Nebraska Joins the Ranks—No CGL Coverage for Faulty Work
September 17, 2014 —
Craig Martin – Construction Contractor AdvisorThe Nebraska Court of Appeals has ruled that a home builder that fails to adequately compact the soil does not have insurance coverage to repair damages to the home caused by the settling soil. In “insurance speak”, there was no occurrence to trigger coverage.
In this case, Cizek Homes, Inc. v Columbia National Insurance Company, a home builder contracted with a buyer to build a house. A lot was selected and the home was built. After the buyer moved in, the house started to settle, causing damage to the house. The buyer told the builder about these problems and the builder agreed to fix the problems. The builder also contacted its insurance company and requested coverage for the buyer’s claim. The insurer rejected the claim, determining that the buyer’s claim was not covered by the builder’s Commercial General Liability (CGL) insurance.
The insurer then filed suit asking the court to interpret the insurance policy and to determine whether the CGL insurance covered the claim. The court looked to the buyer’s allegations that the builder failed to construct the home in accordance with accepted construction and industry standards and that the builder was negligent in designing and constructing the home. The builder admitted that it was obligated to pay for the costs of repairs, but denied that it was negligent in constructing the home.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Inverse Condemnation and Roadwork
October 09, 2023 —
David R. Cook Jr. - Autry, Hall & Cook, LLPThe following case, issued yesterday by the Georgia Supreme Court, addresses the accrual of the statute of limitations on a claim of inverse condemnation based on nuisance.
Wise Bus. Forms, Inc. v. Forsyth Cnty., S22G0874, 2023 WL 6065278 (Ga. Sept. 19, 2023)
We granted certiorari in this case to clarify the standards for determining when a claim for inverse condemnation by permanent nuisance accrues for purposes of applying the four-year statute of limitation set forth in OCGA § 9-3-30 (a).
[. . .]
Permanent nuisance cases vary in relation to when the alleged harm to a plaintiff’s property caused by the nuisance becomes “observable” to the plaintiff. Forrister, 289 Ga. at 333 (2), 711 S.E.2d 641. In some cases, the harm to the plaintiff’s property is immediately observable “upon the creation of the nuisance.” Id. For example, where a landowner or governmental agency “erects a harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that pollutes a stream,” and it is immediately obvious that the structure or activity interferes with the plaintiff’s interests, the plaintiff must file “one cause of action for the recovery of past and future damages caused by [the] permanent nuisance” within four years of the date the structure is completed or the harmful activity is commenced. Id. at 333-336 (2) and (3), 711 S.E.2d 641 (citing Restatement (Second) of Torts §§ 899 and 930). Phrased another way, where the “construction and continuance” of the permanent nuisance at issue is “necessarily an injury, the damage is original, and may be at once fully compensated. In such cases[,] the statute of limitations begins to run upon the construction of the nuisance.” City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994 (1897).
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
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).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Fourth Circuit Rejects Application of Wrap-Up Exclusion to Additional Insured
December 11, 2018 —
K. Alexandra Byrd & Samantha M. Oliveira - Saxe Doernberger & Vita, P.C.Utilizing an owner-controlled or contractor-controlled insurance program (collectively known as “wrap-ups”) can reduce claims, save costs, and give owners and general contractors comfort in knowing their project is adequately insured. However, problems often arise when a subcontractor doesn’t enroll in the wrap-up and, instead, agrees to provide additional insured coverage to the owner and general contractor on the subcontractor’s own general liability policy. One of those problems is the prevalence of wrap-up exclusions on subcontractors’ general liability policies. If the wrap-up exclusion is too broadly drafted, the exclusion can eliminate coverage for the general contractor and owner even when the subcontractor is not enrolled in the wrap-up.
Reprinted courtesy of
K. Alexandra Byrd, Saxe Doernberger & Vita, P.C. and
Samantha M. Oliveira, Saxe Doernberger & Vita, P.C.
Ms. Byrd may be contacted at kab@sdvlaw.com
Mr. Oliveira may be contacted at smm@sdvlaw.com
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Customer’s Agreement to Self-Insure and Release for Water Damage Effectively Precludes Liability of Storage Container Company
December 16, 2019 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Kanovsky v. At Your Door Self Storage (No. B297338; filed 11/25/19), a California appeals court held that a waiver of liability and agreement to self-insure in a storage container contract barred coverage for water damage to goods stored in the container.
In Kanovsky, plaintiffs contracted for portable storage containers when moving. They loaded their washing machine into one of the containers without checking whether it was fully drained. They locked the containers and reopened them four years later to discover water damage to the contents. They sued the storage company, alleging causes of action for breach of contract; tortious breach of covenant; negligence; and violation of the Consumer Legal Remedies Act, Civil Code section 1750. The storage company’s insurer intervened and moved for summary judgment, which was granted.
The appeals court affirmed. The storage company’s contract contained a release of liability stating that personal property was stored “at the customer’s sole risk” and the owners “shall not be liable for any damage or loss,” including water damage. Further, the contract stated that the containers were not waterproof, and again that the storage company was not liable for water damage. The contract attached an addendum further stating that the owner was “a landlord renting space, is not a warehouseman, and does not take custody of my property.” The addendum went on with an acknowledgement that the owner: “2. Is not responsible for loss or damage to my property; 3. Does not provide insurance on my property for me; and 4. Requires that I provide my own insurance coverage or be ‘Self-Insured’ (personally assume risk of loss or damage).”
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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No Signature? Potentially No Problem for Sureties Enforcing a Bond’s Forum Selection Clause
March 21, 2022 —
Brian C. Padove - ConsensusDocsOne of the foundational tenets of contract law is that a party may only be bound by terms they agree to, or in other words, if the party did not sign a contract, that party cannot be bound by the terms thereof. While this principle is generally unwavering, there are certain situations in which a non-signatory to a contract may still be bound by the terms of a contract.
In particular, this non-signatory issue may arise when a payment bond claimant makes a bond claim, subsequently files a lawsuit, but the bond contains a forum selection clause different than the venue of the lawsuit and the surety seeks to enforce the bond’s forum selection clause. For example, the claimant may have filed its lawsuit against the surety in federal court, even though the bond provides language specifically mandating that no lawsuit shall be commenced by any claimant other than in a state court where the project is located. Thus, the question then becomes, can the surety enforce the forum selection clause against the claimant when the claimant did not sign the bond and/or never agreed to the terms thereof? The short answer, it depends (yes, that is a very lawyer-like answer). Given recent case law over the past decade, however, the surety has a strong argument in favor of enforcement of the forum selection clause.
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Brian C. Padove, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)Mr. Padove may be contacted at
bpadove@watttieder.com
Massive Danish Hospital Project Avoids Fire Protection Failures with Imerso Construction AI
December 23, 2023 —
Aarni Heiskanen - AEC BusinessEnsuring regulatory compliance of firewall constructions is getting a high-tech boost. Over the past 16 months, the construction team responsible for the iconic new Nyt Hospital Nordsjælland near Copenhagen used Imerso construction AI technology to achieve remarkable results. By using Imerso, the team enhanced work productivity while preventing costs and delays worth €5.2 million during the construction of the superstructure.
Inspired by this success, the team led by Project Manager Anders Kaas has since been eager to explore the potential of the technology in other areas. The opportunity arose to address a topic that has traditionally posed significant challenges and expenses in numerous construction projects – ensuring regulatory compliance of fire barriers and firewall constructions.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Construction Delays: Which Method Should Be Used to Calculate Delay?
July 25, 2021 —
David Adelstein - Florida Construction Legal UpdatesIf you need to prove and allocate construction project delays, you should engage a scheduling consultant qualified with CPM (critical path method) analysis. You should also engage counsel to assist in preserving your rights, as well as presenting and maximing your arguments for delay.
There are numerous methodologies used to quantify and allocate delay. You want to discuss the most effective analysis for your case and facts including whether you want/should use a forward-looking prospective analysis or a backward-looking retrospective analysis that factors in as-built data. In doing so, you want to make sure you understand the pros and cons of each methodology including the bases to attack the methodology that will be subject to cross-examination. The five primary CPM methodologies are as follows:
- As-Planned Versus As-Built. This methodology compares the as-planned baseline schedule to an as-built schedule reflecting progress to assign delay. An as-built schedule that reflects progress includes actual start dates, finish dates, and durations. The actual dates and durations are compared with the as-planned dates and durations on the baseline schedule to determine delay. Under this methodology, the delay impact is determined retrospectively.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
