Risk Management and Contracting after Hurricane Irma: Suggestions to Avoid a Second Disaster
September 14, 2017 —
Stephen H. Reisman, Gary M. Stein & Adam P. Handfinger – Peckar & Abramson, P.C.Peckar & Abramson attorneys have assisted contractors in the immediate aftermath of several Hurricanes, including Andrew in 1992, Wilma in 2005, Ike in 2008, and Sandy in 2012. Based on this experience, we offer some post-storm strategies for contracting and risk management in three situations:
- Ongoing projects in the area directly impacted by the storm;
- Projects remote from the storm-impacted areas, but which may be affected by material or labor shortages; and
- Requests for assistance in recovery/clean-up/rebuild eff orts, which would be new projects.
Projects Directly Impacted By Hurricane Irma:
1. Immediately review each Owner contract to determine what notices are required for delays and/or extra costs arising from the storm. Contract notice requirements and time limits vary, whether for force majeure or other similar time and compensation rights. There is no effective one-size-fits-all solution. While the initial notice letters will likely look very similar, you should make sure that each is sent as required by the contract. Check each contract’s requirements for particulars regarding content, the form of delivery, and parties and individuals designated to receive the letters as well as carbon copy recipients like the architect. Follow-up notices and time periods differ from contract to contract and should be tracked so that if, for example, a follow-up notice is required in a week per the contract terms, it is tracked to ensure compliance.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Stephen H. Reisman,
Gary M. Stein and
Adam P. Handfinger
Mr. Reisman may be contacted at sreisman@pecklaw.com
Mr. Stein may be contacted at gstein@pecklaw.com
Mr. Handfinger may be contacted at ahandfinger@pecklaw.com
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Developer's Novel Virus-killing Air Filter Ups Standard for Indoor Air Quality
April 12, 2021 —
Nadine M. Post - Engineering News-RecordLast April 13, as an ambulance sped him to the hospital, Monzer Hourani overheard the emergency medical technicians say they didn’t think he was going to make it. Immediately, the 77-year-old medical-building developer started praying: “God, give me time to finish this.”
Reprinted courtesy of
Nadine M. Post, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Not a Waiver for All: Maryland Declines to Apply Subrogation Waiver to Subcontractors
September 23, 2024 —
Gus Sara - The Subrogation StrategistIn Lithko Contr., LLC v. XL Ins. Am. Inc., No. 31, Sept. Term, 2023, 2024 Md. LEXIS 256, the Supreme Court of Maryland considered whether a tenant who contracted for the construction of a large warehouse facility waived its insurer’s rights to subrogation against subcontractors when it agreed to waive subrogation against the general contractor. The court ultimately decided that the unambiguous language of the subrogation waiver in the development agreement between the parties did not extend to subcontractors. The court also held that the tenant’s requirement that subcontracts include a subrogation waiver did not, in this case, impose a project-wide waiver on all parties. The court, however, found that the requirement that the subcontracts include a similar, but not identical, waiver provision rendered the subcontract’s waiver clauses ambiguous and remanded the case to the lower court to determine if the parties to the development agreement – i.e., Duke Baltimore LLC (“Duke”) and Amazon.com.dedc, LLC (“Amazon”) – intended that the waiver clause in the subcontracts covered claims against subcontractors.
This case involved roof and structural damage to a warehouse in Baltimore, Maryland that Duke owned. In March 2014, Amazon entered into a development agreement with Duke for the construction of the warehouse. Amazon also agreed to subsequently lease the warehouse from Duke. Although Amazon essentially owned and/or developed the project, the development agreement identified Duke as “Landlord” and Amazon as “Tenant.”
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Apprentices on Public Works Projects: Sometimes it’s Not What You Do But Who You Do the Work For That Counts
September 17, 2015 —
Garret Murai – California Construction Law BlogIf you’re a public works contractor in California you’re familiar with prevailing wages. The Prevailing Wage Law, a Depression era law designed to encourage the hiring of local labor, sets a minimum wage that employers must pay to workers on public works projects.
But because the Prevailing Wage Law sets a floor on wages it also limits the opportunity for lesser-skilled workers to gain experience. To address this, the Prevailing Wage Law permits contractors to pay apprentices a lower “apprentice wage” if the apprentice is enrolled in a state-approved apprenticeship program and requires contractors who hire workers in an “apprenticeable craft or trade” to hire a certain number of apprentices.
But are particular apprentices required to be hired depending on the type of work being performed? In Henson v. C. Overaa & Company, Case No A139966 (June 29, 2015), the California Court of Appeals for the First District held that apprentices are required to be hired based on the craft or trade of the journeymen performing work not based on the type of work being performed.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Duty to Defend Broadly Applies to Entire Action; Insured Need Not Apportion Defense Costs, Says Maryland Appeals Court
January 27, 2020 —
Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery BlogIn a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here.
The coverage litigation arose out of a construction defect case against a general contractor. The general contractor tendered the action to its insurer, Nationwide, which, in turn, filed a declaratory judgment action against the various insurers of construction project subcontractors that had named the general contractor as an additional insured. Ultimately, the court granted a summary judgment motion declaring that all of the subcontractors’ insurers had a duty to defend the general contractor “because the allegations in the underlying lawsuit raised claims that potentially arose from the [s]ubcontractors’ work at the [construction site].” All of the subcontractors’ insurers settled with Nationwide except for one, Selective Way; and the parties proceeded to a jury trial on various issues. The jury found for Nationwide on all issues. Selective Way appealed.
Selective Way argued on appeal that even if some of the allegations were covered under its policy, it had no obligation to defend the general contractor because its insureds, the subcontractors, could not have been responsible for all of the losses given the nature of their work. Further, Selective Way contended that if it was responsible for defending the general contractor, it was not responsible for the entire defense, and the general contractor was responsible for apportioning the costs among the various subcontractors. The panel disagreed on both points.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Kevin V. Small, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Small may be contacted at ksmall@HuntonAK.com
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California Supreme Court Adopts Vertical Exhaustion for Long-Tail Claims
June 15, 2020 —
Tred R. Eyerly - Insurance Law HawaiiIn another round of litigation involving coverage issues between Montrose Chemical Corporation and its insurers, the California Supreme Court ruled in favor of Montrose, adopting vertical exhaustion of excess policies. Montrose Chem. Corp. of Calif. v. The Superior Court of Los Angeles County, 9 Ca. 5th 215 (2020).
In 1990, the United States and the State of California sued Montrose for contamination from 1947 to 1982 caused by Montrose's facility manufacturing insecticides. Montrose had primary and excess liability policies from defendant insurers between 1961 and 1985. Forty insurers collectively issued more than 115 excess policies, which collectively provided coverage sufficient to indemnify Montrose's anticipate total liability.
Primary coverage was exhausted. Each excess policy provided that Montrose had to exhaust the limits of its underlying coverage before there would be excess coverage. Which excess carrier could be called on first was the issued before the California Supreme Court.
Montrose proposed a rule of "vertical exhaustion" or "elective stacking," whereby it could access any excess policy once it exhausted other policies with lower attachment points in the same policy period. The insurers, in contract, argued for "horizontal exhaustion," whereby Montrose could access an excess policy only after it exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability occurred.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Energy Company Covered for Business Interruption Losses Caused by Fire and Resulting in Town-Ordered Shutdown
February 15, 2021 —
David G. Jordan - Saxe Doernberger & Vita, P.C.In the case of NextSun Energy Littleton, LLC v. Acadia Ins. Co., the United States District Court of Massachusetts held that once direct physical damage from a covered peril causes a covered business interruption loss, any increase in the duration of such business interruption, due to the enforcement of an ordinance or law, extends the coverage period provided for lost income. The Court further held that a policy exclusion for business interruption due to the enforcement of any ordinance or law not in force at the time of the loss only applies when the ordinance or law itself, not the enforcement action that it authorizes, was not in force at the time of the loss.
The case involved a solar panel company, NextSun Energy Littleton (NextSun), that operated solar panel arrays providing electricity to the town of Littleton, Massachusetts. Due to a fire, 88 of the solar panels were damaged, and the Town immediately issued a “red-tag” order halting all energy-generating activity pending a safety inspection. The plaintiff purchased insurance for its panels along with “Energy Generating Income” (EGI) coverage, from the defendant, Acadia Ins. Co. (Acadia). The EGI policy covered “direct physical loss or damage” to “renewable energy generating equipment” and also covered the actual loss of surplus power income incurred during the interruption period. However, it excluded interruption of energy-generating income “caused by the enforcement of any ordinance, law, or decree … not in force at the time of loss.”
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David G. Jordan, Saxe Doernberger & VitaMr. Jordan may be contacted at
DJordan@sdvlaw.com
Insurance Lawyers Recognized by JD Supra 2020 Readers' Choice Awards
June 29, 2020 —
Timothy Carroll, Anthony Miscioscia & Gus Sara - White and WilliamsCongratulations to Anthony Miscioscia, partner and Co-Chair of the Insurance Coverage and Bad Faith Group, and associate Timothy Carroll who have been recognized as top authors in Insurance in the 2020 JD Supra Readers' Choice Awards.
The Readers’ Choice Awards recognize top authors and firms for their thought leadership in key topics read by C-suite executives, in-house counsel, media, and other professionals across the JD Supra platform during 2019.
Additionally, JD Supra recognized Subrogation counsel, Gus Sara’s alert "New Hampshire's Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers" as one of the most popular product liability articles in 2019.
The Readers’ Choice Awards reflect a deep dive into JD Supra 2019 reader data, in which they studied total visibility and engagement among readers across many industries interested in certain defining topics. Along with a top firm in each category, JD Supra also features additional reader data, including the top five most-read articles, popular related topics, total number of authors, and other category-specific information.
Reprinted courtesy of White and Williams LLP attorneys
Timothy Carroll,
Anthony Miscioscia and
Gus Sara
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Sara may be contacted at sarag@whiteandwilliams.com
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