Research Project Underway to Prepare Water Utilities for Wildfire Events
January 23, 2023 —
Brown and CaldwellPORTLAND, Ore., January 17, 2023 — A multi-disciplinary team of utilities, academia, and consultants have convened to develop a study and publish guidance to improve water treatment resilience against the impacts of forest fires.
Critical to water security, forested watersheds provide 75 percent of the world’s accessible freshwater (Food and Agriculture Organization of United Nations 2021) and supply drinking water for more than two-thirds of North American consumers (EPA 2019). The frequency and severity of forest fires have been increasing globally with warming temperatures and shifting precipitation patterns due to climate change. Wildfires can cause costly, long-term water treatment issues that push water treatment processes beyond their design and operational response capabilities.
Such issues include filtration effectiveness, disinfection efficacy, the elevation of disinfection by-product formation, and increased bioavailable phosphorus leading to problematic cyanobacterial/algal blooms.
Led by a principal research team of Lynn Stephens (Brown and Caldwell), Dr. Mac Gifford and Yone Akagi (Portland Water Bureau), and Dr. Monica Emelko (University of Waterloo), Water Research Foundation (WRF) project #5168 is funded by the foundation’s Emerging Opportunities Program and the Portland Water Bureau (PWB).
About The Water Research Foundation
The Water Research Foundation (WRF) is the leading research organization advancing the science of all water to meet the evolving needs of its subscribers and the water sector. WRF is a nonprofit, educational organization that funds, manages, and publishes research on the technology, operation, and management of drinking water, wastewater, reuse, and stormwater systems—all in pursuit of ensuring water quality and improving water services to the public. For more information, visit www.waterrf.org
About Brown and Caldwell
Headquartered in Walnut Creek, Calif., Brown and Caldwell is a full-service environmental engineering and construction services firm with 52 offices and more than 1,700 professionals across North America and the Pacific. For over 75 years, our creative solutions have helped municipalities, private industry, and government agencies successfully overcome their most challenging water and environmental obstacles. As an employee-owned company, Brown and Caldwell is passionate about exceeding our clients’ expectations and making a difference for our employees, our communities, and our environment. For more information, visit www.brownandcaldwell.com
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Property Owner’s Defense Goes Up in Smoke in Careless Smoking Case
September 23, 2019 —
Michael J. Ciamaichelo - The Subrogation StrategistProperty owners owe a duty of reasonable care to avoid causing harm to neighboring properties. When a property owner knows or should know about a condition that poses a risk of danger to neighboring properties, the property owner must exercise reasonable care to make the condition safe. The Court of Special Appeals of Maryland recently held that, where hundreds of discarded cigarette butts had accumulated in a bed of mulch over an extended period of time prior to the fire at issue, the owner of the property with the mulch beds owed a duty of care to its neighbors to prevent a foreseeable fire.
In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 2019 Md. App. LEXIS 430 (May 30, 2019), a fire originated in a strip of mulch at property owned by the Steamfitters Local Union No. 602 (Union) and caused damage to neighboring properties. The fire occurred when an unknown person discarded a cigarette butt into the mulch. Following the fire, investigators found “hundreds, if not thousands of cigarettes” in the mulch where the fire originated. A representative for the Union acknowledged that there were more butts in the mulch “than there should have been” and that, “[i]n the right situation,” a carelessly discarded cigarette could cause a fire. The Union, however, had no rules or signs to prohibit or regulate smoking at the property, where apprentices would often gather prior to class.
The insurance companies for the damaged neighbors filed subrogation actions alleging that the Union, as the property owner, failed to use reasonable care to prevent a foreseeable fire. A jury found in favor of the subrogating insurers and against the Union.
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Michael J. Ciamaichelo, White and Williams LLPMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
Insured's Failure to Prove Entire Collapse of Building Leads to Dismissal
July 19, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe Fifth Circuit affirmed the district court's dismissal of the insured's claim for damage to her home caused by collapse. Stewart v. Metropolitan Lloyds Ins. Co. of Texas, 2021 U.S. App. LEXIS 14221 (5th Girl May 13, 2021).
One evening, the insured was awakened by a loud bang that shook her house. The next morning, she noticed the damage to her home, cracked sheetrock and sunken floors. She cut a hole through her floor and discovered that a couple of joists below her subfloor had broken and fallen away. The insured filed a claim with Metropolitan.
Metropolitan hired an expert who found broken and deteriorated floor joists, deteriorated floor decking, walls not plumb and gaps in the wall-to-ceiling interface. It was determined that the rot in the floor joists and subfloor decking were caused by a combination of termite damage and exposure to moisture over the lifespan of the structure, resulting in the broken floor joists and unlevel floors. The insured's own expert agreed that termite damage and wood rot were the cause of the foundation collapse failure.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
CGL, Builders Risk Coverage and Exclusions When Construction Defects Cause Property Damage
May 17, 2021 —
Jeffrey Cavignac - Construction ExecutiveDirect damage to property under construction caused by faulty or defective work or defective materials has been a coverage issue for decades. Two specific policies, the Commercial General Liability for the contractors building the structure and the Builders Risk Policy on the project both are sources of potential coverage.
A CGL policy protects the named insured (the contractor in this case) from third party liability arising out of the insured’s operations that results in either bodily injury or property damage. Damage to property caused by poor workmanship or defective materials would qualify as property damage. To understand how the CGL policy might respond to claims such as these, it is necessary to evaluate several exclusions in the CGL policy.
CGL policies cover “property damage,” defined as physical injury to tangible property, including loss of use of such property, and loss of use of tangible property that has not been physically injured.
Reprinted courtesy of
Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Encinitas Office Obtains Complete Defense Verdict Including Attorney Fees and Costs After Ten Day Construction Arbitration
May 23, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPartner Vik Nagpal and Associate Attorney Tim McNulty of the Encinitas office recently obtained a substantial victory on behalf of BWB&O’s client after a 10-day binding construction arbitration before a three-arbitrator panel of the American Arbitration Association.
BWB&O’s client was sued by the Owner of a commercial office building related to a multimillion-dollar tenant improvement project in San Diego. The Owner asserted construction defect damages, delay damages, architectural negligence, fraudulent billing practices and consequential damages of $3.6 million dollars. BWB&O’s client claimed breach of contract damages against the owner for failure to pay invoices.
The Owner who had substantial financial resources and a personal spite against the general contractor, unreasonably pursued the case with an extensive team of lawyers and experts. At an earlier full-day mediation, the owner rejected a reasonable settlement offer which included a settlement payment to the Owner and the client’s agreement to dismiss their affirmative claim for damages.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Of Pavement and Pandemic: Liability and Regulatory Hurdles for Taking It Outside
September 21, 2020 —
Jeff Clare - Gravel2Gavel Construction & Real Estate Law BlogAs the COVID-19 pandemic continues to ravage the U.S. economy, restaurateurs and bar owners are feeling the brunt of business closures and adaptations necessary to combat the disease. Where cozy and intimate dining was once de rigueur for the restaurant industry, these businesses must now shift to outdoor dining with adequate space and airflow between parties. In response to these concerns, many cities across the country who once fought against the loss of any parking have turned to a post-automobile tactic: outdoor dining in thoroughfares and parking lots. While at first glance it might seem a simple enough prospect—throw some chairs and a table out front, and voilà—property owners and restaurateurs must remain cognizant of various liability and regulatory hurdles for operating outside.
With Great Space Comes Great … Potential Liability.
One of the largest concerns for landowners in operating in a new space for business is liability. Who is on the hook if someone gets hurt dining in an impromptu dining space in a parking lot? Prior to beginning new outdoor dining operations, landowners and restaurateurs should contact their insurance providers to ensure that the new space is included in their insurance coverage. This is a particular concern for larger commercial landowners who may have various businesses vying to use their parking lot for business. Many leases have carefully crafted clauses limiting where a business may operate and where their liability ceases. Landowners and business owners should review their leases for any such clauses and negotiate with one another to ensure that liability in these new spaces is clearly defined.
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Jeff Clare, PillsburyMr. Clare may be contacted at
jeff.clare@pillsburylaw.com
Colorado Legislature Considering Making it Easier to Prevail on CCPA Claims
April 03, 2023 —
Rachael Bandeira - Colorado Construction Litigation BlogHouse Bill 23-1192 (“HB 23-1192”) is one of the proposed bills making its way through the Colorado legislative session this year. It purports to create additional protections in the Colorado Consumer Protection Act (“CCPA”), but instead threatens to put construction professionals at an increased risk during litigation. Under the scope of the proposed bill, many construction contracts, as drafted, could automatically add up to $250,000 to any claim by lowering the standard for what constitutes an “unfair or deceptive trade practice.” Further, it would remove elements of a CCPA claim currently required by law to prove that an unfair or deceptive trade practice “constitutes a significant impact to the public.” This bill still has a way to go before becoming law, but given its progress thus far, we believe it is highly probable that it will be enacted unless there is substantial pushback. For the reasons discussed below, we urge all construction professionals to take necessary action to obstruct this bill, and particularly Section 1 of the bill, from becoming enacted.
The most concerning proposed amendments to the CCPA, through Section 1 of the bill, do the following:
- Remove the knowingly or recklessly mental state from the general unfair or deceptive trade practice provision concerning an unfair, unconscionable, deceptive, knowingly false, or fraudulent act or practice;
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Rachael Bandeira, Higgins, Hopkins, McLain & Roswell, LLCMs. Bandeira may be contacted at
bandeira@hhmrlaw.com
The Preservation Maze
June 12, 2023 —
Sofya Uvaydov - Kahana & Feld LLPTo appropriately preserve an issue for appeal is frankly confusing to many attorneys due to differing rules depending on the issue or procedural posture (presumably why appellate attorneys are more commonly used during trial). On May 25th, the US Supreme Court handed down Dupree v. Younger, 598 U.S. __ (2023) clarifying preservation requirements from denied summary judgment orders. When a federal court denies summary judgment on sufficiency of evidence grounds, a party must raise the argument again post-trial to preserve it for appeal as per the Court’s prior ruling in Ortiz v. Jordan, 562 U.S. 180 (2011). When a court denies summary judgment on a purely legal issue, the Court unanimously held that the issue is preserved in an appeal from a final judgment without having to raise it again post-trial. The Supreme Court distinguished this from their prior rule in Ortiz by explaining that sufficiency or factual issues which were previously denied at summary judgment must be evaluated based on the totality of the evidence adduced at trial. A purely legal issue decided on summary judgment is not changed by factual evidence at trial.
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Sofya Uvaydov, Kahana & Feld LLPMs. Uvaydov may be contacted at
suvaydov@kahanafeld.com
