMENTS OFFSITE OR ONLINE
After the fire, you’re going to need your insurance policies and other critical documents. While it’s usually possible to request copies, this can take weeks, which will hold up your claims process. We are fortunate enough to have the technology for cloud-based storage of key documents – like your insurance policy, insurance broker contact information, tax returns, life insurance policies, will, business plan, inventories, etc. – oftentimes for free. Maintaining these records onsite during your daily life and business operations is important, but so is taking the time and trouble to make sure you have a back-up offsite. It’s easy to do, and so much easier than trying to recreate it after the fact.
2) MAKE A RECORD OF YOUR PROPERTY AND POSSESSIONS
If you are lucky enough to still be in your home or business property, I strongly recommend that you take a video of your property and possessions to keep for your records. A digital inventory with receipts would be great – but a video log will also be very helpful later.
- For your home: This includes the furniture, artwork, appliances, jewelry, electronics, collectibles, landscaping and custom features of the inside and outside of your house.
- For your business: This includes your furniture and artwork, your inventory and your electronics.
Look into offsite back-ups of your important electronic data – whether documents, e-mails, insurance policies, inventory logs, accounting data, client correspondence, or pictures of your kids or grandkids.
Why A Record Is Important in the Insurance Claims Process
Though I hope no one has to deal with this, a video record will make it much easier in the event of a tragedy to deal with insurance claims for two reasons:
- It is evidence to submit to the insurance company to show exactly what your property was like before disaster struck.
- For your home, you likely have a homeowner's insurance policy that covers your “3 bedroom, 2 bath, 2000 square foot home built in 1962,” but your insurer won’t know the quality of what is actually inside. It will be up to you to prove you had a brand new Viking stovetop, rather than a 20-year old Kitchenaid; custom built-in cabinets rather than Ikea furniture. (On this note, if you ever do any remodeling, be sure to tell your broker to make sure it's covered by your policy!)
- For your business, your policy will similarly be generic, and the insurer will similarly insist on evidence of your business inventory, sales orders, equipment, artwork, etc. in the event of a loss.
- A video record will also help to jog your memory to create itemized inventories to submit to the insurance company. Creating an inventory of everything lost after a casualty can be the most difficult and emotional part of the rebuilding process. I encourage you to do anything you can do now to lessen the stress later. After a traumatic loss, it’s impossible to remember everything, so most people never collect their full insurance benefits. United Policyholders, an amazing non-profit resource for policyholders, has a great app and other online tools to help create your inventory. You can find the app and other helpful information at http://www.uphelp.org/
3) CHECK YOUR POLICY
Even if you have not been personally affected by the recent disasters, these tragedies are an excellent reminder to check to make sure you are fully covered.
- Make sure you understand what is covered under your policy, and get confirmation that you are covered for a total loss. Talk with your broker to make sure your policy limits make sense, including those for separate structures, personal property, and additional living expenses, which are usually a percentage of your dwelling coverage limit.
- Check to make sure your personal property limits would cover your possessions– if you have a lot of artwork, jewelry, antiques, and other valuables, the standard limits might not be enough for you.
- Consider this question: Does your additional living expense/business interruption coverage (aka the amount your insurance company will pay while your home or business property is being rebuilt) provide enough for your needs? Even if your limits/coverage made sense when you purchased the policy, things may have changed.
You can usually increase your other coverage limits with a quick email to your insurance broker, often with very little impact on your annual premium.
4) DON’T BE AFRAID TO ASK FOR HELP
As simple as it sounds, don’t be afraid to ask for help. No one expects you to be an expert on this, and pretending you don’t need assistance can cost you thousands of dollars in insurance benefits in the future. So be sure to take advantage of the resources out there so that you are fully prepared to handle whatever disaster nature sends your way.
For any additional questions, and for help navigating the insurance claims process after a disaster, please do not hesitate to reach out.
Jacquelyn Mohr is an associate in the Walnut Creek office of Newmeyer & Dillion, focusing in business litigation, insurance coverage, securities fraud and construction disputes. Jacquelyn can be reached at Jacquelyn.Mohr@ndlf.com or 925.988.3200.
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.
Read the court decision
Read the full story...
Reprinted courtesy of Jacquelyn M. Mohr, Newmeyer & Dillion LLP
Ms. Mohr may be contacted at Jacquelyn.mohr@ndlf.com
Critical Materials for the Energy Transition: Of “Rare Earths” and Even Rarer Minerals
September 12, 2022 — Robert A. James, Ashleigh Myers, Shellka Arora-Cox & Amanda G. Halter - Gravel2Gavel Construction & Real Estate Law Blog
As the world pursues ambitious net-zero carbon emission goals, demand is soaring for the critical materials required for the technologies leading the energy transition. Lithium may be the most well-known of these inputs due to its usage in batteries for vehicles and consumer electronics, but roughly 50 other minerals are central to energy transition technologies. During the coming years, producers, manufacturers and end-users will be increasingly exposed to the roles played by “rare earth” elements (roughly, atomic numbers 57 to 71), platinum group metals, and other materials.
The reasons for this heightened interest are simple—even if the underlying environmental, political and technological forces at play are complex:
- Lower-carbon technologies use different materials than carbon-intensive technologies.
The mineral requirements of power and mobility systems driven by renewable, nuclear, hydrogen and fusion energy are profoundly different from those forming the backbone of fossil fuel systems. Minerals such as lithium, nickel, copper, cobalt, and rare earth elements are vital for electric vehicles (EVs), batteries, fuel cells, electricity grids, wind turbines, smart devices, and many other essential and proliferating civilian and military technologies. For example, an offshore wind plant needs 13 times more mineral resources than a gas power plant of a similar size.
Reprinted courtesy of Robert A. James, Pillsbury, Ashleigh Myers, Pillsbury, Shellka Arora-Cox, Pillsbury and Amanda G. Halter, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Ms. Arora-Cox may be contacted at shellka.aroracox@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Read the court decision
Read the full story...
Reprinted courtesy of
Undercover Sting Nabs Eleven Illegal Contractors in California
January 27, 2014 — Beverley BevenFlorez-CDJ STAFF
A sting operation conducted in Rancho Murieta, California on January 16th by the Statewide Investigative Fraud Team, with assistance from the state Department of Consumer Affairs Division of Investigation netted “11 people accused of illegal, unlicensed home improvement contracting,” reported the Merced Sun-Star. The news source stated that “the statewide drought” provided “a new angle in approaching conservation-minded property owners, according to the Contractors State License Board.”
The accusations included “illegal contracting after seeking bids for exterior painting, fencing and landscaping jobs,” according to the Merced Sun-Star. The eleven individuals received notices to appear in Sacramento Superior Court for arraignment March 27th.
Read the court decision
Read the full story...
Reprinted courtesy of
Housing Woes Worse in L.A. Than New York, San Francisco
September 03, 2014 — Nadja Brandt and John Gittelsohn – Bloomberg
Jeanette Cross took out a payday loan to cover her May rent of $1,600 in South Los Angeles. She skipped car and insurance payments to keep a roof over her head.
“I’m further and further behind,” Cross, a 34-year-old single mother of four, said in a telephone interview. “I make a payment on one thing and don’t pay others.”
She isn’t alone. Angelenos use a bigger slice of their paychecks on shelter than people in New York, San Francisco or Miami, studies show. Surging property prices in the second-largest U.S. city are driving up costs in once-impoverished areas while pushing lower-income households into converted garages or to distant suburbs, where the tradeoff is hours stuck in traffic each day.
Reprinted courtesy of Nadja Brandt, Bloomberg and John Gittelsohn, Bloomberg
Ms. Brandt may be contacted at nbrandt@bloomberg.net; Mr. Gittelsohn may be contacted at johngitt@bloomberg.net Read the court decision
Read the full story...
Reprinted courtesy of
Fundamental Fairness Trumps Contract Language
September 24, 2014 — Craig Martin – Construction Contractor Advisor
The Texas Supreme Court recently ruled that a “no-damages-for-delay” clause would not be enforced where the delay was caused by the owner. The court’s ruling flies squarely in the face of the contract language that attempted to insulate the owner from any delay claims, even those it caused.
In the case of Zachary Construction v. Port of Houston underlying contract, proposed by the Port of Houston, was heavy handed, to say the least. The contract provided:
“[Contractor] shall receive no financial compensation for delay or hindrance to the Work. In no event shall the Port Authority be liable to [Contractor] … for any damages arising out of or associated with any delay or hindrance to the Work, regardless of the source of the delay or hindrance, including events of Force Majeure, AND EVEN IF SUCH DELAY OR HINDRANCE RESULTS FROM, ARISES OUT OF OR IS DUE IN WHOLE OR IN PART, TO THE NEGLIGENCE, BREACH OF CONTRACT OR OTHER FAULT OF THE PORT AUTHORITY. [Contractor’s] sole remedy in any such case shall be an extension of time.”
Wow, that’s some one-sided language. If the contract was enforced, the contractor could not get any damages for delay, even those damages caused by the active interference of the Port of Houston.
Read the court decision
Read the full story...
Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com
