CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer Fails to Establish Prejudice Due to Late Notice

October 17, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Summary judgment awarded to the insurer was reversed because the insurer presented no evidence of prejudice caused by untimely notice. Perez v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 5435 (Fla. Ct. App. Aug. 10, 2022). The insureds' home suffered water damage due to Hurricane Irma around September 10, 2017. A claim was submitted to Citizens on November 27, 2018. Citizens had an independent adjuster inspect, but then denied the claim due to untimely notice. The insureds sued and Citizens moved for summary judgment. Citizens argued it was prejudiced because it could not confirm the cause of the loss or the property damage attributed to it. The court agreed that the insureds' notice was untimely. The insureds were notified by tenants renting the property that leaks appeared around the time of Hurriane Irma. The policy language, however, placed the burden to rebut the presumption of prejudice caused by late notice on Citizens. Whether the insurer was prejudiced was a question of fact. Citizens failed to demonstrate any prejudice due to the untimely notice. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Blog Completes Fifteenth Year

December 13, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Insurance Law Hawaii completes its fifteenth year of existence this month. We began posting in December 2007, 1656 posts ago. We strive to keep readers abreast of new developments in insurance-related cases from Hawaii and across the country. Coverage issues in the past year have again been dominated by COVID-19, business interruption, construction defect, and cyber claims. This trend will likely continue over the next year and we will do our best to track developments. Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert Mr. Eyerly may be contacted at te@hawaiilawyer.com Read the full story... Read the court decision
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Drone Operation in a Construction Zone

August 17, 2020 — Mark R. Berry & Freddy X. Muñoz - Peckar & Abramson
The potential uses of unmanned aircraft systems (UAS) in the construction industry continue to expand as new technologies enter the market and construction companies realize UAS can perform unique tasks at tremendous cost savings. The full technological capabilities of UAS are, however, limited by law for public safety reasons. UAS share airspace with traditional passenger, military and cargo aircraft, and are potential hazards for humans below. The risk of potential catastrophic collisions has led to a careful approach to the adoption of this technology. All U.S. airspace is exclusively regulated by the Federal Aviation Administration (FAA), and therefore, most drone regulation originates from this agency. Many states and localities have also enacted additional limits on UAS operations, and many of these nonfederal regulations are presently on unsure footing after a federal court ruling in Singer v. Newton invalidated a local regulation that conflicted with FAA regulations. What is clear is that all commercial UAS operations must comply with FAA regulations. Any drone operation conducted by any private company, even through use of an employee’s personal drone, would constitute commercial operation subject to regulation. Reprinted courtesy of Mark R. Berry, Peckar & Abramson and Freddy X. Muñoz, Peckar & Abramson Mr. Berry may be contacted at mberry@pecklaw.com Mr. Muñoz may be contacted at fmunoz@pecklaw.com Read the court decision
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Client Alert: Absence of a Court Reporter at a Civil Motion Hearing May Preclude Appellate Review

November 26, 2014 — Angela S. Haskins & Blythe Golay - Haight Brown & Bonesteel LLP
A California Court of Appeal expressed its concern over the due process implications of reviewing a trial court's decision that incorporated reasons that were not documented due to the absence of a court reporter. In Maxwell v. Dolezal (No. B254893, filed 11/4/14), the court cautioned that although the lack of a transcript did not preclude its review of an order sustaining a demurrer, the case was an exception because the operative complaint and demurrer were sufficient to permit effective appellate review. The plaintiff in Maxwell, acting in pro per, had filed an action for invasion of privacy and breach of contract. The plaintiff alleged that the defendant had used his photograph and website without his consent and that he did not receive the money, food and housing in exchange for the intellectual property rights per their agreement. The defendant demurred on the grounds that the complaint was uncertain and it could not be ascertained from the pleading whether the contract was written, oral, or implied. At the hearing on the demurrer, no court reporter was present. Nonetheless, the trial court's minute order explicitly sustained the demurrer "[f]or the reasons stated in open court," without further elaborating. The trial court also denied the plaintiff further leave to amend on the ground that he was unable to articulate in open court a reasonable basis for any additional allegations that would remedy the deficiencies. The court of appeal noted that it was "profoundly concerned about the due process implications of a proceeding in which the court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court." Reprinted courtesy of Angela S. Haskins, Haight Brown & Bonesteel LLP and Blythe Golay, Haight Brown & Bonesteel LLP Ms. Haskins may be contacted at ahaskins@hbblaw.com; Ms. Golay may be contacted at bgolay@hbblaw.com Read the court decision
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Repair of Part May Necessitate Replacement of Whole

February 10, 2012 — CDJ STAFF

Judge Gleuda E. Edmonds, a magistrate judge in the United States District Court of Arizona issued a ruling in Guadiana v. State Farm on January 25, 2012. Judge Edmonds recommended a partial summary judgment in favor of the plaintiff.



Ms. Guandiana’s home had water damage due to pluming leaks in September 2004. She was informed that polybutylene pluming in her house could not be repaired in parts “it must be completely replaced.” She had had the plumbing replaced. State Farm denied her claim, arguing that “the tear-out provision did not cover the cost of accessing and replacing those pipes that were not leaking.”



In September 2007, State Farm filed a motion to dismiss. The court rejected this motion, stating that “If Guadiana can establish as a matter of fact that the system that caused the covered loss included all the pipes in her house and it was necessary to replace all the pipes to repair that system, State Farm is obligated to pay the tear-out costs necessary to replace all the pipes, even those not leaking.”



In March 2009, State Farm filed for summary judgment, which the court granted. State Farm argued that “the tear-out provision only applied to ‘repair’ and not ‘replace’ the system that caused the covered leak.” As for the rest of the piping, State Farm argued that “the policy does not cover defective materials.”



In December 2011, Ms. Guadiana filed for summary judgment, asking the court to determine that “the policy ‘covers tear-out costs necessary to adequately repair the plumbing system, even if an adequate repair requires replacing all or part of the system.”



In her ruling, Judge Edmonds noted that Ms. Guadiana’s claim is that “the water damage is a covered loss and she is entitled to tear-out costs necessary to repair the pluming system that caused that covered loss.” She rejected State Farm’s claim that it was not obligated to replace presumably defective pipes. Further, she rejected State Farm’s argument that they were only responsible for the leaking portion, noting “Guadiana intends to prove at trial that this is an unusual case where repair of her plumbing system requires replacement of all the PB plumbing.”



Judge Edmonds concluded by directing the District Court to interpret the tear out issue as “the tear-out provision in State Farm’s policy requires State Farm to pay all tear-out costs necessary to repair the plumbing system (that caused the covered loss) even if repair of the system requires accessing more than the leaking portion of the system.”

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Changes to Judicial Selection in Mexico Create a New Case for Contractual ADR Provisions

November 25, 2024 — Juan Pablo Sandoval - The Dispute Resolver
The Mexican Congress recently discussed and approved a Constitutional Amendment called the “Judiciary Amendment” which was ironically published in the Official Gazette on September 15, 2024, the day before Mexican Independence Day. With this Judiciary Amendment, the Mexican Congress determined that Federal Judges, Federal Magisters and the Ministers of the Supreme Court will now be elected through direct and popular election. Before the Judiciary Amendment, Federal Judges and Magisters used to have a judicial career; many of them started as law clerks and were promoted step by step until becoming Judge or Magister. Ministers of the Supreme Court were appointed by the Senate through an election of three candidates designated by the President. Read the court decision
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Reprinted courtesy of Juan Pablo Sandoval, COMAD, S.C.
Mr. Sandoval may be contacted at jpsandoval@comad.com.mx

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Bank of America’s Countrywide Ordered to Pay $1.3 Billion

July 30, 2014 — Patricia Hurtado – Bloomberg
Bank of America Corp.’s Countrywide unit was ordered to pay $1.3 billion in penalties for defective mortgage loans it sold to Fannie Mae (FNMA) and Freddie Mac in the run-up to the 2008 financial crisis, a little more than half of what the U.S. had requested. U.S. District Judge Jed Rakoff in Manhattan issued the civil penalty against the Charlotte, North Carolina-based bank today in the first mortgage-fraud case brought by the federal government to go to trial. Countrywide and Rebecca Mairone, a former executive with the mortgage lender, were found liable in October for selling thousands of bad loans to the two government-sponsored enterprises. Mairone was ordered today to pay $1 million. Read the court decision
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Reprinted courtesy of Patricia Hurtado, Bloomberg
Ms. Hurtado may be contacted at pathurtado@bloomberg.net

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Incorporation, Indemnity and Statutes of Limitations, Oh My!

January 19, 2017 — Christopher G. Hill – Construction Law Musings
We all know that the contract is king in Virginia. We also know that Virginia will allow for a so called “incorporation” clause that will allow for “flow down” of certain prime contract provisions in a way that will make those provisions applicable to subcontractors. We also know that a claim for breach of contract or other contractual claim does not last forever due to certain statutes of limitation found in the Code of Virginia. What happens when all of these elements crash together in one place leading to litigation? Well, a relatively recent case from the Virginia Supreme Court gives at least a partial answer. In Hensel Phelps Construction Company v Thompson Masonry Contractor, Inc, the Virginia Supreme Court considered a claim that arose from construction at Virginia Tech by Hensel Phelps. The construction concluded in 1998 (remember that date). The Prime Contract included language concerning a one year “Guarantee of Work” as well as fairly typical Warranty of Workmanship” language. However the Prime Contract also stated that the one year guaranty term did nothing to affect any other limitations period for any other action pursuant to the Prime Contract (this is important as well because Virginia Tech was not subject to any statute of limitations due to its status as an agency of the Commonwealth of Virginia). Final payment was made to Hensel Phelps and subsequently to the subcontractors in 1999. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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