I’m Sorry Ms. Jackson, I [Sovereign Immunity] am For Real
June 08, 2020 —
Greggory Jacobs - Florida Construction Law News BlogThe Supreme Court of Florida issued its opinion in Florida Highway Patrol v. Jackson, 2020 Fla. LEXIS 108 (Fla. Jan 23, 2020), which answered the following certified question of great public importance:
Does rule 9.130 [(A)(3)(C)(XI)] permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?
The Court’s answer to this question was “no.” But this opinion stands for much more than just a negative answer to a certified question. Indeed, this opinion has significant implications upon procedural and substantive areas of construction law, which may affect agents of the state of Florida, including Construction Engineering and Inspection professionals and consultants (“CEI”).
Procedurally, the Court recognizes that Fla. R. App. P. 9.130 insufficiently protects the public and governmental interests as “it leaves too great a risk that erroneous denials of operational sovereign immunity will go unreviewed until it is too late.” Id. at * 19. By extension of this risk, the Jackson Court announced that “courts should determine entitlement to sovereign immunity as early as the record permits.” Id. at * 18. In fact, on that basis, courts can address a motion for summary judgment asserting entitlement to sovereign immunity even if there are outstanding disputes as to, say, the existence of a duty of care. Id. at 17-18. Accordingly, and in an effort to remedy the risk of erroneous denials going unreviewed until it is too late, the Court amended Fla. R. App. P. 9.130 to expand appellate review of nonfinal orders denying sovereign immunity. Jackson, 2020 Fla. LEXIS 108 at * 19; In re Amendments to Fla. Rule of Appellate Procedure 9.130, No. SC19-1734 (Fla. Jan. 23, 2020). The new form of Fla. R. App. P. 9.130 cements the policy mentioned above because it allows an appeal of a nonfinal order denying a motion for summary judgment due to entitlement to sovereign immunity. Meanwhile, under the old rule, the order was only appealable if the trial court order determined – as a matter of law – that a party was not entitled to sovereign immunity. As such, the new rule focuses on what was argued in the motion as opposed to what was written in the order.
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Greggory Jacobs, Cole, Scott & Kissane, P.A.Mr. Jacobs may be contacted at
greggory.jacobs@csklegal.com
Latosha Ellis Joins The National Black Lawyers Top 40 Under 40
January 20, 2020 —
Hunton Insurance Recovery BlogLatosha M. Ellis, an associate in Hunton Andrews Kurth’s Insurance Coverage Practice, was recently named to The National Black Lawyers Top 40 Under 40 class of 2019.
The professional honorary association recognizes attorneys under 40 from each state who demonstrate superior leadership, reputation, influence, stature and profile as a black lawyer. Selection is by invitation only following a multi-phase review process that includes peer nominations and third party research.
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Why You Make A Better Wall Than A Window: Why Policyholders Can Rest Assured That Insurers Should Pay Legal Bills for Claims with Potential Coverage
March 14, 2018 —
Alan Packer and Graham Mills - Newmeyer & Dillion, LLPUnfortunately, policyholders, such as manufacturers and contractors, routinely face the unnecessary challenge of how to access all of the insurance coverage which they have purchased. Frequently, the most pressing need is to get the insurance company to pay the legal bills when the policyholders have been sued. The recent Iowa federal district court opinion in
Pella Corporation v. Liberty Mutual Insurance Company should help a policyholder in a dispute to require its insurance company to pay those legal bills sooner rather than later by highlighting that the duty to defend arises from the potential for coverage, and the insurer may not force the policyholder to prove the damage to obtain a defense.
In
Pella, a window manufacturer purchased several years of insurance coverage from Liberty Mutual. Similar to many companies, Pella had many “layers” of insurance coverage in any given year. These layers collectively function like a tower. The general idea is that each layer provides a certain amount of coverage after the insurance policy below it had paid its money. The Liberty Mutual insurance policies provided excess coverage.
After the
Pella window manufacturer made and sold its windows, it was sued in numerous lawsuits alleging that its windows were defective and that those defective windows caused a wide variety of damage to the structures in which they were installed. The window manufacturer tendered those lawsuits to its insurance companies in its tower of coverage, asking that the insurance companies pay its legal bills incurred in its defense. As to Liberty Mutual, the window manufacturer argued that the Liberty Mutual insurance policies were triggered, and so obligated to reimburse it, if a window was installed during the years that those policies provided coverage or if there was a mere allegation that a window was installed during the years that those policies provided coverage. Liberty Mutual opposed, arguing that the date of installation of the windows was insufficient to trigger the policies, and that the manufacturer was required to demonstrate the date that damage actually occurred to trigger a defense.
The key issue before the
Pella Court in this decision was a simple one: which insurance policies, if any, issued by Liberty Mutual had an obligation to pay the window manufacturer’s legal bills? The answer to that question is critical and financially significant. Getting an insurance company to honor its obligations and start paying the legal bills as soon as possible is very important for a policyholder because of the cost of defending oneself in a lawsuit; often the key reason why an insurance policy is even purchased is to provide the policyholder with the right to call upon the insurance company’s financial resources to defend it should it be sued.
In a ruling that will be welcomed by policyholders, the
Pella Court held that Liberty Mutual’s multiple insurance policies were triggered, and so obligated to pay for the window manufacturer’s defense, if one of two events occurred during the years in which those insurance policies provided coverage: (1) a window was actually installed during a year when the insurance policy provided coverage or (2) the window was alleged to be installed in the year that the insurance policy provided coverage. The Court agreed with the policyholder that once the windows were installed, property damage was alleged and “may
potentially have occurred” from that point on, thus the policies on the risk from that point forward. The practical effect of this ruling meant that Liberty Mutual had to reimburse the window manufacturer for the defense fees and costs that it had paid.
While
Pella was decided under Iowa law, the principles upon which it relied are similar to those applied under California law. Importantly, both California and Iowa law hold that an insurance company must provide a defense in response to a claim that is, or could be, covered by the insurance policy. The mere potential that the claim might be covered is enough for the insurance company to be obligated to pay for policyholder’s legal fees and costs.
Establishing that an insurance company must pay legal fees and costs as soon as possible allows a policyholder to save its own money. Why should a policyholder pay legal bills when it purchased an insurance policy as protection to ensure that it did not have to pay those bills? The answer is that a policyholder should not and, under
Pella, the policyholder does not have to. Rather, the insurance company must start paying for that defense from a very early date. Pella confirms for policyholders the position that their insurance companies should pay legal bills earlier rather than later.
Alan Packer is a partner in the Walnut Creek office for Newmeyer & Dillion, LLP, representing homebuilders, property owners, and business clients on a broad range of legal matters, including risk management, insurance matters, wrap consultation and documentation, efforts to counter solicitation of homeowners, subcontract documentation, as well as complex litigation matters. Alan can be reached at alan.packer@ndlf.com.
Graham Mills is a partner in the Walnut Creek offce of Newmeyer & Dillion, LLP, representing clients in the area of complex insurance law with an emphasis on insurance recovery, construction litigation, real estate litigation, and business litigation. He regularly examines and analyzes a wide variety of insurance policies. Graham can be reached at graham.mills@ndlf.com.
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Mechanic’s Liens and Leases Don’t Often Mix Well
May 03, 2021 —
Christopher G. Hill - Construction Law MusingsAs those who read my “musings” here at this construction law blog are well aware, the topic of Virginia mechanic’s liens is one that is much discussed. From the basic statutory requirements to the more technical aspects of these tricky beasts. One aspect of mechanic’s liens that I have yet to discuss in detail it how these liens attach in the situation where the contractor does work for a lessee and not for the owner of the underlying fee interest in the property.
A recent case out of the Western District of Virginia federal court, McCarthy Building Companies Inc. v. TPE Virginia Land Holdings LLC, discusses the interaction of Va. Code 43-20, work on a leasehold, and parties necessary to any litigation relating to a lien for the work on that leasehold. The basic facts, outlined more thoroughly in the linked opinion, are these. MBC provided certain work to TPE Kentuck Solar, LLC on property leased from TPE Virginia Land Holdings, LLC. The lease was for a fixed term and for a fixed amount regardless of the work performed at the property. MBC was unpaid by the Kentuck entity and then recorded a lien on the property and then sued to enforce that lien and for unjust enrichment against TPE Land Holdings. TPE Land Holding filed a motion to dismiss the mechanic’s lien and unjust enrichment counts.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Mitigating Mold Exposure in Manufacturing and Multifamily Buildings
July 31, 2024 —
Laura Champagne - Construction ExecutiveAs hurricanes season and summer storms approach, more apartment complexes, commercial and industrial properties, and public buildings are at risk of leaking and flooding. Water-saturated structures are prime breeding grounds for mold, but there are ways to prevent, detect and remove it before it becomes a serious and costly issue—for buildings and building residents alike. Being proactive limits an owner’s exposure to the liability of debilitating health effects and structural safety concerns.
Mold requires three things to grow: water, food and humidity. Water will stealthily penetrate small porous surfaces of any building material, such as drywall, plaster, wood, concrete or even fabrics. These materials serve as a food source to quickly produce more fungus. Common sources of undetected water flow include foundation problems, poorly installed windows, roof malfunctions, gutter clogs, storm damage, leaky pipes, improper drainage, HVAC issues, faulty appliances, bathroom vent issues and wet building materials. Mold loves humidity and thrives in dark, warm environments, such as attics, basements, lofts, building corners and bathrooms.
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Laura Champagne, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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New York City Council’s Carbon Emissions Regulation Opposed by Real Estate Board
July 01, 2019 —
Kristen E. Andreoli - White and William's Taking Care of Business BlogOn April 10, 2019, the New York City Council adopted Intro No. 1253 – the largest effort in a series of bills known as the Climate Mobilization Act. Intro No. 1253 enacts new regulations to reduce the city’s current largest source of carbon emissions – the operation of buildings.
Jared Brey, in his April 25, 2019 article in U.S. News and World Report, “How an Evolving Movement Pushed NYC to Address the Climate Crisis,” states that “[i]n the city, around 70% of carbon emissions are produced by buildings, and around half of all building emissions are produced by just 2% of structures larger than 25,000 square feet that are covered by the bill.”
The level of development, population density and relative economic power of a city such as New York have made this bill particularly interesting to other jurisdictions around the globe which may be considering their own similar legislation. In his article, Brey cites David Miller, a former mayor of Toronto and the North American regional director for C40, a group of cities coordinating strategies to meet the goals of the Paris Agreement:
“I think what New York has done is globally significant … It’s really a huge step forward, using the city’s powers and influence to directly address a huge source of greenhouse gas emissions without waiting for the national government or the international community to act.”
Several other jurisdictions have already begun to approach this issue, generally either by passing bills or creating task forces to further investigate how to meet stated emissions reduction goals. In 2018, Governor Jerry Brown of California signed an executive order with a stated goal of net-zero carbon emissions within the state by the year 2045. The California State Assembly subsequently passed a bill creating a task force to investigate the potential to reduce the emission of greenhouse gasses by both commercial and residential buildings by 2030, although their plan is not due until January 1, 2021. The city of San Jose has implemented new building standards for all new residential buildings to be net-carbon neutral by 2020, and all new commercial buildings must be so by 2030.
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Kristen E. Andreoli, White and Williams LLPMs. Andreoli may be contacted at
andreolik@whiteandwilliams.com
Is Privity of Contract with the Owner a Requirement of a Valid Mechanic’s Lien? Not for GC’s
July 05, 2021 —
Christopher G. Hill - Construction Law MusingsAs any reader of this construction law blog knows, mechanic’s liens make up much of the discussion here at Construction Law Musings. A recent case out of Fairfax County, Virginia examined the question of whether contractual privity between the general contractor and owner of the property at issue is necessary. As a reminder, in most situations, for a contract claim to be made, the claimant has to have a direct contract (privity) with the entity it sues. Further, for a subcontractor to have a valid mechanic’s lien it would have to have privity with the general contractor or with the Owner.
The Fairfax case, The Barber of Seville, Inc. v. Bironco, Inc., examined the question of whether contractual privity is necessary between the general contractor and the Owner. In Bironco, the claimant, Bironco, performed certain improvements for a barbershop pursuant to a contract executed by the two owners of the Plaintiff. We wouldn’t have the case here at Musings if Bironco had been paid in full. Bironco then recorded a lien against the leasehold interest of The Barber of Seville, Inc., the entity holding the lease. The Plaintiff filed an action seeking to have the lien declared invalid because Brionco had privity of contract with the individuals that executed the contract, but not directly with the corporate entity.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Uneven Code Enforcement Seen in Earthquake-Damaged Buildings in Turkey
February 14, 2023 —
Jeff Rubenstone & Neelam Matthews - Engineering News-RecordThe aftermath of the Feb. 6 earthquakes and aftershocks in central Turkey has begun to shift from immediate search-and-rescue efforts to a grim cataloguing of the extent of the destruction, with emergency response teams in Turkey and Syria beginning the work of evaluating the condition of thousands of buildings and infrastructure impacted by the temblors.
Reprinted courtesy of
Jeff Rubenstone, Engineering News-Record and
Neelam Matthews, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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