Colorado Supreme Court to Hear Colorado Pool Systems, Inc. v. Scottsdale Insurance Company, et al.
October 10, 2013 —
David M. McLain — Higgins, Hopkins, McLain & Roswell, LLCThe Colorado Pool case has been featured in two past blog entries, including: “An Arapahoe County District Court Refuses to Apply HB 10-1394 Retrospectively,” which discussed the case at the trial court level, and “Colorado Court of Appeals Finds Damages to Non-Defective Property Arising From Defective Construction Covered Under Commercial General Liability Policy,” which discussed the case at the Court of Appeals level. In both instances, the courts held that retroactively applying C.R.S. C.R.S. § 13-20-808 to policies in effect prior to the date of the statute’s enactment would be impermissibly retrospective because it would change the coverage under the policy for which the parties had originally bargained.
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David M. McLainDavid M. McLain can be contacted at
mclain@hhmrlaw.com
Beyond the Flow-Down Clause: Subcontract Provisions That Can Expose General Contractors to Increased Liability and Inconsistent Outcomes
December 10, 2024 —
Phillip L. Parham III - ConsensusDocsFlow-down clauses in construction subcontracts—blanket clauses providing that some or all of the terms and conditions in the prime contract between the general contractor and the property owner apply equally between the subcontractor and general contractor—are an important component to managing risk for a general contractor and reducing the likelihood of disputes with either/both the owner and subcontractor. Put simply, flow-down provisions can provide continuity between the general contractor’s obligations to the owner and the subcontractor’s obligations to the general contractor. Properly drafted, flow-down clauses reduce the general contractor’s risk by ensuring that the subcontractor is legally bound to meet the owner’s objectives for the project in the same way as the general contractor. But relying on blanket flow-down clauses, alone, to protect the general contractor is like a soldier going into battle with nothing but a helmet, leaving significant other areas exposed and unprotected. In other words, a general contractor should look beyond just a singular, blanket flow down of terms to ensure its bases are properly covered.
Accordingly, this article goes beyond the blanket flow-down clause and highlights several key subcontract provisions where inconsistent obligations among the subcontractor, general contractor, and owner expose the general contractor to increased liability and inconsistent outcomes. Specifically, this article will examine disputes resolution clauses, liquidating provisions, notice provisions, and termination provisions. However, this article will not provide a deep examination of these clauses, nor does it highlight every potentially relevant clause. Rather, it focuses on these select clauses to highlight important issues associated with flow-down provisions.
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Phillip L. Parham III, Jones Walker LLPMr. Parham may be contacted at
pparham@joneswalker.com
The Registered Agent Advantage
October 22, 2014 —
Christopher G. Hill – Construction Law MusingsIn the Commonwealth of Virginia, as in most states, all corporations, LLC’s or other corporate style entities are required to have a registered agent if they are to do business in the Commonwealth. The reasons for the requirement are many, but the main ones are taxation, service of process and communication from the Virginia State Corporation Commission (the “SCC”). Without such a registered agent, many rights, for example the right to prosecute a lawsuit, are not available to the unregistered entity.
As a construction company that I hope is incorporated (if you aren’t you should do take this step), your registered agent can be an officer of the company, a company that meets the requirements of the SCC that allow it to act as a registered agent, or an attorney licensed in the Commonwealth of Virginia. It is this last category that you should carefully consider.
Why do I think that a Virginia construction attorney is the best candidate for use as the registered agent of either a local or out of state contractor or subcontractor? As you might imagine from the title of this post, I’ll let you know.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal
January 24, 2018 —
Tony Carucci – Real Estate Litigation BlogUnder California Code of Civil Procedure section 2033.300, a court may permit a party to withdraw an admission made in response to a request for admission upon noticed motion. The court may only do so, however, “if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Cal. Code Civ. Proc. § 2033.300(b). The court may also “impose conditions on the granting of the motion that are just, including, but not limited to . . . (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” Cal. Code Civ. Proc. § 2033.300(c).
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Tony Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
California Contractors: Amended Section 7141.5 Provides Important License Renewal Safety Net
July 25, 2021 —
Amy L. Pierce, Mark A. Oertel, John Lubitz & Adam B. Wiens - Lewis BrisboisUnder California’s Contractors State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., contractors’ licenses expire two years from the last day of the month in which the license was issued or two years from the date on which the renewed license last expired. The Contractors State License Board (CSLB) sends licensees a renewal application 60 to 90 days in advance of the date the license is set to expire. Even with various controls in place, mistakes happen and a renewal application filing deadline can be missed.
During the August 5-6, 2019 Executive, Licensing, and Legislative Committee Meetings, the CSLB discussed proposed amendments to Section 7141.5 to reduce both the burden on it to review applications for retroactive renewal of a license that had not been timely submitted and to provide contractors with some relief from the high burden to establish “the failure to renew was due to circumstances beyond the control of the licensee.” Not long after, the CSLB’s Board of Directors gave staff approval to seek an author for the bill and, on September 29, 2020, Governor Newsom signed Senate Bill 1474 into law, which includes the CSLB’s proposed amendments to Section 7141.5, effective January 1, 2021.
Reprinted courtesy of
Amy L. Pierce, Lewis Brisbois,
Mark A. Oertel, Lewis Brisbois,
John Lubitz, Lewis Brisbois and
Adam B. Wiens, Lewis Brisbois
Ms. Pierce may be contacted at Amy.Pierce@lewisbrisbois.com
Mr. Oertel may be contacted at Mark.Oertel@lewisbrisbois.com
Mr. Lubitz may be contacted at John.Lubitz@lewisbrisbois.com
Mr. Wiens may be contacted at Adam.Wiens@lewisbrisbois.com
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Eastern District of Pennsylvania Denies Bad Faith Claim in HO Policy Dispute
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Patrick Nugent of Saul Ewing LLP’s article in JD Supra Business Advisor, the Eastern District of Pennsylvania entered a summary judgment for the insurer on a statutory bad faith claim in a coverage dispute under a homeowner’s policy.
The coverage dispute was over “the collapse of a wall in the plaintiffs’ home.” The Plaintiffs alleged that “the collapse resulted from excessive rainfall during a storm in March 2011.” However, Metropolitan Direct Property and Casualty Insurance Company’s engineer concluded that the collapse “resulted from long-term and on-going water infiltration attributable to poor maintenance.” Water damage had occurred a year prior to the collapse, but had not been repaired.
In response, “Plaintiffs filed a complaint in Pennsylvania state court alleging breach of contract and statutory bad faith.” The court “determined that Metropolitan’s denial of benefits ‘was not only reasonable, but correct under the Policy language,’” and “ruled that the plaintiffs could not demonstrate that Metropolitan lacked a reasonable basis for denying their claim and entered summary judgment for Metropolitan on the plaintiffs’ bad faith claim.”
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Candis Jones Named to Atlanta Magazine’s 2021 “Atlanta 500” List
March 01, 2021 —
Candis Jones - Lewis Brisbois NewsroomAtlanta Partner Candis Jones has been named to Atlanta Magazine’s 2021 “Atlanta 500” list of the most powerful business leaders in Atlanta. To compile this list, the publication reviewed nominations from the public and consulted experts across various sectors. The magazine’s editors and writers considered not only the status of the nominees within their respective organizations, but also whether the nominees were visionary by, for example, leading programs for their communities or creating opportunities for employees.
Ms. Jones is a member of Lewis Brisbois’ General Liability Practice. Representing a wide array of clients, including Fortune 500 companies, insurance carriers, and a major metropolitan transit authority, she focuses her practice on insurance defense, premises liability, personal injury, and medical malpractice. She was recently installed as the President of the Gate City Bar Association, the oldest African-American bar association in the state of Georgia, and also serves as a member of the Georgia Defense Lawyers Association and the Georgia Association of Black Women Attorneys.
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Candis Jones, Lewis BrisboisMs. Jones may be contacted at
Candis.Jones@lewisbrisbois.com
Massachusetts High Court: Attorney's Fee Award Under Consumer Protection Act Not Covered by General Liability Insurance Policy
September 19, 2022 —
Jeffrey J. Vita & David G. Jordan - Saxe Doernberger & Vita, P.C.In the case of
Vermont Mutual Insurance Co. v. Poirier, 189 N.E.3d 306 (Mass. 2022), Massachusetts’ Supreme Judicial Court concluded that an award of attorney's fees pursuant to
Chapter 93A (Massachusetts’ Consumer Protection Act) is not covered under an insured’s general liability insurance policy. Applying Massachusetts law, the Court found that a statutory award of attorney’s fees stemming from a bodily injury claim is not reasonably considered “damages because of bodily injury” or “costs taxed against the insured” so as to trigger general liability coverage.
Facts of the Case
A Servpro company (owned by Mr. and Mrs. Poirier) was hired to clean up a basement after a sewage spill. The owners of the home were injured by fumes from chemicals used in the cleanup and accordingly brought suit against the Poiriers and their Servpro business. In the lawsuit, the homeowners alleged negligence, breach of contract, and also a Chapter 93A claim, asserting breach of warranty of merchantability and warranty of fitness for a particular purpose. Prior to trial, the plaintiffs waived the negligence and breach of contract claims and sought a bench trial on the Chapter 93A claims alone.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
David G. Jordan, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at JVita@sdvlaw.com
Mr. Jordan may be contacted at DJordan@sdvlaw.com
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