Float-In of MassDOT Span Sails, But Delay Dispute Lingers
December 08, 2016 —
Johanna Knapschaefer – Engineering News-RecordThe Massachusetts Dept. of Transportation and a contracting team are in discussions regarding fabrication issues that caused a two-year delay in the completion of a key crossing between Quincy and Weymouth. The full completion of the $244-million Fore River Bridge replacement, originally slated for Jan. 5, 2017, is now projected for February 2019.
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Johanna Knapschaefer, Engineering News-RecordENR may be contacted at
enr.com@bnpmedia.com
Public Projects in the Pandemic Pandemonium
September 07, 2020 —
Ashlynn E. Hutton, Michael J. Crook & Christian F. Torgrimson - Construction ExecutiveDespite the ongoing pandemic, states are opening up for business and establishing a new normal. This determination to move forward includes pushing public transportation projects full steam ahead. While this may be good news for certain industries, it may not be for commercial property owners hoping to see a slow down to public projects and avoid a taking of private property. As many grapple with new economic realities, we examine the approaches employed by states in the southeast to manage construction of public projects in this unprecedented time.
GEORGIA
The Georgia Department of Transportation (GDOT) is moving forward with all of its previously funded public projects, including the massive I-285 Top-End Project, designated as a “Major Mobility Project” for the Atlanta metro region. Affecting approximately 260 property owners along I-285 and Georgia Highway 400, environmental review of the project continues. GDOT anticipates a contract let date in 2022 and construction start in 2023. Like ocean liners, these projects don’t turn on a dime. Under the 2015 Transportation Funding Act, the budgeted funds cannot be shifted to other needs or projects due to economic shutdown. Once environmental review is complete, GDOT will approve the final design and move toward acquiring right-of-way from affected property owners.
Reprinted courtesy of
Ashlynn E. Hutton, Michael J. Crook & Christian F. Torgrimson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Allegations That COVID-19 Was Physically Present and Altered Property are Sufficient to Sustain COVID-19 Business Interruption Suit
May 24, 2021 —
Michael S. Levine & Joseph T. Niczky - Hunton Insurance Recovery BlogOn Wednesday, a federal judge in Texas denied Factory Mutual’s Rule 12(c) motion for judgment on the pleadings, finding that the plaintiffs adequately alleged that the presence of COVID-19 on their property caused covered physical loss or damage in the case of Cinemark Holdings, Inc. v. Factory Mutual Insurance Co., No. 4:21-CV-00011 (E.D. Tex. May 5, 2021). This is the third COVID-19-related business interruption decision from Judge Amos Mazzant since March, but the first in favor of a policyholder. Taken together, the three decisions have two key takeaways and provide a roadmap for policyholders in all jurisdictions.
First, the Cinemark decision recognizes that the alleged presence of COVID-19 viral particles that physically altered the policyholder’s property is sufficient under federal pleading standards and controlling state law. In its motion, FM relied on Judge Mazzant’s recent decision in Selery Fulfillment, Inc. v. Colony Insurance Co., No. 4:20-CV-853, 2021 WL 963742 (E.D. Tex. Mar. 15, 2021), which dismissed a lawsuit alleging that the policyholder’s losses were caused by government orders that closed its business, rather than from the actual presence of the virus on its property. The Court held that government orders alone do not constitute physical loss or damage, and declined to rule on whether the physical presence of the virus does. Judge Mazzant reached the same conclusion weeks later in Aggie Investments, L.L.C. v. Continental Casualty Co., No. 4:21-CV-0013, 2021 WL 1550479 (E.D. Tex. Apr. 20, 2021).
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Joseph T. Niczky, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Niczky may be contacted at jniczky@HuntonAK.com
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The Condominium Warranty Against Structural Defects in the District of Columbia
September 07, 2017 —
Nicholas D. Cowie - Maryland Condo Construction Defect Law BlogThe District of Columbia Condominium Act contains a statutory warranty that protects condominium associations and their unit owner members from structural defects in newly constructed and newly converted condominiums. The warranty is backed by a condominium developer’s bond, letter of credit, or other form of security from which monies can be drawn upon if the developer fails to make warranty repairs.
This article discusses how the warranty against structural defect works and how to make claims against the developer’s security to fund warranty repairs.
THE CONDOMINIUM WARRANTY AGAINST STRUCTURAL DEFECTS
Condominium developers in Washington DC are required by statute to warrant against structural defects in the condominium common elements and each condominium unit. District of Columbia Condominium Act (“DC Condo Act”) 42-1903.16(b).
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Nicholas D. Cowie, Cowie & Mott, P.A.Mr. Cowie may be contacted at
ndc@cowiemott.com
Prospective Additional Insureds May Be Obligated to Arbitrate Coverage Disputes
September 07, 2020 —
Danielle S. Ward - Balestreri Potocki & HolmesThe Court of Appeal closed out 2019 by ruling that an additional insured can be bound to the arbitration clause in a policy when a coverage dispute arises between that additional insured and the carrier. (Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal. App. 5th 834, 837.)
In 2009, Future Farmers of America (“Future Farmers”) entered into a license agreement with SMG Holdings Incorporated (“SMG”) to use the Fresno Convention Center. As part of the agreement, Future Farmers was required to secure comprehensive general liability (“CGL”) coverage and name SMG and the City of Fresno as additional insureds (“AI”) on its policies.
Future Farmers purchased a general liability policy from Plaintiff Philadelphia Indemnity Insurance Company (“Philadelphia”). Neither SMG nor the City of Fresno were added as AIs, but the policy contained a “deluxe endorsement” which extended coverage to lessors of premises for “liability arising out of the ownership, maintenance or use of that part of the premises leased or rented” to the named insured. The policy also contained an endorsement that extended coverage where required by a written contract for liability due to the negligence of the named insured. Philadelphia’s policy also stated that if the insurance company and insured “do not agree whether coverage is provided . . . for a claim made against the insured, then either party may make a written demand for arbitration.”
A patron to Future Farmer’s event at the Fresno Convention Center was seriously injured after he tripped over a pothole in the parking lot and hit his head. He sued both Fresno and SMG. In turn, Fresno and SMG tendered their defense to Philadelphia. Philadelphia denied coverage finding that the incident did not arise out of Future Farmer’s negligence, and that SMG had the sole responsibility for maintaining the parking lot. Consequently, Philadelphia concluded that neither Fresno nor SMG qualified “as an additional insured under the policy” for the injury in the parking lot.
The coverage dispute continued, and in 2016, Philadelphia issued a demand for arbitration which was rejected by SMG. Philadelphia then petitioned the state court to compel arbitration arguing that SMG could not avoid the burdens of the policy while seeking to obtain policy benefits. SMG used Philadelphia’s conclusion that it did not qualify as an AI under the policy to argue that Philadelphia was “estopped from demanding arbitration”. In other words, SMG argued that it could not be held to the burdens of the policy without being provided with the benefits of the policy.
The trial court sided with SMG finding that there was no arbitration agreement between the parties. The court noted that while third party beneficiaries can be compelled to arbitration there was no evidence that applied here, and Philadelphia could not maintain its inconsistent positions on the policy as its respects SMG.
Disagreeing with the trial court, the Court of Appeal concluded that SMG was a third-party beneficiary of the policy. The AI obligations in the license agreement and the deluxe endorsement in the Philadelphia policy collectively establish an intended beneficiary status. The Court saw SMG’s tender to Philadelphia as an acknowledgement of that status.
Relatedly, the Court found that SMG’s tender to Philadelphia – its demand for policy benefits – equitably estopped them from avoiding the burdens of the policy. The Court stated it defied logic to require a named insured to arbitrate coverage disputes but free an unnamed insured demanding policy coverage from the same requirement. Conversely, the Court found no inconsistency in Philadelphia’s denial of coverage to SMG and its subsequent demand for arbitration. Philadelphia did not outright reject SMG’s status as a potential insured, but rather concluded that there was no coverage because the injury occurred in the parking lot. In other words, the coverage determination turned on the circumstances of the injury not SMG’s status under the policy.
In short, the Court concluded that the potential insured takes the good with the bad. If one seeks to claim coverage as an additional insured, they can be subject to the restrictions of the policy including arbitration clauses even if they did not purchase the policy.
Securing additional insurance has become increasingly more difficult and limited over the years, and this holding presents yet another hurdle to attaining AI coverage. For those seeking coverage, it is important to note that the Court’s ruling may have turned out differently had the carrier outright denied SMG’s AI status, rather than concluding that the injury was not covered.
Your insurance scenario may vary from the case discussed above. Please contact legal counsel before making any decisions. BPH’s attorneys can be reached via email to answer your questions.
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Danielle S. Ward, Balestreri Potocki & HolmesMs. Ward may be contacted at
dward@bph-law.com
Buy a House or Pay Off College? $1.2 Trillion Student Debt Heats Up in Capital
June 11, 2014 —
Janet Lorin – BloombergJennifer Day spends 12 percent of her monthly take-home pay on debt that funded a master’s degree in urban and regional planning, money she’d rather be saving toward a home.
“I spend $364 a month for student loans,” said Day, 33, who conducts market research for the hospitality industry at a consulting firm in New Orleans. “To me, that is a down payment or ultimately savings down the line.”
Under legislation sponsored by U.S. Senator Elizabeth Warren of Massachusetts, Day would save about $75 a month on her payments. The bill, which could come up for a vote on the Senate floor as soon as tomorrow, would let 25 million borrowers with federal and private loans refinance their balances at lower interest rates, according to Education Department estimates.
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Janet Lorin, BloombergMs. Lorin may be contacted at
jlorin@bloomberg.net
How Berlin’s Futuristic Airport Became a $6 Billion Embarrassment
October 28, 2015 —
Joshua Hammer – BloombergThe inspectors could hardly believe what they were seeing. Summoned from their headquarters near Munich, the team of logistics, safety, and aviation experts had arrived at newly constructed Berlin Brandenburg International Willy Brandt Airport in the fall of 2011 to begin a lengthy series of checks and approvals for the €600 million ($656 million) terminal on the outskirts of the German capital. Expected to open the following June, the airport, billed as Europe’s “most modern,” was intended to handle 27 million passengers a year and crown Berlin as the continent’s 21st century crossroads.
The team of inspectors, known as ORAT, for Operations Readiness and Airport Transfer, brought in a dummy plane and volunteers as test passengers. They examined everything from baggage carousels and security gates to the fire protection system. The last was an especially high priority: None could forget the 1996 fire that roared through Düsseldorf Airport’s passenger terminal, killing 17.
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Joshua Hammer, Bloomberg
How Mushrooms Can Be Used To Make Particle Board Less Toxic
April 15, 2015 —
Sam Grobart – BloombergThink much about particle board? You should. It’s in everything from the chairs we sit on to the houses we live in.
Problem is, the close cousin of plywood is usually made using urea formaldehyde to help bind the wood particles together. The substance has been classified as a known human carcinogen by the Environmental Protection Agency.
One company, Ecovative Design in upstate New York, has figured out how to replace urea formaldehyde with with an unlikely alternative: mushrooms. Not whole mushrooms like you'd find on a pizza, but the root structure of mushrooms, called mycelium. Mycelium does as good a job as any binding wood particles, but will break down into harmless organic matter when disposed.
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Sam Grobart, Bloomberg
