Maryland Finally set to Diagnose an Allocation Method for Progressive Injuries
February 18, 2020 —
William S. Bennett - Saxe Doernberger & Vita, P.C.Maryland’s highest court recently heard arguments regarding the proper method of allocation of the covered damages from a slowly progressing asbestos injury amongst insurance policies in place over a period of years. Rossello v. Zurich American Insurance Company, Case No. 2436 (Md. 2019). The court may also be forced to determine what the proper trigger of coverage is for latent bodily injury claims, although the plaintiff has not framed the issue in that manner.
In Rossello, the plaintiff, Patrick Rossello, worked for a period of years for the now-defunct Lloyd E. Mitchell, Inc. (“Mitchell”), a construction company operating until 1976. In 1974 he was exposed to and inhaled asbestos fibers. He was ultimately diagnosed in 2013 with malignant mesothelioma as a result of that exposure. Rossello obtained a judgment for approximately $2,700,000 against Mitchell and secured the right to pursue its insurance. As relevant to this dispute, Mitchell carried liability insurance policies, which provide coverage for asbestos related claims, from 1974 to 1977.
Rossello seeks to hold Zurich, as successor to Maryland Casualty Company, accountable for the full value of his award, based on the 1974 policy. Although this contention actually implicates two separate issues, plaintiff’s counsel passed over the initial trigger of coverage issue and focused instead on the issue of allocation of coverage.
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William S. Bennett, Saxe Doernberger & Vita, P.C.Mr. Bennett may be contacted at
wsb@sdvlaw.com
Winning Attorney Fees in Litigation as a California Construction Contractor or Subcontractor
December 27, 2021 —
William L. Porter - Porter Law GroupThe General Rule in California: The Winner Does NOT Receive Attorney Fees and Costs:
There is a common misconception that court decisions require the loser in a lawsuit to reimburse the winner for the fees and costs incurred during the lawsuit. Reliance on this misconception in developing a legal strategy for dealing with disputes is a serious strategic error. Where the legal issue is, for example, “breach of contract,” the general rule in California is that there are only two methods by which the winning litigant will be awarded the attorney fees and costs incurred in bringing or defending the lawsuit. The first of these is if the contract in question contains an effective attorney fee clause specifically providing that the prevailing party will recover their attorney fees and costs. The second is if there is a statute on point which provides that the prevailing party will be awarded those fees and costs. The general rule in California is that each party pays their own attorney fees and costs, unless there is an independent legal basis that provides otherwise. This is known as the “American Rule,” used throughout most of the country.
The Issue is Important Because Spending More Money Than You Can Be Awarded is a Losing Strategy:
The importance of whether the prevailing party in a lawsuit will be awarded their fees and costs cannot be underestimated. The party contemplating whether to bring a lawsuit must seriously consider whether it is even worth the trouble. In many cases, unless the one bringing the lawsuit (the “plaintiff”) is entitled to be reimbursed for the considerable attorney fees and costs incurred in bringing the case, it is just not worth doing so. There is no point spending $50,000 on attorneys on a $40,000 claim unless the plaintiff can be awarded both the $40,000 and the $50,000 if the plaintiff wins. Unless fees and costs are awarded, the plaintiff will still be out $10,000 in the very best of cases. For a party sued (the “defendant”) a similar situation arises in that the defendant faces the reality that it may be less expensive to just pay on a frivolous or false claim than to fight it. Either scenario is unsatisfactory. On the whole, it is beneficial to have an attorney fee clause in a contract when either a plaintiff or a defendant must vindicate its rights. Both deserve to be fully compensated to achieve justice. It is also beneficial to have an attorney fee clause in a contract to encourage the one who is at fault to resolve the case rather than risk paying the fees and costs of the other party who is likely to win the case. In either case, the presence of an attorney fee clause facilitates the party in the right and encourages resolution outside of litigation. These are admirable societal goals.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Canada Home Resales Post First Fall in Eight Months
October 15, 2014 —
Greg Quinn – BloombergCanadian existing home sales fell from a four-year high in September (TNBHICY%), the first decline in eight months, led by Calgary and Edmonton in oil-rich Alberta.
Sales fell 1.4 percent to 41,666 units, the Canadian Real Estate Association said today from Ottawa. From a year earlier sales rose 10.6 percent and the average price climbed 5.9 percent to C$408,795 ($362,100).
The decline came in part because of a shortage of “affordably priced single family homes,” Beth Crosbie, CREA President, said in the report.
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Greg Quinn, BloombergMr. Quinn may be contacted at
gquinn1@bloomberg.net
Construction Litigation Roundup: “Wrap Music to an Insurer’s Ears?”
February 05, 2024 —
Daniel Lund III - LexologyThe general contractor on a New Orleans condominium construction project obtained a Contractor Controlled Insurance Program/CCIP policy or "Wrap-Up" policy for the job.
An accident occurred on the job when a construction elevator/hoist fell, injuring several workers. The elevator/hoist was provided by a subcontractor, pursuant to a rental agreement and related subcontract with the general contractor. Contained within the subcontract was a provision which states that the general contractor "has arranged for the Project to be insured under a controlled insurance program (the "CCIP" or "WrapUp"),” and that the CCIP shall provide "commercial general liability insurance and excess liability insurance, in connection with the performance of the Work at the Project site."
A third-party administrator for the wrap-up policy had been in communication with the subcontractor prior to the commencement of the work, “specifically advising that insurance coverage was not automatic” and providing the subcontractor with an enrollment form for the CCIP. Ultimately, the subcontractor “declined to comply with the request,” stating that the subcontractor would "not participate in paying any wrap insurance premiums" – because the subcontractor had its own insurance.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
In One of the First Civil Jury Trials to Proceed Live in Los Angeles Superior Court During Covid, Aneta Freeman Successfully Prevailed on Behalf of our Client and Obtained a Directed Verdict and Non-Suit
July 05, 2021 —
Aneta B. Freeman – Chapman Glucksman Dean & Roeb News AlertIn one of the first civil jury trials to proceed live in Los Angeles Superior Court during Covid, Aneta Freeman obtained a rare directed verdict and nonsuit in a complex, high exposure action, after seven days of trial. The dismissal was obtained after the parties rested after the liability phase of the bifurcated trial.
Ms. Freeman represented a general contractor in an action in which Plaintiff alleged that the general contractor and the County of Los Angeles (which was dismissed earlier on statutory immunity grounds) created a dangerous condition when they allegedly allowed mosquitos to breed in 2015 during construction at a flood retention basin in Marina Del Rey.
Plaintiff contracted West Nile Virus, and subsequently developed myasthenia gravis and a myriad of other conditions and ailments. Plaintiff relied heavily on a 2015 report from the Los Angeles West Vector Control District which suggested that the construction was the source of mosquitos which resulted in a “cluster” of West Nile Virus cases in the Marina Del Rey and surrounding areas.
In pretrial motions, Ms. Freeman successfully excluded that report, opinion testimony from the vector control former executive director, narrowed the scope of plaintiff’s entomologist testimony, and excluded Brad Avrit from testifying for the Plaintiff on construction standard of care.
The matter proceeded with a stipulated a 10 person jury, and all participants socially distanced and masked throughout the trial. Witnesses appeared live, with the exception of Plaintiff’s entomologist, portions of whose video deposition were played.
Following seven days of trial after both parties rested, Judge Mark Young granted the general contractor’s nonsuit and also, in the alternative, a directed a verdict for our client.
Plaintiff had demanded $10,000,000 of the County and the general contractor globally prior to trial, and $5,000,000 from the general contractor. The general contractor issued two CCP 998s, which were ignored by Plaintiff.
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Aneta B. Freeman, Chapman Glucksman Dean & RoebMs. Freeman may be contacted at
afreeman@cgdrlaw.com
Traub Lieberman Recognized in 2022 U.S. News – Best Lawyers “Best Law Firms”
November 15, 2021 —
Traub LiebermanTraub Lieberman has been listed in the 2022 U.S. News – Best Lawyers “Best Law Firms”. The firm has been named as Metropolitan Tier 2 in St. Petersburg, FL for Appellate Practice and as Metropolitan Tier 2 in West Palm Beach, FL for Personal Injury Litigation – Defendants.
The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys, and review of additional information provided by law firms as part of the formal submission process. Please
click here to learn more about the methodology for selection.
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Traub Lieberman
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Be a Good Neighbor: Techniques to Mitigate the Risk of Claims from Adjacent Landowners
December 07, 2020 —
Joshua Levy, Josh Neudorfer & Madeleine Bailey - Construction ExecutiveIn May 2020, a real estate developer performing excavation work in New York was sued by a neighboring property owner for property damage. A court overturned an injunction preventing the developer from continuing excavation work after reviewing a preconstruction assessment that showed the damage to the neighboring property was preexisting—not caused by the excavation (see Feldman v. 3588 Nostrand Ave. LLC as an example)
A preconstruction assessment is one of the most important tools in the arsenal of a developer protecting itself from neighbors bringing claims for property damage. Part two of this series will review the benefits of risk mitigation tools recommended for developers such as postconstruction assessments and monitoring during construction.
Preconstruction Assessment Overview
A preconstruction assessment is a review of a property adjacent to a site where demolition and/or construction activities are to take place. The goal of the assessment is to establish baseline conditions by conducting an inspection of buildings and infrastructure, including identification of existing damage to improvements, so that causation of any alleged damages can be more easily determined.
Reprinted courtesy of
Joshua Levy, Josh Neudorfer & Madeleine Bailey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Levy may be contacted at joshua.levy@huschblackwell.com
Mr. Neudorfer may be contacted at jneudorfer@thesigmagroup.com
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FDOT Races to Re-Open Storm-Damaged Pensacola Bridge
April 12, 2021 —
Jim Parsons - Engineering News-RecordBuffeted by hurricanes, northwest Florida’s largest-ever infrastructure effort is finally seeing the light at the end of the storm. The three-mile-long bridge across Pensacola Bay is expected to reopen to traffic this spring after an ongoing replacement effort abruptly became an emergency repair job as well.
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Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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