DC Wins Largest-Ever Civil Penalty in US Housing Discrimination Suit
November 15, 2022 —
Kriston Capps - BloombergThree real estate companies operating in Washington, DC, will pay record-breaking penalties in a suit brought by the city for illegally discriminating against tenants who use Section 8 vouchers and other forms of housing assistance.
The attorney general for the District of Columbia, Karl Racine, announced on Thursday a settlement for $10 million. While fair housing cases involving lenders have resulted in larger compensation payouts, $10 million is the largest civil penalty ever levied in a housing discrimination case.
In 2020, the city sued several entities — DARO Management Services, DARO Realty and New York-based parent company Infinity Real Estate, as well as several executives — over housing practices in the District. DARO Management operates and rents some 1,200 residential units in more than a dozen apartment buildings spread across Wards 1, 2 and 3, which include DC’s more affluent areas. (DARO Realty owns the properties, DARO Management operates them, and Infinity owns both affiliates.)
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Kriston Capps, Bloomberg
Drop in Civil Trials May Cause Problems for Construction Defect Cases
August 27, 2013 —
CDJ STAFFOver the last fifty years, the number of lawsuits that have been settled by trial have dropped sharply, according to Kenneth Childs, writing in the Idaho Business Review. Childs notes that in 1962, 11.5% of federal civil cases were resolved at trial, but in 2002, only 1.8 % percent went to trial. He makes the supposition that, due to their complexity, construction defect trials are even less likely to be resolved at trial.
Instead, they are being resolved in mandatory arbitration. Views on arbitration have changed over the years and the courts have gone from what he describes as “somewhat hostile to it” to embracing, encouraging, and even mandating it.
Childs notes there are some problems to this climate of arbitration. He notes that arbitrators can “operate by their own rules and according to their own standards.” The decisions made by arbitrators “are not subject to appellate review,” which allows arbitrators “to ignore the law entirely.”
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Incorrect Information Provided on Insurance Application Defeats Claim for Coverage
July 31, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventh Circuit affirmed the district court's finding of no duty to defend or indemnify because of an answer on the insured's application for insurance. Snell v. United Specialty Ins. Co., 2024 U.S. App. 12733 (11th Cir. May 28, 2024).
Snell was hired by a family, the Westons, to turn an above ground trampoline into a ground level trampoline. This involved various tasks like tree pruning and removal, installation of shrubs, trees, and sod, and setting up a sprinkler irrigation system. The trampoline aspect of the project involved site work to make a place for the trampoline and assembly and installation of the trampoline. The site work included excavation of a pit, installation of a drain and drainage sand, excavation of a trench to install a drainage pipe, installation of the drainage pipe and of a drain pump, construction of concrete block retainer walls and installation of a wood cap on the retainer walls. Then, Snell unboxed the trampoline, assembled it, and lowered it into the pit.
A few years later, a visitor to the Weston home sued the Westons for injuries to his daughter suffered on the trampoline. The complaint alleged the daughter was injured when she "fell off of the trampoline and struck her face on the wooden board" surrounding the tramline. The complaint was later amended to add Snell as a defendant.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Seven Coats Rose Attorneys Named to Texas Rising Stars List
March 12, 2014 —
Beverley BevenFlorez-CDJ STAFFSeven attorneys from Coats Rose were named to the “Texas Rising Stars list,” which is comprised of “the top up-and-coming attorneys in Texas for 2014,” according to a press release on PR Newswire. “Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection for this respected list is made by the research team at Super Lawyers.”
The Coats Rose attorneys named include “Charles Conrad, Jon Paul Hoelscher, Ryan Kinder, Matthew Moore and Timothy Rothberg in Houston; Brian Gaudet in League City; and Mason Hester in San Antonio.”
According to PR Newswire, “For more than 30 years, Coats Rose attorneys have worked with clients in construction/surety law, real estate law, commercial litigation of all types, municipal law, public finance, affordable housing, insurance law, labor and employment law, and governmental relations. Coats Rose is comprised of over 90 attorneys, with offices in Houston, Clear Lake, Dallas, Austin, San Antonio, and New Orleans.”
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Court Reminds Insurer that the Mere Possibility Of Coverage at the Time of Tender Triggers a Duty to Defend in a Defect Action
October 04, 2021 —
Jatin Patel - Newmeyer DillionIt has long been the law in California that an insurer’s duty to defend is broader than the duty to indemnify and that the mere possibility of coverage triggers a duty to defend. Nevertheless, insurers still periodically ignore this clear principle and attempt to narrow the scope of the duty to defend. Recently, a Federal District Court issued a reminder to a wayward insurer.
In Pacific Bay Masonry, Inc., v. Navigators Specialty Insurance Company, (N.D. Cal., Sept. 16, 2021, No. C 20-07376 WHA, 2021 WL 4221747 (“Pacific”)), the Court was asked to assess whether a tender of defense by a concrete masonry subcontractor to its insurer for a construction defect action required a defense. Pacific Bay Masonry, Inc. (“PBM”) installed concrete masonry units (also known as “CMUs”) at a new retail shopping center in Oakland, California. The subsequent owner of the retail center filed suit against the general contractor for alleged construction defects, including “efflorescence of roof deck at CMU wall” and “improper waterproofing and flashing of the CMU block wall." The general contractor filed a cross-complaint against PBM.
PBM tendered the defense of the case to Navigators Specialty Insurance Company (“Navigators”) along with copies of a preliminary defect list, a description of defects, interrogatory responses and an expert witness damage analysis. Navigators denied coverage and a duty to defend citing to the work product exclusion of the policy. PBM asked Navigators to reconsider. Navigators held firm on its denial. Two years later, PBM filed suit.
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Jatin Patel, Newmeyer DillionMr. Patel may be contacted at
jatin.patel@ndlf.com
Waive Your Claim Goodbye: Louisiana Court Holds That AIA Subrogation Waiver Did Not Violate Anti-Indemnification Statute and Applied to Subcontractors
May 23, 2022 —
Gus Sara - The Subrogation StrategistIn 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
OSHA’s Multi-Employer Citation Policy: What Employers on Construction Sites Need to Know
September 09, 2019 —
Phillip C. Bauknight - Construction ExecutiveMulti-employer worksites are a frequent occurrence in the construction industry as employees from various companies often occupy the same site while a project is being completed. While the need for employees from different companies may be necessary to perform the various tasks required by a project, the presence of multiple employers, and their employees, on the same worksite can result in an increased risk of safety hazards.
Companies performing construction work should be, and generally are, aware of OSHA’s ability to issue citations for workplace safety violations. What many companies may not know, however, is that OSHA’s ability to cite employers is not limited to workplace conditions that are unsafe only to that employer’s direct employees. Rather, OSHA also has the ability to cite an employer, and often does issue such citations, for conditions that could result in injury or death to another company’s employees.
The policy which provides OSHA with this citation ability is CPL 02-00-124 and is called the Multi-Employer Citation Policy (the “Policy”). Under the language of the Policy, OSHA has the ability to cite multiple employers for violations of the Occupational Safety and Health Act for the same hazardous workplace condition. Critically, responsibilities under the Policy do not depend on the employer’s job title but are determined by the employer’s role.
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Phillip C. Bauknight, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Bauknight may be contacted at
pbauknight@fisherphillips.com
Insurance Law Client Alert: California Appeals Court Refuses to Apply Professional Services Exclusion to Products-Completed Operations Loss
March 19, 2014 —
Valerie A. Moore and Chris Kendrick - Haight Brown & Bonesteel LLPIn North Counties Engineering v. State Farm (No. A133713, filed 3/13/14), State Farm insured an engineering company under CGL insurance that had a professional services exclusion and included products-completed operations (PCO) coverage. The owner of the engineering company, NCE, contracted with a winery to construct a dam and associated works. Also on the project was the owner's son, who had his own construction company, NCD. There were multiple contracts, both oral and written, variously naming one company or the other. The evidence later showed that the father performed hands-on work for the project.
After completion, the winery was sued over sediment and erosion caused by the dam. State Farm denied coverage on the ground that the professional services exclusion applied, as well as a mistaken belief that the policy had no PCO coverage. State Farm then changed its position and agreed to defend, but only going forward. The insured sued State Farm over past defense fees, alleging breach of contract and bad faith. The case went to trial and after testimony detailing State Farm's claim handling, the trial judge granted a nonsuit, finding that the professional services exclusion barred all coverage:
"[I]f you look at the pleadings, the legal pleadings and the contracts, the NCE role is, as the engineering company, the support company, and that company was overseeing the [sic] NCD to make sure that whatever they did was done right.... NCE is the expert on the job, the professional providing professional services, design and construction, and also overseeing the work of NCD, the son’s business, which is doing more of the physical activity.... That takes professional expertise and I think all of what Mr. Akerstrom did was professional.... It was this professional work, and not 'something incidental to their professional involvement' that gave rise to the underlying actions. In this situation, it’s not a malpractice or E and O policy. It’s a business policy, which has good benefits, but is subject to the professional services exclusion."
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Valerie A. Moore and
Chris Kendrick of Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com; Mr. Kendrick may be contacted at ckendrick@hbblaw.com
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