Understanding Lien Waivers
September 03, 2015 —
Beverley BevenFlorez-CDJ STAFFZlien on their Construction Payment Blog explained how to read a lien waiver. According to Zlien, “Lien waivers are meant to function as a sort of receipt – if a party is paid a certain amount that party waives his or her right to claim a lien for that amount. “ The blog post breaks down the types of lien waivers, including Conditional Waivers, Unconditional Waivers, Final Payment, and Progress Payment.
Once the type of waiver has been identified, Zlien suggests checking the length: “Because the party signing the lien waiver may feel obligated to sign whatever document is presented in order to get paid, unscrupulous or oblivious parties may attempt to use the lien waiver as a legal positioning tool and cram all sorts of other language into the lien waiver that really has no legitimate right or reason to be there.” Zlien recommends that if the document is long or confusing to consult an attorney.
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Rainwater Collecting on Rooftop is not Subject to Policy's Flood Sublimits
October 15, 2024 —
Tred R. Eyerly - Insurance Law HawaiiResponding to a certified question from the First Circuit, the Supreme Judicial Court of Massachusetts determined that rainwater collecting on the insureds' rooftop and causing interior damage was not "flood" as defined in the policy and subject to sublimits. Zurich Am. Ins. Co. v. Medical Properties Trust, Inc., 2024 Mass. LEXIS ___ (Mass. July 23, 2024).
A severe thunderstorm caused heavy rain and strong winds which damaged a hospital. The hospital was owned by Medical Properties Trust, Inc. (MPT) and leased to Steward Health Care System LLC (Steward). Ground water accumulated and flooded the basement. Rainwater also accumulated on the hospital's parapet roofs and on the second-story courtyard, and eventually seeped through the parapet roofs and courtyard to the hospital's upper floors, causing damage to the building and property within.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Slip and Fall Claim from Standing Water in Parking Garage
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFIn Metairie, Louisiana, Paul Unkauf filed a lawsuit after he allegedly “slipped and fell on standing water in the parking garage,” located at Heritage Plaza, according to the Louisiana Record. The defendants, Stewart Development LLC, Stirling Properties LLC, Platinum Parking LLC and First Financial Company, are “accused of permitting standing water to dampen the pathway leading to the elevator bank, failing to dry the pathway, failing to warn of the hazard, failing to properly inspect the area in question, failing to provide a safe means of exit and entrance, being careless and negligent under the circumstances, failing to properly identify and correct defects in design and failing to properly supervise and train employees,” reports the Louisiana Record.
Unkauf is seeking an “unspecified amount in damages” for “medical expenses, physical pain, loss of function, mental anguish, emotional distress, loss of enjoyment of life and permanent partial disability.”
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New York High Court: “Issued or Delivered” Includes Policies Insuring Risks in New York
December 20, 2017 —
Bethany Barrese & Samantha Martino - Case Alert BlogOn November 20th, the New York Court of Appeals reinstated a case seeking more than six million dollars in damages against the insurers for DHL Worldwide Express Inc. (“DHL”), originating from a fatal head-on car crash between Claudia Carlson and a truck owned by MVP Delivery and Logistics Inc. (“MVP”), a DHL contractor. The truck, which bore DHL’s logo, was owned by MVP and driven by an MVP employee. The MVP employee was running an errand unrelated to his job at the time of the accident. Mrs. Carlson’s husband sued the employee, DHL, and MVP. The jury award of $20 million was reduced to $7.3 million by the Appellate Division. MVP’s insurer paid Mr. Carlson just over $1 million, and the employee assigned his rights to any other insurance coverage to Mr. Carlson
Mr. Carlson sued DHL and its insurers, seeking the balance of the outstanding judgment pursuant to New York Insurance Law § 3420. The defendants successfully moved to dismiss Mr. Carlson’s claims, which dismissal was affirmed by the Appellate Division on the basis that § 3420 did not apply since the policies in question were not “issued or delivered” in New York; they had been issued in New Jersey and delivered in Washington and Florida. The Court of Appeals was subsequently presented with two questions: (1) whether the DHL policies fell within the purview of Insurance Law § 3420 as policies “issued or delivered” in New York; and (2) whether MVP was an “insured” pursuant to the “hired auto” provisions of DHL’s policies.
Reprinted courtesy of
Bethany Barrese, Saxe Doernberger & Vita, P.C. and
Samantha Martino, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at blb@sdvlaw.com
Ms. Martino may be contacted at smm@sdvlaw.com
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Contract’s Definition of “Substantial Completion” Does Not Apply to Third Party for Purposes of SOL, Holds Court of Appeal
June 15, 2020 —
Garret Murai - California Construction Law BlogThose of you in the construction industry know that the two primary statutes of limitation are the 4-year year statute of limitations for patent defects and 10-year statute of limitations for latent defects. Both statutes begin to run on “substantial completion.”
In Hensel Phelps Construction Co. v. Superior Court of San Diego, Case No. D076264 (January 22, 2020), the 4th District Court of Appeal examined whether the term “substantial completion,” as used in Civil Code section 941, which applies to residential construction, can be defined by the parties’ contract and applied to third-parties.
The Hensel Phelps Case
Hensel Phelps Construction Co. entered into a prime construction contract with the owner and developer of a mixed-use project in San Diego. Hensel Phelps was the general contractor on the project. The project included a residential condominium tower which would eventually be managed and maintained by Smart Corner Owners Association. Smart Corners was not a party to the contract.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Circuit Court Lacks Appellate Jurisdiction Over Order Compelling Appraisal
August 21, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventh Circuit determined it lacked appellate jurisdiction over an order issued by the district court compelling an appraisal. Breakwater Commons Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 14459 (11th Cir. June 9, 2023).
Following Hurricane Irma, Breakwater Commons Association filed a claim with Empire Indemnity Insurance Company for property damage. Empire agreed to cover some of the damage to buildings, but a dispute arose over the amount of loss. Breakwater sought to invoke the appraisal provision in the policy. Empire refused to engage in an appraisal. Breakwater sued, and filed a motion to compel appraisal and to stay the proceedings pending the completion of the appraisal process.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
SNC-Lavalin’s Former Head of Construction Pleads Guilty to Bribery, Money Laundering
October 01, 2014 —
Beverley BevenFlorez-CDJ STAFFRiadh Ben Aissa, a former SNC-Lavalin executive, “pleaded guilty to charges including bribery and money laundering in Switzerland, according to a court filing released on Wednesday,” reported the Wall Street Journal.
SNC-Lavalin “issued a separate statement acknowledging the court's acceptance of Mr. Ben Aissa's guilty pleas, adding it was recognized as ‘an injured party’ in the case and would recover an unspecified amount of money from him.”
Chief Executive Robert Card stated, “SNC-Lavalin's goal is nothing less than to set a new standard for clean business in the engineering and construction industry,” as quoted by the Wall Street Journal. “We've adopted a zero-tolerance policy for ethics violations of any kind. We have the right people in place and systems and procedures which are designed to protect the company and its stakeholders from future fraudulent actions."
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Construction Warranties and the Statute of Repose – Southern States Chemical, Inc v. Tampa Tank & Welding Inc.
January 20, 2020 —
David R. Cook - AHC Construction and Procurement BlogIn a recent holding by the Georgia Court of Appeals, the court held that Georgia’s eight-year statute of repose applied to bar the project owner’s warranty claims. The renovation work by the contractor on the owner’s chemical tank constituted an improvement of real property, and thus, the statute of repose bared any claims eight years after substantial completion thereof. In addition, the court rejected the project owner’s claim that it qualified as a third-party beneficiary of an extended warranty contained in a report given by a subcontractor to the contractor.
Factual Background
In 2000, Southern States Phosphate and Fertilizer Company (“Southern States”) hired Tampa Tank & Welding, Inc (“Tampa Tank”) to renovate a tank to hold sulfuric acid. The parties’ written contract contained an express one-year warranty for material and workmanship from the date of completion. Two years later, in January 2002, the tank renovation was completed. Tampa Tank contracted with Corrosion Control Inc. (“CCI”) to design, assist with, and test the cathodic corrosion system. CCI provided only consultation and did not provide any onsite installation. Upon completion of installation, CCI supplied a report to Tampa Tank that the system was properly installed and fully functioning. Additionally, a post–installation report from CCI to Tampa Tank calculated an estimated life expectancy of forty-three to forty-five years.
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com