Two Worthy Insurance Topics: (1) Bad Faith, And (2) Settling Without Insurer’s Consent
February 20, 2023 —
David Adelstein - Florida Construction Legal UpdatesThe recent Eleventh Circuit Court of Appeals’ decision, American Builders Insurance Company v. Southern-Owners Insurance Company, 56 F.4th 938 (11th Cir. 2023), is an insurer versus insurer case that touches on two important insurance topics: (1) common law bad faith against an insurance company, and (2) an insurer’s affirmative defense that an insured settled a claim without its consent. The Eleventh Circuit provides invaluable legal discussion on these topics that any insured (and an insured’s counsel) need to know and appreciate. While this article won’t go into the granular facts as referenced in the opinion, it will go into the law because it is the law the facts of a case MUST cater to and address.
In this case, a person performing subcontracting work fell from a roof without fall protection and became paralyzed from the waist down. The general contractor had a primary liability policy and an excess policy. The general contractor’s primary liability insurer investigated the accident and assessed the claim. The subcontractor’s liability insurer, which was the primary insurance policy (the general contractor was an additional insured for work the subcontractor performed for the general contractor), did little to investigate and assess the claim and then refused to pay any amount to settle the underlying claim or honor its defense and indemnity obligation to the general contractor.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Montana Trial Court Holds That Youths Have Standing to Bring Constitutional Claims Against State Government For Alleged Climate Change-Related Harms
September 18, 2023 —
Paul A. Briganti & Julia Castanzo - White and Williams LLPOn August 14, 2023, in a “landmark” ruling, a Montana state court held that youth plaintiffs had standing to assert constitutional claims against the State of Montana, its governor and state agencies for “ignoring” the impact of greenhouse gas (GHG) emissions on climate change. Held v. State of Montana, Cause No. CDV-020-307 (1st Judicial Dist. Ct., Lewis & Clark Cty., Mt.). Agreeing with the plaintiffs, the court concluded that a limitation in the Montana Environmental Policy Act (MEPA), which prohibited the state from considering climate impacts when issuing permits for energy projects, violated the plaintiffs’ right under the state constitution to a “clean and healthful environment.”
MEPA, enacted in 1971, states that its purposes include “provid[ing] for the adequate review of state actions in order to ensure that . . . environmental attributes are fully considered by the legislature in enacting laws to fulfill constitutional obligations . . . .” In 2011, the legislature amended the statute to curtail the scope of environmental reviews. Under the so-called MEPA limitation, Montana agencies cannot consider “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Mont. Code Ann. § 75-1-201(2)(a). In 2023, the legislature added a provision that eliminated equitable remedies (i.e., the ability to “vacate, void, or delay a lease, permit, license, certificate, authorization, or other entitlement or authority”) for litigants who “claim that [an] environmental review is inadequate based in whole or in part upon greenhouse gas emissions and impacts to the climate in Montana or beyond Montana’s borders . . . .” Id. § 75-1-201(6)(a)(ii).
Reprinted courtesy of
Paul A. Briganti, White and Williams LLP and
Julia Castanzo, White and Williams LLP
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
Ms. Castanzo may be contacted at castanzoj@whiteandwilliams.com
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"Damage to Your Product" Exclusion Bars Coverage
February 02, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe Arkansas Court of Appeals affirmed the denial of coverage for the insured based upon the exclusion for "damage to your product." S.E. Arnold & Co. v. Cincinnati Ins. Co., 2016 Ark. App. LEXIS 625 (Ark. Ct. App. Dec. 7, 2016).
The homeowners paid the insured, S.E. Arnold & Company, over $78,000 to supply and install wood flooring in their residence. The homeowners eventually sued Arnold, alleging that the products and services as provided by Arnold had breached its contract, Arnold was negligent, and it violated applicable rules, regulations, and laws. Specifically, the homeowners alleged that the flooring as sold and installed had splinters, cupping occurred across the width of the individual pieces of flooring, and installation was in contradiction to industry standards and applicable building codes.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Trio of Environmental Decisions from the Fourth Circuit
August 28, 2018 —
Anthony B. Cavender - Gravel2GavelWithin the past few weeks, the U.S. Court of Appeals for the Fourth Circuit has issued some very significant rulings regarding the construction of new natural gas pipelines. These cases are Berkley, et al. v. Mountain Valley Pipeline, LLC, decided July 25; Sierra Club, Inc., et al., v. U.S. Forest Service, The Wilderness Society, et al., v. U.S. Forest Service, and Sierra Club, Inc. et al. v. U.S. Department of the Interior, decided July 27, 2018; and Sierra Club v. U.S. Department of the Interior and Defenders of Wildlife, et al., v. U.S. Department of the Interior, decided August 6, 2018. The first two cases involve the Mountain Valley Pipeline, and the last case involves the Atlantic Coast Pipeline.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Happenings in and around the 2016 West Coast Casualty Seminar
April 20, 2016 —
Beverley BevenFlorez-CDJ STAFFThe West Coast Casualty Construction Defect Seminar returns to the Disneyland Hotel next month (May 12th-13th) and the Construction Defect Journal has compiled a list of concerts, sporting events, and museum exhibitions taking place in and around Anaheim. Whether you like to spend your personal time checking out a new band, or watching your favorite Angel slide into home, or perusing the local art museum, there is something to spark your interest.
CONCERT VENUES
THE HOUSE OF BLUES IN ANAHEIM
Located in Downtown Disney, The House of Blues in Anaheim is a short walk from the convention hall.
Breakthru Entertainment Presents…
Tuesday, May 10th Starting at 630pm
For More Information...
Totally 80’s Live
Friday, May 13th at 7pm
For More Information...
THE GROVE OF ANAHEIM
Near Angel Stadium, the Grove of Anaheim is just a few miles away from the seminar location.
Luca Turilli’s Rhapsody & Primal Fear
Thursday, May 12th Doors Open at 7pm
For More Information and to Purchase Tickets...
SPORTING EVENTS
ANGEL’S STADIUM – BASEBALL
Take care of your popcorn-and-peanuts-and-cracker-jacks fix while cheering for the Angel’s—conveniently just a few miles from the Disneyland Hotel.
Angels v. Cardinals
Tuesday, May 10th at 7:05pm
For More Information and to Purchase Tickets...
Angels v. Cardinals
Wednesday, May 11th at 7:05pm
For More Information and to Purchase Tickets...
FAIRS AND FESTIVALS
Art Crawl Experience
Every quarter, Downtown Anaheim hosts an art walk that includes live entertainment, local artists, as well as food and craft vendors.
Saturday, May 14 from 6pm to 10pm
For More Information...
MUSEUM EXHIBITIONS
MUZEO
This local museum and cultural center is a short drive from the convention hall.
Exhibition: Master Craft: The Art of Woodworking
March 12th, 2016-May 21st, 2016
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 5 pm
For More Information...
Exhibition: “A Touch of Africa in Anaheim” by Da African Village: the Art of Senegal and neighboring countries
April 30th, 2016 – May 30th, 2016
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 5 pm
For More Information...
BOWERS MUSEUM (Santa Ana)
Voted “The Best Museum in Orange County” by OC Register Readers for 16 consecutive years, this arts and cultural center is worth the fifteen minute drive.
Exhibition: Once Upon a Time
April 16th, 2016-August 28th, 2016
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
For More Information...
Exhibition: Mummies of the World
March 19th, 2016-September 5th, 2015
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
For More Information...
Exhibition: Mystery from the Tomb: The Face Beneath the Mask
December 8th, 2015-TBD
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
For More Information...
Exhibition: Popul Vuh: Watercolors of Diego Rivera
December 12th, 2015 – May 29th, 2016
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
For More Information...
Lecture: Popul Vuh: Art in Context (6-Part series): The Rise of Modernism in Europe: Realist Shifts in the Nineteenth Century (Part 3)
Wednesday, May 11 at 11am-12pm
For More Information...
Lecture: ARCE Weekend Lecture: Sudanese Antiquity: New Insights from the ‘Bio-archaeology of Nubia Expedition (BONE)’
Saturday, May 14 at 130pm-3pm
For More Information...
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The Texas Supreme Court Limits the Use of the Economic Loss Rule
September 03, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to David Fisk of Kane Russell Coleman & Logan PC, in an article published by JD Supra Business Advisor, “[T]he Texas Supreme Court issued a per curium opinion limiting the application of the economic loss doctrine or rule, as it is referred to in Texas, in the context of residential construction defect claims.”
In Chapman Custom Homes, Inc. v Dallas Plumbing Co., the court “ruled that a plumbing subcontractor assumes an implied duty not to flood or otherwise damage a home while performing its contract with a builder” and that “the economic loss rule does not apply in this context.”
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Not So Fast, My Friend: Pacing and Concurrent Delay
April 25, 2022 —
William E. Underwood - ConsensusDocsWhen critical path activities are delayed by the owner (or another party), contractors will sometimes “pace,” or slow down, other activities to match the owner-caused delay. After all, why should the contractor hurry up and wait? But paced activities can often appear as concurrent delays on a project’s overall schedule. And all too often, contractors fail to contemporaneously document their efforts to pace work. Not only can this create avoidable disputes with owners and other contractors, but it can also create future roadblocks to the recovery of delay damages. This article examines the interplay between pacing and concurrent delay[1] and what contractors should do to minimize risk and preserve their rights to obtain more than a simple time extension for project delays.
Pacing versus Concurrent Delay
As a basic matter, most contracts allocate responsibility/liability for a schedule delay to the party that caused the delay. For example, if an owner is contractually required to provide equipment for a contractor to install, then the owner likely bears responsibility for any delays caused if the equipment is delivered late. If, however, the contractor was also behind schedule on other activities during this time and the project would have been delayed regardless of the owner’s late deliveries, then the delay is probably concurrent. And the contractor will generally be entitled to only an extension of time, and no other monetary relief.
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William E. Underwood, Jones Walker LLP (ConsensusDocs)Mr. Underwood may be contacted at
wunderwood@joneswalker.com
OSHA Joins the EEOC in Analyzing Unsafe Construction Environments
June 26, 2023 —
Cameron S. Hill Sr. - Construction ExecutiveConsistent with the Equal Employment Opportunity Commission's (EEOC) Strategic Enforcement Plan (SEP)
published in January 2023, which noted an increased focus on the construction industry as it relates to harassment and discrimination issues within the workplace and around hiring and the advancement of minorities, the Occupational Safety and Health Administration (OSHA) is following suit. At the end of March 2023, OSHA leaders announced another arrow in their quiver: OSHA has new authority through its Wage and Hour Division to issue certifications supporting applications for "U" nonimmigrant status and "T" nonimmigrant status visas.
Reasoning that workers' immigration status, social inequalities or differences in culture can cause them to fear retaliation for identifying unsafe work environments and criminal activity, such as trafficking, murder, blackmail, extortion and other serious crimes, Assistant Secretary of Labor for Occupational Safety and Health, Doug Parker
stated, "The Occupational Safety and Health Administration's top priority is to ensure workers are safe and can exercise their rights, regardless of their demographic or immigration status. A key part of that mission is expanding our work to combat workplace inequities that can create hazards and affect vulnerable workers who are likely to be exploited or victims of crimes. Our vision extends beyond setting standards, inspecting workplaces and providing training. Becoming a visa-certifying agency gives us one more tool in our wide-ranging efforts to better protect workers and their rights on the job."
Reprinted courtesy of
Cameron S. Hill Sr., Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Hill may be contacted at chill@bakerdonelson.com
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