Pennsylvania Modular Home Builder Buys Maine Firm
December 11, 2013 —
CDJ STAFFExcel Homes, a modular home builder based in Liverpool, Pennsylvania, has bought Keiser Homes, a modular home builder based in Oxford Hills, Maine. Excel sought to increase their capacity, which acquisition of the Oxford Hills facility allows. Excel had previously shown an interest in the property of an Oxford Hills modular home builder that had closed, Oxford Homes, but a decrease in sales of modular homes lead Excel to reconsider the purchase.
Excel Homes plans on doubling the current output of the Oxford Hills facility and will be hiring additional employees. The purchase included all of Keiser’s machinery, trucks, trailers, equipment, and the customer list.
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Break out the Neon: ‘80s Era Davis-Bacon “Prevailing Wage” Definition Restored in DOL Final Rule
August 21, 2023 —
A. Scott Hecker & Ted North - The Construction SeytOn August 8, 2023, the U.S. Department of Labor (DOL)
announced its
final rule related to the Davis-Bacon Act (the “Act”), entitled “Updating the Davis-Bacon and Related Acts Regulations.” However, the official final rule must be published in the Federal Register – likely by week’s end – before going into effect 60 days after publication.
DOL issued its notice of proposed rulemaking (“NPRM”) in March 2022 and received more than 40,000 comments from interested stakeholders. Evaluating and addressing those comments took the better part of a year, as DOL did not send the rule to the Office of Information and Regulatory Affairs (“OIRA”) for White House approval until December 16, 2022. After languishing for months, OIRA has now concluded its review, allowing DOL to move forward with its final rule.
Reprinted courtesy of
A. Scott Hecker, Seyfarth and
Ted North, Seyfarth
Mr. Hecker may be contacted at shecker@seyfarth.com
Mr. North may be contacted at enorth@seyfarth.com
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Court Finds No Coverage for Workplace “Prank” With Nail Gun
April 04, 2022 —
Craig Rokuson - Traub Lieberman Insurance Law BlogIn the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion.
With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
Traub Lieberman Attorneys Lisa M. Rolle and Vito John Marzano Secure Dismissal of Indemnification and Breach of Contract Claims Asserted against Subcontractor
November 24, 2019 —
Lisa M. Rolle & Vito John Marzano - Traub Lieberman PerspectivesOn August 7, 2019, TLSS Partner Lisa M. Rolle and associate Vito John Marzano obtained a dismissal of all claims on behalf of their client, the subfloor subcontractor at the worksite, in a severed action filed in the Supreme Court of the State of New York, County of Kings.
In April 2014, plaintiff commenced suit against several defendants, including the general contractor, after he sustained an injury when he fell through temporary plywood while installing a staircase at a worksite in Brooklyn. In May 2018, plaintiff filed a note of issue and certified the matter as ready for trial. Immediately thereafter, the general contractor initiated a second third-party action against the subcontractor seeking common-law and contractual indemnification and breach of contract. The Court subsequently granted Traub Lieberman’s motion to sever the second third-party action and instructed the general contractor to file a new action.
After the general contractor recommenced suit, Traub Lieberman, on behalf of its client, the subcontractor, immediately moved to dismiss for failure to state a cause of action. In relevant part, Traub Lieberman pointed to the deposition testimony of the general contractor’s principal to establish that the subcontractor had finished its work on the permanent subfloor no less ten months to over a year prior to plaintiff’s accident, and that the subfloor required no alteration, repair or maintenance prior to or as a result of plaintiff’s accident. Further, the general contractor’s testimony pointed to work performed by another subcontractor that directly resulted in plaintiff’s injuries. It was also brought to the Court’s attention that plaintiff had testified that he fell through a temporary plywood floor, and that the subcontractor had only installed a permanent subfloor.
Reprinted courtesy of
Lisa Rolle, Traub Lieberman and
Vito John Marzano, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Marzano may be contacted at vmarzano@tlsslaw.com
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Hunton Andrews Kurth Promotes Insurance Recovery Lawyer Andrea (Andi) DeField to Partner
April 05, 2021 —
Lorelie S. Masters - Hunton Insurance Recovery BlogEffective April 1, 2021, Hunton Andrews Kurth LLP has promoted insurance recovery lawyer,
Andi DeField, and six other attorneys, to
partner. “Andi has been a superstar in our practice since the day she arrived,” said insurance recovery practice head,
Walter Andrews, adding that “Andi’s promotion reflects the incredible hard work she has contributed to the practice and outstanding results she has achieved for our clients over the years.” A native of Miami, Andi ascended through the ranks at Hunton in its Miami office, joining the firm as a contract lawyer before earning promotions to associate, counsel and, now, partner. But Andi’s rapid ascension did not come without much hard work. Since joining the firm, “Andi has, year after year, consistently knocked the cover off the ball in terms of her tireless work ethic, the superior results she has achieved and her extraordinary aptitude for marketing herself, our practice and the firms many other practices,” said insurance recovery partner,
Mike Levine. Levine added, “Andi is an amazing lawyer and a true champion for her clients. I’m proud to now call her my partner.”
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Lorelie S. Masters, Hunton Andrews KurthMs. Masters may be contacted at
lmasters@HuntonAK.com
Renovation Contractors: Be Careful How You Disclose Your Projects
December 09, 2011 —
Derek J. Lindenschmidt, Colorado Construction LitigationIn Palu and Beyer v. Toney, 2011 WL 2560249 (Bankr. D. Colo.), the United States Bankruptcy Court for the District of Colorado determined that a Colorado District Court order granting summary judgment in favor of plaintiff home buyers was binding on the Bankruptcy Court in the defendant contractor’s bankruptcy proceeding based on issue preclusion.
Pertinent to this column is the subject matter of the summary judgment motion: Colorado’s Seller’s Property Disclosure (Form LC-18-5-04). In the underlying state court action, the plaintiff home buyers filed a motion for summary judgment contending that the defendant contractor represented to them, through the Seller’s Property Disclosure, that there were no present or past conditions involving moisture or water problems, roof problems or leaks, skylight problems, or gutter downspout problems.
In granting plaintiffs’ motion, the state court determined that the defendant contractor made these representations on her Seller’s Property Disclosure despite witnessing water leaking from the skylight onto the floor and being aware of repairs to the roof, skylight, and interior drywall prior to the sale of the property.
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Reprinted courtesy of Derek J. Lindenschmidt of Higgins, Hopkins, McClain & Roswell, LLP. Mr. Lindenschmidt can be contacted at lindenschmidt@hhmrlaw.com
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Understand Agreements in Hold Harmless and Indemnity Provisions
June 06, 2022 —
Jeffrey Cavignac - Construction ExecutiveOne of the most important provisions in a construction contract is the indemnity provision. An indemnity provision, which usually includes a requirement to hold harmless and defend another party, is included in nearly all construction contracts. Generally speaking, the upstream party (a general contractor or owner, for example) is attempting to shift risk to a downstream party (the general contractor or a subcontractor). In simple terms, subject to certain parameters, the downstream party is agreeing to be responsible for the upstream parties’ mistakes.
DEFINING INDEMNIFICATION
Insurance brokers focused on development and construction businesses get asked frequently: “If we sign this, are we insured?” It would be great if this could be answered “yes” or “no,” but life is rarely that straightforward. To understand whether a specific indemnification is insurable, we have to drill down on the actual provision. Let’s look at a typical indemnification below:
“To the fullest extent permitted by law the Contractor shall indemnify, defend and hold harmless the owner, architect, architect’s consultants and agents and employees of any of them from and against any claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the work whether caused in whole or in part by the contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable.”
Reprinted courtesy of
Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Pillsbury Insights – Navigating the Real Estate Market During COVID-19
July 06, 2020 —
Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate BlogUntil COVID-19 officially took hold in the U.S. in March of 2020, the U.S. real estate market was active, even robust. Starting in March, however, the possible scope of the pandemic and the sudden imposition of stay-at-home orders resulted in deal volume falling precipitously—with sales, leasing and lending transactions being put on temporary “wait and see” pause or terminated altogether.
The impact of COVID-19 on the real estate market has not been felt evenly. Hotels have been hit extremely hard, with many hotels shuttered altogether and many others only open at staggeringly low occupancy rates. Retail likewise has been virtually shut down in various parts of the country—with retailers across the country asking for rental forbearance or lease surrenders and others, such as J Crew, Neiman Marcus and Pier 1, pursuing bankruptcy reorganizations or liquidation. Multifamily has also been relatively hard hit, and landlords are having to navigate a web of local, state, and even federal regulations regarding tenant protections, such as non-eviction orders. The least affected sector so far has been office—however employers and office space users who are becoming facile with zoom and “working at home” may well re-examine their usage of office space—and it is within the realm of possibility to imagine that even this sector may come under pressure over time.
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Caroline A. Harcourt, PillsburyMs. Harcourt may be contacted at
caroline.harcourt@pillsburylaw.com
