Toll Brothers Faces Construction Defect Lawsuit in New Jersey
October 10, 2013 —
CDJ STAFFToll Brothers is facing a construction defect lawsuit from homeowners in West Windsor, New Jersey. The homebuilding company had a lengthy battle with the town over its intention to build the community they named the Estates at Princeton Junction, now its residents are alleging defects in the construction of their homes and the common infrastructure. The community is close to Princeton University, parts of which are also in West Windsor.
Toll Brothers states that they are “working very closely with the HOA Board to investigate the claims that have been alleged in the lawsuit.” Andrea Marushack, the spokesperson for Toll Brothers would not elaborate due to the lawsuit. Among the allegations are claims that the townhomes in the development are prone to water intrusion. The complaint also claims that there were defects in the construction of sidewalks, roads, and other common features.
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Illinois Appellate Court Finds That Damages in Excess of Policy Limits Do Not Trigger Right to Independent Counsel
June 22, 2020 —
Jason Taylor - Traub LiebermanUnder Illinois law, an insurer’s duty to defend includes the right to control the defense, which allows insurers to protect their financial interest in the outcome of the litigation. However, where a conflict of interest exists, the insured, rather than the insurer, is entitled to assume control of the defense of the underlying action. If this occurs, the insurer satisfies its obligation to defend by reimbursing the insured for the cost of defense provided by independent counsel selected by the insured. What circumstances and situations arise to the level of an actual conflict of interest between the insurer and insured are often grounds for dispute.
In Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Co. of America, 2020 IL App (1st) 182491 (Apr. 7, 2020), the Illinois Appellate Court addressed whether damages awarded by a jury in excess of the policy limits were sufficient to trigger a right to independent counsel for post-trial and appellate proceedings. According to the Illinois Appellate Court, at least under the facts of the Ryerson case, the answer is “no.”
In Ryerson, Nancy Hoffman sued Ryerson for injuries sustained in a tractor-trailer accident. Ryerson tendered the suit to its primary insurer, Travelers, and its umbrella insurer, Illinois National. The policy limits were $2 million and $25 million, respectively. A jury found in favor of Hoffman for over $27.6 million in damages, and Ryerson appealed.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Goldberg Segalla Welcomes William L. Nimick
February 07, 2022 —
Goldberg Segalla LLP(RALEIGH, N.C.)—Goldberg Segalla added William L. Nimick to the firm's Construction Litigation and Counsel group in Raleigh. Nimick was previously with The Law Offices of Stephen R. Paul in Raleigh.
Nimick is an experienced litigator who focuses his practice on counseling and defending corporate entities, insurers, contractors, and subcontractors in a range of liability claims, including those alleging construction defect, personal injury, property damage, premises liability, and more. Nimick draws on a background in civil litigation, personal injury and wrongful death, workers' compensation, and subrogation. He has handled subrogation claims across North Carolina, including construction defects, motor vehicle accidents, product liability lawsuits, and large fire losses.
Nimick earned his bachelor's degree at the University of North Carolina at Wilmington and his juris doctor at the Campbell University Norman Adrian Wiggins School of Law.
About Goldberg Segalla
Goldberg Segalla is a national civil litigation firm with more than 20 offices in 10 states spanning major metro markets across the U.S., providing strategic coverage wherever our clients do business. As a firm of experienced litigators and trial attorneys, Goldberg Segalla's capabilities span business and commercial disputes, employment and labor, insurance coverage, product liability, and more. Today, our more than 400 attorneys are trusted counselors to public and private clients in key sectors and industries including construction and energy, transportation, manufacturing, retail and hospitality, and insurance. To learn more, visit goldbergsegalla.com or follow us on
LinkedIn,
Facebook, and
Twitter.
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Hunton Insurance Recovery Partner Michael Levine Quoted on Why Courts Must Consider the Science of COVID-19
March 15, 2021 —
Latosha M. Ellis & Matt Revis - Hunton Insurance Recovery BlogOne year into the COVID-19 pandemic, courts have issued hundreds of rulings in COVID-19 business interruption lawsuits, many favoring insurers. Yet those pro-insurer rulings are not based on evidence, much less expert opinion evidence. For insurers, ignorance is bliss.
Despite early numbers in federal courts favoring insurers (state court decisions actually favor policyholders), the year ahead holds promise for policyholders. Fundamental science is the key. Indeed, as researchers continue to broaden their knowledge about COVID-19, it has become increasingly clear that scientific evidence supports coverage for policyholders’ claims.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Matt Revis, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
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Robinson+Cole’s Amicus Brief Adopted and Cited by Massachusetts’s High Court
July 31, 2024 —
Erica Whaley - Construction Law ZoneEarlier this year, the
Associated Subcontractors of Massachusetts hired Robinson+Cole attorney
Joseph Barra to submit an amicus brief to the Massachusetts Supreme Judicial Court for consideration in the appeal pending before it in
Business Interiors Floor Covering Business Trust v. Graycor Construction Co., Inc. In its June 17, 2024 decision in that case, the Court interpreted the Massachusetts Prompt Pay Act, which applies to private construction projects and “requires that parties to a construction contract approve or reject payment within” an allotted time period and in compliance with certain procedures else such payments will be deemed approved. Two years ago, the Massachusetts Appeals Court, in
Tocci Building Corp. v. IRIV Partners, LLC, decided that an owner who fails to timely advise its general contractor of the reasons as to why it was withholding payment, coupled with failure to certify that such funds are being withheld in good faith, violates the Prompt Pay Act and makes the owner liable for funds owed.
[1] However, the Tocci Building Court left open the question of whether one who violates the Prompt Pay Act forfeits its substantive defenses to non-payment, such as fraud, defective work, or breach of material obligation of the contract.
The facts of Business Interiors involve a general contractor, Graycor, which subcontracted Business Interiors to perform certain flooring work for a movie theatre in Boston’s North End. When Graycor failed to formally approve, reject, or certify, in good faith, its withholding of payment of three of Business Interiors’ applications for payment as prescribed by the Prompt Pay Act, Business Interiors brought suit alleging, among other things, breach of contract. Business Interiors then moved for summary judgement arguing that Graycor’s failure to comply with the Act rendered it liable for the unpaid invoices.
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Robinson + Cole
New Washington Law Nixes Unfair Indemnification in Construction Contracts
April 25, 2012 —
Douglas Reiser, Builders Council BlogContractual fairness ? it is part of my mantra. If you read the blog, you probably know that I preach brevity, balance and clarity in contracting. The State of Washington did well to finally eliminate something that has angered me for quite some time ? unfair indemnification.
One of my favorite construction contract revisions is mutual indemnification. Many “up the chain” contractors and owners are going to stick you with a unilateral indemnification clause that protects them for just about everything, including their own fumbling of a project. Adding mutual indemnification provides some balance, and keeps parties reliant upon each other for success on the job site.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Insurer Cannot Abandon Defense Agreement on Underlying Asbestos Claims Against Insured
June 12, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that the insurer continued to be bound by a defense agreement entered with the insured who merged with another company. Continental Ins. Co. v. Neles-Jamesbury, Inc., 2023 U.S. Dist. LEXIS 52521 (D. Mass. March 28, 2023).
In 1990, Neles-Jamesbury became the sucessor by merger to the liabilities of Jamesbury Corp. and Neles, Inc. The companies were both in the business of manufacturing and selling valves.
Continental issued two primary CGL policies to Neles, Inc. from 1986 to 1988. After the merger, Neles-Jamesbury was involved in numerous lawsuits that alleged bodily injury from asbestos exposure. Due to the continuing question of whether the policies created duties for Continental, the parties entered into a 2007 Cost Sharing Agreement, which served to clarify and define their respective obligations and coverage in the lawsuits. The agreement noted that Continental wanted to avoid the expense and uncertainties of litigation over defense obligations.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Underpowered AC Not a Construction Defect
November 07, 2012 —
CDJ STAFFAfter buying a home in Louisiana, Mike Gines determined that the home’s air conditioning unit was insufficient to maintain an appropriate temperature. He contacted the home builder, D.R. Horton, Inc., which worked with the air conditioning installer, Reliant Heating & Air Conditioning, in order to repair the system. When the problems persisted, Gines filed a class action petition against Horton and Reliant in state court. Horton and Reliant moved the case to the federal courts, whereupon Gines asserted the defendants were in violation of the Louisiana New Home Warranty Act (NHWA). Horton stated that the claim under the NHWA was invalid, because Gines had not alleged actual physical damage to his home.
The district court granted Horton’s motion to dismiss. Gines sought a reversal from the Fifth Circuit Court of Appeals and sought to have two questions of state law addressed by the Louisiana Supreme Court.
The district court ruled that the NHWA was the “sole remedy under Louisiana law for a purchaser of a new home with construction defects. Gines argued that court erred in this, but also conceded that this was the conclusion of the Louisiana Supreme Court.
Further, Gines argued that a provision in the NHWA that allows the inclusion of construction defects that do not cause damage was satisfied by paragraph 6 of the contract. The court noted that Gines did not attach a copy of the contract to either the original or amended complaint, and so the court does not need to address these claims. However, the court cautioned that if a copy had been included, they still would have rejected the claim, as “the cited language does not indicate a waiver of the physical damage requirement.” They also note that “paragraph 13 of the contract shows that Gines was aware to the absence of any such waiver in the contract.”
The court concludes that “the moral of this story is that in order to avoid the harsh result that has obtained here, the buyer of a newly constructed home in Louisiana should seek to obtain in the contract of sale an express waiver of the actual damage requirement of the NHWA.” The appeals court affirmed the decision of the circuit court and denied the application to certify questions to the Louisiana Supreme Court.
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