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DIRECTORY AND CAPABILITIES

Supreme Court of New Jersey Reviews Statutes of Limitation and the Discovery Rule in Construction Defect Cases

July 18, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
Robert Neff Jr. of Wilson Elser analyzed the recent case, Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 2017 N.J. Lexis 845, 169 A.3d 473 (Supreme Court of New Jersey, September 14, 2017), and states that this ruling “gives defendants the ability to defend against the assertion that the statute of limitations was tolled until the most recent owner (and plaintiff) discovered the cause of action.” Neff concludes that a statute of limitations test needs to be conducted at the beginning of each case: “In Palisades, the motions to dismiss based on the statute of limitations were filed at the conclusion of all discovery. While an initial analysis might yield the conclusion that certain discovery will be needed to ascertain the appropriate accrual date (or dates, in the case of multiple defendants), counsel will then know what discovery to seek during the discovery period.” Read the court decision
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FEMA, Congress Eye Pre-Disaster Funding, Projects

November 08, 2017 — Pam Radtke Russell - Engineering News-Record
Federal Emergency Management Agency Administrator Brock Long wants to revamp the way federal disaster funds are distributed, putting a greater emphasis on building more-resilient structures and communities before disasters strike, Long told a House panel reviewing federal response to the recent slate of disasters. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

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Insurer Liable for Bad Faith Despite Actions of Insured Contributing to Excess Judgment

January 02, 2019 — Tred R. Eyerly - Insurance Law Hawaii
Reversing the intermediate appellate court, the Florida Supreme Court held the insurer liable for bad faith despite imperfect actions by the insured. Harvey v. GEICO Gen. Ins. Co., 2018 Fla. LEXIS 1705 (Fla. Sept. 20, 2018). Insured James Harvey was involved in an auto accident in which the other driver, 51 year old John Potts, was killed. Harvey's vehicle was registered in both his name and his business's name, and was covered under a $100,000 liability policy. Harvey reported the accident to his insurer, GEICO. The claim was assigned to a claims adjuster, Fran Korkus. 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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General Liability Alert: A Mixed Cause of Action with Protected and Non-Protected Activity Not Subject to Anti-SLAPP Motion

February 18, 2015 — Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay – Haight Brown & Bonesteel LLP
In Baral v. Schnitt (filed 2/5/2015, No. B253620), the California Court of Appeal, Second Appellate District, held that California’s anti-SLAPP statute does not authorize the striking of allegations of protected activity in a cause of action that also contains meritorious allegations of non-protected activity not within the purview of the statute. In so holding, the court attempted to resolve, or at least add its voice to, the growing conflict among appellate districts on the issue. A SLAPP lawsuit (Strategic Lawsuit Against Public Participation) seeks to chill or punish the exercise of constitutional rights to free speech and to petition the government for redress of grievances. California’s Legislature enacted the anti-SLAPP statute to permit a defendant to file a special motion to strike as to any cause of action that arises out of an act in furtherance of such rights. In Baral, the plaintiff alleged that his business partner had violated fiduciary duties in usurping the plaintiff’s ownership and management interests in their jointly owned company, so that the defendant could benefit from a secret sale of the company. The complaint alleged that the defendant hired a public accounting firm and prevented the plaintiff from participating in its investigation in order to force the plaintiff's cooperation of the sale of the company. The defendant filed an anti-SLAPP motion, seeking to strike all references to the accounting firm's audit. The trial court denied the motion, on the ground that the anti-SLAPP statute applies to causes of action, not allegations. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay Ms. Moore may be contacted at vmoore@hbblaw.com. Mr. Zucker may be contacted at lzucker@hbblaw.com. Ms. Golay may be contacted at bgolay@hbblaw.com. Read the court decision
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Can I Be Required to Mediate, Arbitrate or Litigate a California Construction Dispute in Some Other State?

September 19, 2022 — William L. Porter - Porter Law Group
It is not uncommon in the construction industry for an out-of-state general contractor to include a provision in a subcontract requiring a California subcontractor to resolve disputes outside the state of California, even though the work is to be performed within California. Fortunately, most California subcontractors are immune from this tactic. California law generally prohibits clauses requiring subcontractors to travel outside California to resolve construction disputes. California Code of Civil Procedure Section 410.42, [CCP 410.42 Link] renders “void and unenforceable,” any provision in a contract that “purports to require any dispute to be litigated, arbitrated, or otherwise determined outside this state,” so long as the contract is “between the contractor and a subcontractor with principal offices in the state, for the construction of a public or private work of improvement in this state.” Similarly, this law voids any similar contractual term that might prevent the California subcontractor from commencing an action, obtaining a judgment, or resolving its dispute in the courts of California. Read the court decision
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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

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#3 CDJ Topic: Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., Case No. D066615

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Michael R. Vellado and Nicole R. Kardassakis of Lewis Brisbois Bisgaard & Smith LLP analyzed the appeals case that “reversed the trial court’s entry of summary judgment in favor of ProBuilders Specialty Insurance Company (“ProBuilders”) and held that the ‘other insurance’ clause in the ProBuilders policy did not relieve it of its duty to participate in the defense of its insured, Pacific Trades Construction & Development, Inc. ('Pacific Trades')." Read the full story... Another discussion of the ProBuilders appeal ruling occurred on the California Construction Law Blog, written by Yas Omidi of Wendel Rosen Black & Dean LLP. Omidi explained the appeal’s court decision: “In reversing the trial court’s decision, the appellate court characterized ProBuilder’s ‘other insurance’ clause as an ‘escape clause’—i.e., a clause that attempts to have coverage, paid for with the insured’s premiums, evaporate in the presence of other insurance.” Furthermore, she noted that “California public policy disfavors such clauses.” Read the full story... Read the court decision
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COVID-19 Response: Environmental Compliance Worries in the Time of Coronavirus

April 20, 2020 — Karen Bennett, Jane Luxton, William Walsh & Amanda Tharpe - Lewis Brisbois
Earlier this week, a rumor made the rounds that a forthcoming Presidential Executive Order would impose a nationwide mandate that all employees work remotely. While the rumor proved baseless, it raised questions about manufacturers’ abilities to comply with environmental permit obligations in the event of a COVID-19 precipitated operational shutdown due to federal or state mandates or workforce depletion resulting from widespread illness. Previous emergencies offer some insights on what to expect as companies and their counsel assess environmental business risk. In the wake of Hurricane Katrina, several bills were introduced in Congress that would have allowed the Environmental Protection Agency (EPA) to waive or modify requirements, issue emergency permits, or expedite permits as needed to respond to disaster and recovery needs. In the end, no new legislation was enacted, because existing emergency powers under environmental statutes proved sufficient to allow for waiver of regulatory requirements or exercise of enforcement discretion. Key provisions include the following:

• The Clean Water Act’s (CWA) affirmative defense for “upset” conditions. This provision excuses non-compliance with technology-based permit effluent limitations due to factors outside the permittee’s control. Criteria for establishing the defense include: 1) the upset occurred and the permittee can identify the cause, 2) the permitted facility was at the time being properly operated, 3) the permittee submitted notice of the upset (24 hour notice), and 4) the permittee complied with any remedial measures required under 40 C.F.R. §122.41(d).

Reprinted courtesy of Lewis Brisbois Bisgaard & Smith attorneys Karen Bennett, Jane Luxton, William Walsh and Amanda Tharpe Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com Mr. William may be contacted at William.Walsh@lewisbrisbois.com Ms. Amanda may be contacted at Amanda.Tharpe@lewisbrisbois.com Read the court decision
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Not So Unambiguous: California Court of Appeal Finds Coverage for Additional Insured

October 11, 2017 — Malcom Ranger-Murdock - Saxe Doernberger & Vita, P.C.
California’s Fourth District Court of Appeal recently determined that manuscript additional insured endorsements (AIEs), which purportedly provided coverage for ongoing operations only, were ambiguous. The court also found the insurer that issued the policies, American Safety Indemnity Co. (American Safety), acted in bad faith due to its systematic efforts to deny coverage to general contractors as additional insureds. In Pulte Home Corp. v. American Safety Indemnity Co.,1 Pulte Home Corporation (Pulte Home), a general contractor, sued American Safety for failure to defend Pulte Home as an additional insured in connection with two underlying construction defect lawsuits. American Safety contended that it did not have a duty to defend Pulte Home because the loss occurred after the construction project was complete and the applicable AIEs did not provide coverage for completed operations, and/or because the policy’s faulty workmanship exclusions applied. The trial court awarded $1.4 million in compensatory and punitive damages to Pulte Home, and American Safety appealed. Read the court decision
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Reprinted courtesy of Malcom Ranger-Murdock, Saxe Doernberger & Vita, P.C.
Mr. Ranger-Murdock may be contacted at mrm@sdvlaw.com

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