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DIRECTORY AND CAPABILITIES

White and Williams LLP Acquires 6 Attorney Firm

August 29, 2022 — White and Williams LLP
White and Williams LLP has announced the acquisition of a six-attorney law firm nationally known for their work in the surety and construction space. Located in Towson, MD, Baltimore County, the attorneys of Pike & Gilliss LLC will join White and Williams, marking the opening of the firm’s 11th location and extending the firm’s presence to Maryland, Washington DC and Virginia. Attorneys joining White and Williams include David Gilliss, who will serve as Managing Partner of the Towson office, Patrick Pike and Eric Korphage as partners, Joel Williams as Counsel, and Anthony Kikendall and Robert Kline as associates. “We are excited to make this longtime informal partnership official by joining forces,” said Gilliss. “Attorneys from White and Williams and Pike & Gilliss have had clients in common for over a decade and we often collaborate. This official coming together creates one of the leading surety practices in the country, offering clients a broader and more cohesive experience and extensive legal expertise.” Read the court decision
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Reprinted courtesy of White and Williams LLP

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Prime Contractor & Surety’s Recovery of Attorney’s Fees in Miller Act Lawsuit

February 02, 2017 — David Adelstein - Florida Construction Legal Updates
Can a claimant recover attorney’s fees in a Miller Act payment bond dispute even though the Miller Act does not contain a prevailing party attorney’s fee provision? Yes, if the underlying contract that formed the basis of the suit provided for attorney’s fees. What about a prime contractor and surety—can they recover their attorney’s fees if they prevail in a Miller Act payment bond claim and the underlying contract provides a basis for fees? The Eleventh Circuit Court of Appeals in U.S.A. f/u/b/o RMP Capital Corp. v. Turner Construction Co., 2017 WL 244066 (11th Cir. 2017) seemingly just answered this question in the affirmative when it reversed a lower court’s ruling that precluded a prime contractor and surety that prevailed in a Miller Act claim from recovering their attorney’s fees[.] Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite

February 06, 2019 — Gus Sara - The Subrogation Strategist
In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite. In Kohler Co., homeowners instituted a class action against Kohler, the manufacturer of water pressure and temperature regulating valves that were installed into their homes during original construction. The class action was filed on behalf of all owners of residential dwellings in California in which these Kohler valves were installed as part of original construction. The complaint asserted, among other claims, a cause of action under the Act. Kohler filed a motion for anti-class certification on the ground that causes of actions under the Act cannot be certified as a class action. The trial court denied the motion with respect to the Act but certified its ruling for appellate review. Kohler filed a petition with the Court of Appeals, arguing that certain sections of the Act explicitly exclude class action claims under the Act. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Breaking Down Homeowners Association Laws In California

April 03, 2019 — Lauren Hickey - Bremer Whyte Brown & O'Meara LLP
Purpose of HOAs Property ownership often combines elements of individual and common ownership interests. For example, a property owner may individually own his or her living quarters, but also own a common interest in amenities that are considered too expensive for a single homeowner to purchase individually (such as a pool, gym, or trash collection service). Properties with such elements usually take the form of apartments, condominiums, planned developments, or stock cooperatives (together known as “common interest developments” or “CIDs”). Whenever a CID is built, California law requires the developer to organize a homeowner association (or “HOA), which can take several different names, including “community association”. Initially, the developer relies on the HOA to market the development to prospective buyers. Once each unit in the development is sold, management of the HOA is passed to a board of directors elected by the homeowners. At that point, the primary purpose of the HOA shifts to maintenance of common amenities and enforcement of community standards. Dues/Assessments HOAs generally charge each homeowner monthly or annual dues to cover the cost of their services. HOAs may also charge special assessments to cover large, abnormal expenses, such as the cost of upgrades or improvements. The amount charged in dues and assessments is established by the HOA’s board of directors, within the limits set by the HOA’s governing documents and California Civil Code section 1366. Section 1366 provides that HOA dues may not be increased by more than 20 percent of the amount set in the previous year, and the total amount of any special assessments charged in a given year generally may not exceed 5 percent of the HOA’s budgeted expenses. Read the court decision
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Reprinted courtesy of Lauren Hickey, Bremer Whyte Brown & O'Meara LLP

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Procedural Matters Matter!

December 10, 2024 — Suzanne M. Nicholson - Wilke Fleury
As an appellate practitioner, I am keenly aware that sometimes, a procedural matter can doom what would otherwise be a meritorious issue for appeal. Trial attorneys are well-advised to check and double-check procedural rules and case law governing the issues in their cases. Here’s a few recent developments to be aware of. The record on appeal: electronic recordings now available in Santa Clara County. It should not be news to anyone that it is the appellant’s burden to produce an adequate record for appeal. That includes not just the written submissions to the trial court, but also reporter’s transcripts of all proceedings that could have a substantive impact on your case. If you do not have a court reporter present for your hearing, you will be struck trying your best to get an agreed statement or a settled statement should the case go up on appeal. Believe me, that can be a serious challenge. Any omissions or deficiencies are going to result in presumptions made against the appellant. Read the court decision
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Reprinted courtesy of Suzanne M. Nicholson, Wilke Fleury
Ms. Nicholson may be contacted at snicholson@wilkefleury.com

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NY State Appellate Court Holds That Pollution Exclusions Bar Duty to Defend Under Liability Policies for Claims Alleging Exposure to PFAS

February 01, 2022 — Robert F. Walsh & Paul A. Briganti - White and Williams LLP
On January 6, 2022, the New York Supreme Court, Appellate Division, Third Department, held that the “sudden and accidental” pollution exclusion (SAPE) and “absolute” pollution exclusion (APE) in liability policies relieved two insurers of a duty to defend the insured-manufacturer in connection with claims alleging damages as a result of exposure to perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are man-made chemicals within the group of per- and polyfluoroalkyl substances (PFAS). See Tonoga, Incorporated v. New Hampshire Insurance Company, No. 532546, 2022 N.Y. App. Div. LEXIS 105 (App. Div. 3rd Dep’t Jan. 6, 2022). In Tonoga, starting in 1961, the insured and its predecessors owned and operated a manufacturing facility in Petersburg, New York that produced materials coated with polytetrafluoroethylene (PTFE). Until 2013, the manufacturing process involved the use of PFOA and/or PFOS. In early 2016, excessive PFOA and/or PFOS concentrations were detected in Petersburg’s municipal water supply. Later that year, the New York Department of Environmental Conversation designated the insured’s facility a Superfund site, and the insured entered into a consent agreement that required it to assist in remedial measures. 2022 N.Y. App. Div. LEXIS 105, at *1-2. Reprinted courtesy of Robert F. Walsh, White and Williams LLP and Paul A. Briganti, White and Williams LLP Mr. Walsh may be contacted at walshr@whiteandwilliams.com Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Read the court decision
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Encinitas Office Obtains Complete Defense Verdict Including Attorney Fees and Costs After Ten Day Construction Arbitration

May 23, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Vik Nagpal and Associate Attorney Tim McNulty of the Encinitas office recently obtained a substantial victory on behalf of BWB&O’s client after a 10-day binding construction arbitration before a three-arbitrator panel of the American Arbitration Association. BWB&O’s client was sued by the Owner of a commercial office building related to a multimillion-dollar tenant improvement project in San Diego. The Owner asserted construction defect damages, delay damages, architectural negligence, fraudulent billing practices and consequential damages of $3.6 million dollars. BWB&O’s client claimed breach of contract damages against the owner for failure to pay invoices. The Owner who had substantial financial resources and a personal spite against the general contractor, unreasonably pursued the case with an extensive team of lawyers and experts. At an earlier full-day mediation, the owner rejected a reasonable settlement offer which included a settlement payment to the Owner and the client’s agreement to dismiss their affirmative claim for damages. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Coverage for Injury to Insured’s Employee Not Covered

June 10, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The employee exclusions in the employer's CGL and Umbrella policies barred coverage. Piatt v. Indiana Lumbermen's Mut. Ins. Co., 2015 Mo. LEXIS 32 (Mo. April 28, 2015). Linda Nunley was killed while working for Missouri Hardwood Charcoal, Inc. The kiln's large steel door had been removed and was leaning upright against another kiln when it blew over and crushed Ms. Nunley. Her family filed a wrongful death suit against Junior Flowers, the company's sole owner, director, and executive officer. The complaint alleged that Flowers was negligent in ordering employees to lean the kiln doors upright, even though he knew it was unsafe. The complaint further alleged that Flowers breached a personal duty of care owed to Ms. Nunley and that his actions were "something more" that a breach of the company's duty to provide a safe workplace. Flowers requested a defense under CGL and Umbrella policies issued by Lumbermen's. The policies insured Missouri Hardwood and its executive officers, but excluded liability for a work-related injury to an "employee of the insured." The policies also had a "separation of insureds" provision, stating that the insurance applied "separately to each insured against whom claim is made or suit is brought." Lumbermen's denied coverage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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