ASBCA Validates New Type of Claim Related to Unfavorable CPARS Review [i]
May 03, 2017 —
John P. Ahlers - Ahlers & Cressman PLLCFor government contractors, an unfavorable performance rating review posted to the Contractor Performance Assessment Reporting System (“CPARS”) can be extremely costly. Many of the government-negotiated solicitations include past performance as an important, and sometimes even primary, evaluation factor for contract award. An unfavorable CPARS review on a past contract can cause the contractor to incur substantial extra costs in addressing the unfavorable review with contracting officers on future solicitations, and, in some instances, the contractor saddled with an unfair or inaccurate CPARS may have to challenge the review and recover some of these costs.
Both the Federal Court of Claims and the Armed Services Board of Contract Appeals (“ASBCA”) have held that they have jurisdiction to hear Contract Dispute Act claims regarding unfair and/or inaccurate CPARS review. The relief available to contractors until this year was a declaration from the Court of Claims or Board that an unfair or inaccurate CPARS review was arbitrary and capricious. Neither the Board nor the Court had the authority or power to order the contracting officer to change the unfavorable review. The contractor who received a declaration from the Court or the Board regarding an unfavorable CPARS review may use it in the future to explain the unfavorable review when bidding new government work; however, the unfavorable review remains in the CPARS system and shows up on all future solicitations, the Board or Court decision notwithstanding.
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John P. Ahlers, Ahlers & Cressman PLLCMr. Ahlers may be contacted at
jahlers@ac-lawyers.com
Home Prices in 20 U.S. Cities Rise Most Since February 2006
January 29, 2014 —
Jeanna Smialek – BloombergHome prices in 20 U.S. cities rose in November from a year ago by the most in almost eight years, providing a boost to household wealth.
The S&P/Case-Shiller index of property prices in 20 cities climbed 13.7 percent from November 2012, the biggest 12-month gain since February 2006, after a 13.6 percent increase in the year ended in October, a report from the group showed today in New York. The median projection of 31 economists surveyed by Bloomberg called for a 13.8 percent advance.
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Jeanna Smialek, BloombergMs. Smialek may be contacted at
jsmialek1@bloomberg.net
Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits
August 10, 2020 —
Christine Kroupa, John Palmeri & Katelyn Werner - Gordon & ReesDespite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met.
The Bill:
On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:
- The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
- The information is not available to the insurer without the assistance of the insured;
- The written request provides the insured 60 days to respond;
- The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
- The insurer gives the insured an opportunity to cure, which must:
- Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
- Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.
Reprinted courtesy of Gordon & Rees attorneys
Christine Kroupa,
John Palmeri and
Katelyn Werner
Ms. Kroupa may be contacted at ckroupa@grsm.com
Mr. Palmeri may be contacted at jpalmeri@grsm.com
Ms. Werner may be contacted at kwerner@grsm.com
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Sixth Circuit Affirms Liability Insurer's Broad Duty to Defend and Binds Insurer to Judgment Against Landlord
September 07, 2020 —
Michael V. Pepe & Janie Reilly Eddy - Saxe Doernberger & VitaIn a victory for policyholders, the Sixth Circuit affirmed that a landlord’s insurer owed a duty to defend the landlord in a bodily injury claim arising out of a fire that killed three and injured one. The Court held that the insurer breached its duty to defend and was bound to the insured’s $3 million consented judgment.
Transition Investments LLC, an owner of three properties in the Detroit area, purchased a general liability insurance policy with Hamilton Specialty Insurance Company to insure its properties. At one of the properties, a faulty stove started a fire, destroying the building, injuring one person and killing three others. The estates of the deceased and the injured party sued Transition in Michigan state court. In their complaint, the plaintiffs contended that Transition failed to provide a habitable premise and neglected to maintain the property’s stove, which allegedly caused the fire. The plaintiffs argued that Transition’s negligent maintenance of the property led to the fire and the resulting injuries. Transition subsequently tendered the claim to Hamilton. Hamilton claimed that the insurance policy did not cover the fire’s damages and refused to participate in the state court litigation. Ultimately, Transitions entered into a consent judgment with the plaintiffs for $3 million.
Reprinted courtesy of
Michael V. Pepe, Saxe Doernberger & Vita and
Janie Reilly Eddy, Saxe Doernberger & Vita
Mr. Pepe may be contacted at mvp@sdvlaw.com
Ms. Eddy may be contacted at jre@sdvlaw.com
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Care, Custody or Control Exclusion Requires Complete and Exclusive Control by Insured Claiming Coverage
July 30, 2019 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn McMillin Homes Construction v. Natl. Fire & Marine Ins. Co. (No. D074219, filed 6/5/19) a California appeals court held that a “care, custody or control” exclusion did not bar coverage for defense of a general contractor as an additional insured under a subcontractor’s policy, because the exclusion requires exclusive control, but the facts and allegations posed a possibility of shared control with the subcontractor.
McMillin was the general contractor on a housing project and was added as an additional insured to the roofing subcontractor’s policy pursuant to the construction subcontract. The homeowners sued, including allegations of water intrusion from roof defects. McMillin tendered to the roofing subcontractor’s insurer, which denied a defense based on the CGL exclusion for damage to property within McMillin’s care, custody or control.
In the ensuing bad faith lawsuit, McMillin argued that the exclusion required complete or exclusive care, custody or control by the insured claiming coverage, which was not the case for McMillin. The insurer argued that the exclusion said nothing about complete or exclusive care, custody or control. Further, the intent to exclude coverage for damage to any and all property in McMillin’s care, custody or control, to whatever degree, was demonstrated by the fact that the additional insured endorsement in question was not an ISO CG2010 form, but a CG2009 form, which expressly adds a care, custody or control exclusion to the additional insured coverage not found in the CG2010 form. The argument was that the CG2009 form evidences an intent to conclusively eliminate coverage for property in the additional insured’s care, custody or control. In addition, the insurer argued that this result was also reinforced by its inclusion of an ISO CG2139 endorsement in the roofer’s policy, which eliminated that part of the “insured contract” language of the CGL form, defining an “insured contract” as “[t]hat part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” The insurer’s argument was that by having eliminated coverage for contractual indemnity or hold harmless agreements, it had “closed the loop” of eliminating additional insured coverage for construction defect claims.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Climate Change a Factor in 'Unprecedented' South Asia Floods
July 18, 2022 —
The Associated Press (Aniruddha Ghosal & Al-Emrun Garjon) - BloombergSylhet, Bangladesh (AP) -- Scientists say climate change is a factor behind the erratic and early rains that triggered unprecedented floods in Bangladesh and northeastern India, killing dozens and making lives miserable for millions of others.
Although the region is no stranger to flooding, it typically takes place later in the year when monsoon rains are well underway.
This year's torrential rainfall lashed the area as early as March. It may take much longer to determine the extent to which climate change played a role in the floods, but scientists say that it has made the monsoon — a seasonable change in weather usually associated with strong rains — more variable over the past decades. This means that much of the rain expected to fall in a year is arriving in a space of weeks.
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Bloomberg
In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine
March 28, 2018 —
Garret Murai – California Construction Law BlogWe’ve written before about the
Privette doctrine, which
generally holds that a higher-tiered party is not liable for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine,
here,
here,
here and
here. We’ve also talked about some of the
exceptions to the
Privette doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the
Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee.
In the next case,
Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company.
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Garret Murai, Wendel, Rose, Black, & Dean, LLPMr. Murai may be contacted at
gmurai@wendel.com
Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue
January 04, 2018 —
Nadine M. Post - Engineering News-RecordOriginally Published by CDJ on March 22, 2017
The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past.
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Nadine M. Post, ENRMs. Post may be contacted at
postn@enr.com
