Congratulations 2016 DE, NJ, and PA Super Lawyers and Rising Stars
June 02, 2016 —
White and Williams LLPTwenty-one White and Williams lawyers have been named by Super Lawyers as a Delaware, New Jersey, or Pennsylvania "Super Lawyer" while ten received "Rising Star" designations. Each lawyer who received the distinction competed in a rigorous selection process which took into consideration peer recognition and professional achievement. The winners named to this year's Super Lawyer list represent a multitude of practices throughout the firm.
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White and Williams LLP
U.S. Home Prices Rose More Than Estimated in February
May 07, 2015 —
Kathleen M. Howley – BloombergU.S. house prices rose more than economists estimated in February as the strongest labor market in seven years gives Americans the confidence to bid on property.
Prices climbed 0.7 percent on a seasonally adjusted basis from January, the Federal Housing Finance Agency said in a report Wednesday. The average economist estimate was for a 0.5 percent increase, according to data compiled by Bloomberg.
Housing demand is climbing as consumer confidence hovers close to an eight-year high. Sales of existing homes rose in March by the most in four years, the National Association of Realtors reported today. The number of U.S. households jumped by almost 2 million in 2014, according to data compiled by Bloomberg.
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Kathleen M. Howley, BloombergMs. Howley may be contacted at
kmhowley@bloomberg.net
Iowa Court Holds Defective Work Performed by Insured's Subcontractor Constitutes an "Occurrence"
July 28, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe Iowa Supreme Court held that property damage caused by a subcontractor's defective work was an "occurrence." Nat'l Sur. Corp. v. Westlake Invs., LLC, 2016 Iowa LEXIS 71 (Iowa June 10, 2016).
In 2002, the insureds, the developers and general contractor, began construction on an apartment complex. While the complex was still under construction, it was purchased by Westlake Investments, LLC.
During construction, numerous problems surfaced, including visible water penetration issues in several buildings. In February 2008, Westlake sued the insureds, seeking to recover lost profits, repair costs, and other damages under tort and contract theories. Arch Insurance Group defended under the primary policy. A settlement was eventually reached whereby a consent judgment for $15,600,000 was entered against the insureds and in favor of Westlake. Arch contributed its policy limits of $1,000,000 to the settlement. Other third party defendants contributed $1,737,500, leaving $12,762,500 of the judgment unsatisfied. The insureds assigned rights under their excess policy with National Surety Corporation (NSC) to Westlake. NSC's policy was a following-form policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Top 10 Insurance Cases of 2023
January 29, 2024 —
Jeffrey J. Vita & Michael A. Amato - Saxe Doernberger & Vita, P.C.Federal and state courts tackled many interesting insurance-related issues this past year. Perhaps no state had a more impactful year than Illinois, which held that construction defects could constitute an occurrence, that a LEG 3 “extension” attempting to preclude coverage for faulty or defective workmanship was ambiguous as a matter of law (applying Illinois law), and that ostensibly prohibitive “catch-all exclusions” can render policy language ambiguous in favor of coverage. Other courts wrestled with procedural inquiries, such as the legal duty of a broker in providing notice to an insurer or the ability of an insured to recoup its attorneys’ fees in pursuing a coverage action against its insurer. These are merely a sampling of the impactful insurance decisions rendered in 2023.
Each year, we endeavor to identify cases of general interest to our clients and the broader insurance community. Specifically, we attempt to identify trends, cases of first impression, cases illustrating conflicts among the courts, or cases dealing with emerging issues. We now proudly unveil the top 10 most influential coverage decisions of 2023 and look ahead to a few cases to watch as 2024 unfolds.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
Michael A. Amato, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at JVita@sdvlaw.com
Mr. Amato may be contacted at MAmato@sdvlaw.com
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Building 47 Bridges in Two Years
December 23, 2023 —
Dan Sopczak - Construction ExecutiveEvery construction project has its challenges, but some truly push the boundaries of what is achievable in the heavy civil industry. When the Indiana Department of Transportation sought to modernize its I-65/I-70 North Split Interchange in Indianapolis, Indiana, its request for proposals included building 47 new bridges and rehabilitating six additional bridges on an ambitious two-year timeline—905 days to substantial completion.
“Three design-build teams responded to the RFQ, and the same three teams responded to the RFP,” according to INDOT Strategic Communications Director Natalie Garrett. “Proposals were scored and evaluated using the best-value evaluation process defined by INDOT. The score was a combination of a technical proposal score and a price score.”
Reprinted courtesy of
Dan Sopczak, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Just When You Thought the Green Building Risk Discussion Was Over. . .
May 25, 2020 —
Christopher G. Hill - Construction Law MusingsAs a reader of Construction Law Musings, you no doubt realize that I am a big proponent of “green” or sustainable building. I have also been known to sound a bit like Eeyore when discussing the charge into the breach of green building without considering the potential risks. Thankfully, and despite some of the risk predictions made here (and elsewhere for that matter) there have not been but so many major court cases relating to these risks.
However, as a recent article in ENR Magazine warns, this lack of litigation does not mean that you should let your guard down. Just because the economy, warnings by attorneys and others, and possible lack of financial incentive to sue have kept the litigation numbers down does not mean that the risks have gone away. LEED requirements, time horizons and other risks that have become evident during the process of vetting green building contracts and practices still must be dealt with in contracts and insurance policies. These risks are well laid out in the ENR article and in other places here at Musings so I won’t outline them in detail here.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court
June 21, 2021 —
Jeremy S. Macklin - Traub Lieberman Insurance Law BlogIn the recent case of Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.”
5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend.
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Jeremy S. Macklin, Traub LiebermanMr. Macklin may be contacted at
jmacklin@tlsslaw.com
