Prevailing Payment Bond Surety Entitled to Statutory Attorneys’ Fees Even if Defended by Principal
January 09, 2023 —
Garret Murai - California Construction Law BlogFor contractors involved in California public works projects the scenario is not uncommon: The general contractor awarded the public works project is required to obtain a payment bond for the benefit of subcontractors and suppliers and the payment bond surety issuing the payment bond requires the general contractor to defend and indemnify the surety from and against any claims against the payment bond.
In Cell-Crete Corporation v. Federal Insurance Company, 82 Cal.App.5th 1090 (2022), the 4th District Court of Appeal examined whether a payment bond surety, who prevails in a claim against the payment bond, is entitled to statutory attorneys’ fees when the party actually incurring the attorneys’ fees was the general contractor, pursuant to its defense and indemnity obligations, as opposed to the surety itself.
The Cell-Crete Case
General contractor Granite Construction Company was awarded a public works contract issued by the City of Thermal known as the Airport Boulevard at Grapefruit Boulevard and Union Pacific Railroad Grade Separation Project. We’ll just call it the “Project.” Subcontractor Cell-Crete Corporation entered into a subcontract with Granite for lightweight concrete and related work.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Only Two Weeks Until BHA’s Texas MCLE Seminar in San Antonio
April 28, 2014 —
Beverley BevenFlorez-CDJ STAFFThere are just two weeks remaining to sign up for Bert L. Howe & Associate’s inaugural Texas MCLE seminar, “THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.” This activity will be presented on Friday, May 9th at noon in BHA’s San Antonio offices, located at 17806 IH 10, Suite 300, San Antonio, TX 78256. There is no cost for attendance at this seminar and lunch will be provided.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit. The seminar will be presented by Don MacGregor, general contractor and project manager.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation. The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals. Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* An analysis of exposure/allocation to responsible parties.
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
Course #: 901290467 / Sponsor #: 14152.
To register for the event, please email Don MacGregor at dmac@berthowe.com. If you have any questions, please feel free to contact Don at (210) 540-9017 (office) or (714) 713-4956 (cell).
Read the court decisionRead the full story...Reprinted courtesy of
How a Maryland County Created the Gold Standard for Building Emissions Reduction
May 24, 2021 —
Pam McFarland - Engineering News-RecordMontgomery County, Md. is generating significant buzz among U.S. municipalities aiming to reduce greenhouse gas emissions from buildings.
Reprinted courtesy of
Pam McFarland, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Anti-Concurrent Causation Endorsements in CGL Insurance Policies: A Word of Caution
August 29, 2022 —
David M. McLain – Colorado Construction LitigationWhile I have not performed exhaustive research into the origin of anti-concurrent causation (“ACC”) endorsements on insurance policies, or how or when they migrated from first-party property policies to commercial general liability (“CGL”) policies, they have done so. The result for Colorado’s construction professionals may rear its ugly head as an unwelcome and surprise outright declination of coverage for construction defect claims.
ACC endorsements state that if there are two causes of damage: one of which is covered by a policy and one of which is not, the carrier can invoke the ACC endorsement to disclaim coverage for all of the damage. An exemplar ACC endorsement is ISO Form CG 21 67, entitled “Fungi or Bacteria Exclusion.”
Read the court decisionRead the full story...Reprinted courtesy of
David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Construction Resumes after Defects
June 28, 2013 —
CDJ STAFFWhen inspectors found defective bolts in the construction of the Media Arts Center at L. A. Mission College, the contractor walked off the job. The project had been underway for about eighteen months. After problems were found with welds and bolts, the contractor informed the school that it could not complete the job. The California Division of the State Architect then required inspection of every weld and joint, leading to a dispute as to who was going to pay for it.
At this point, only the first story has been inspected. Although the other two stories must be inspected, the new contractor is about to begin work on the building. James O’Reilly, the executive director for facilities, planning and development, said that “the main focus is on fixing the defective issues and getting construction completed so we can serve the Mission campus.” Still at question is how much SMC Construction received before they walked off the job.
Read the court decisionRead the full story...Reprinted courtesy of
California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies
July 20, 2020 —
Scott P. DeVries & Michael S. Levine - Hunton Andrews KurthOn May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part.
The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation.
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Required Contract Provisions for Construction Contracts in California
October 08, 2014 —
Garret Murai – California Construction Law BlogOne question I get fairly often when drafting or reviewing construction contracts is what provisions, if any, are required in construction contracts in California. This is, of course, different than what should be included in a construction contract which is a post for another day. So, here you go:
Provisions Required in All Construction Contracts
There’s only one requirement applicable to all construction contracts in California. And, that is, that you must include your California contractor’s license number if you are performing or bidding on work requiring a license. California Business and Professions Code section 7030.5 requires that licensed contractors include their license number in “(a) all construction contracts; (b) subcontracts and calls for bid; and (c) all forms advertising, as prescribed by the register of contractors, used by such person.”
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
If Passed, New Bill AB 2320 Will Mandate Cyber Insurance For State Government Contractors
September 07, 2020 —
Makenna Miller & Jeffrey Dennis - Newmeyer DillionEarlier this year, Assemblyman Edwin Chau (D-Monterey Park) introduced Assembly Bill 2320. AB 2320, if passed, would require any business that contracts with the state and has access to records containing personal information protected under the state’s Information Practices Act (IPA) to maintain cyber insurance coverage. Information covered under the IPA includes names, social security numbers, physical descriptions, home addresses, home telephone numbers, education, financial matters, and medical or employment history. Requiring contractors to maintain cyber insurance will likely both shift the costs of cyberattacks from taxpayers to the private sector, while also encouraging robust cyber security practices among businesses of all sizes. While the bill has not yet passed, businesses will be best served by implementing and improving cybersecurity practices now in order to attain lowest premium rates in the future.
Incentivizing Best Practices
With the adoption of AB 2320, businesses will be incentivized to increase their security posture in order to receive lower premiums from insurers. Simultaneously, insurers will be incentivized to mandate best practices from their insureds in order to mitigate their risk of having to pay out on cyber insurance policies. Thus, cyber insurance will work as a vehicle to increase best practices in businesses and subsequently decrease vulnerabilities to cyberattacks.
Reprinted courtesy of
Makenna Miller, Newmeyer Dillion and
Jeffrey Dennis, Newmeyer Dillion
Ms. Miller may be contacted at makenna.miller@ndlf.com
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
Read the court decisionRead the full story...Reprinted courtesy of
