Eastern District of Pennsylvania Denies Bad Faith Claim in HO Policy Dispute
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Patrick Nugent of Saul Ewing LLP’s article in JD Supra Business Advisor, the Eastern District of Pennsylvania entered a summary judgment for the insurer on a statutory bad faith claim in a coverage dispute under a homeowner’s policy.
The coverage dispute was over “the collapse of a wall in the plaintiffs’ home.” The Plaintiffs alleged that “the collapse resulted from excessive rainfall during a storm in March 2011.” However, Metropolitan Direct Property and Casualty Insurance Company’s engineer concluded that the collapse “resulted from long-term and on-going water infiltration attributable to poor maintenance.” Water damage had occurred a year prior to the collapse, but had not been repaired.
In response, “Plaintiffs filed a complaint in Pennsylvania state court alleging breach of contract and statutory bad faith.” The court “determined that Metropolitan’s denial of benefits ‘was not only reasonable, but correct under the Policy language,’” and “ruled that the plaintiffs could not demonstrate that Metropolitan lacked a reasonable basis for denying their claim and entered summary judgment for Metropolitan on the plaintiffs’ bad faith claim.”
Read the court decisionRead the full story...Reprinted courtesy of
Court Upholds Plan to Eliminate Vehicles from Balboa Park Complex
June 10, 2015 —
Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLPIn Save Our Heritage Organisation v. City of San Diego, et al. (No. D063992, filed 5/28/15), the California Court of Appeal for the Fourth Appellate District upheld a controversial plan to eliminate vehicles from various plazas in historic Balboa Park. In reaching its decision, the Court of Appeal considered a question of first impression involving the interpretation of San Diego Municipal Code section 126.0504.
Balboa Park, designated a National Historic Landmark in 1940, is a large urban park in the center of San Diego. The City of San Diego (“City”) recently approved a proposed plan (“Project”) to eliminate vehicles from the plazas within the Balboa Park complex and to return the plazas to purely pedestrian zones. Subsequently, a community group named Save Our Heritage Organisation (“SOHO”) filed a petition for a writ of mandate alleging, among other things, the City erroneously approved the Project. SOHO contended Municipal Code section 126.0504 mandated two key findings be made before the Project could be approved: (1) that the intended purpose of the property would not be adversely affected; and (2) without the proposed project, the property would not be put to a “reasonable beneficial use.” SOHO argued that although the City made the requisite findings, those findings lacked substantial evidentiary support. The trial court agreed with SOHO and directed the City to rescind the site development permit.
The City argued on appeal that Municipal Code section 126.0504 vested it with “discretion to make a qualitative determination of whether an existing use of the property, even if deemed beneficial, is also a reasonable use of that property under all of the facts and circumstances applicable to the particular property in question.” The Court of Appeal agreed and reversed.
Reprinted courtesy of
Kristen Lee Price, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Ms. Price may be contacted at kprice@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation
June 05, 2017 —
Jon A. Turigliatto & Chelsea L. Zwart - CGDRB News & PublicationsThe Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract.
In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development. The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building. At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development. The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages.
MWI filed a motion for a directed verdict prior to the jury’s verdict and motion for judgment notwithstanding the verdict following the entry of judgment, both on the grounds that the HOA had failed to present any evidence that MWI had caused a SB800 violation as a result of its negligence or breach of contract, and had therefore failed to prove negligence and causation as required by SB800. MWI relied on the Fourth District’s prior decision in Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, and its interpretation therein of Civil Code §936, which states, in relevant part, that the statute applies “to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract….” (emphasis added.) However, the trial court denied both motions, relying on the last sentence of Civil Code §936, which states in part, “[T]he negligence standard in this section does not apply to any…material supplier…with respect to claims for which strict liability would apply.”
Reprinted courtesy of
Jon A. Turigliatto, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Chimney Collapses at South African Utility’s Unfinished $13 Billion Power Plant
November 21, 2022 —
Paul Burkhardt - BloombergSouth Africa’s newest coal-fired power plant, which has been under construction since 2008 and will cost an estimated 232 billion rand ($12.7 billion), shut one of its six generating units after a duct collapsed.
The unit at the Kusile plant could remain offline “for a few months” although a clearer estimate will be known over coming weeks, state-owned utility Eskom Holdings SOC Ltd. said in a statement late Wednesday. The outage comes as the country endures record blackouts -- locally known as loadshedding.
The duct appeared to have sheared off from the unit’s main structure, a photo posted on Twitter by Anton Eberhard, a professor at the University of Cape Town’s Graduate School of Business, showed.
Read the court decisionRead the full story...Reprinted courtesy of
Paul Burkhardt, Bloomberg
Amazon Can be Liable in Louisiana
August 05, 2024 —
Michael J. Ciamaichelo - The Subrogation StrategistIn June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.
Amazon Can be a “Seller” Under the Louisiana Products Liability Act
Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.
Read the court decisionRead the full story...Reprinted courtesy of
Michael J. Ciamaichelo, White and WilliamsMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
Defective Panels Threatening Profit at China Solar Farms: Energy
January 21, 2015 —
Bloomberg NewsFlaws found in some Chinese solar panels can drastically eat into their efficiency, reducing how much power the panels will produce as the country races to meet aggressive goals to hold the line on fossil fuel emissions.
The defects, found in products set to be used only in China, are in a coating that suppresses reflections on glass, allowing the panels to capture more light. About 23 percent of samples taken from dozens of Chinese companies failed to meet requirements, according to regulators in China. For samples from Jiangsu, the eastern province where much of the glass is made, the rate was as high as 40 percent.
Read the court decisionRead the full story...Reprinted courtesy of
Bloomberg News
Why a Challenge to Philadelphia’s Project Labor Agreement Would Be Successful
February 22, 2018 —
Wally Zimolong – Supplemental ConditionsThere is a common misconception that all Philadelphia Public Works projects must be performed pursuant to a project labor agreement with various members of the Building and Construction Trades Council. This common misconception is even shared by the current Mayoral administration, who I saw in a recent court filing testified under oath that “project labor agreements are required for all construction projects in Philadelphia with a value of at least five million dollars.” (As is discussed below this is flat out false.)
No one has yet to step forward to challenge Philadelphia’s project labor agreement scheme. However, if someone did, I think the challenge would be successful for three reasons. First, contrary to the Mayor’s representative’s statement, there is no requirement that all projects in excess of $5 million be subject to a project labor agreement. Second, Philadelphia’s project labor agreement excludes signatories to collective bargaining agreements with the United Steel Workers (USW) from participating, which violates public bid laws. Third, the exclusion of the USW, also gives rise to a challenge that federal labor law preempts the project labor agreement.
A. Background on the Philadelphia PLA.
Under a project labor agreement (PLA), a contractor wishing to perform work on a project agrees to be bound by the terms and conditions of employment established by the public owner and certain construction unions. Each PLA varies, but typically PLA’s will require a contractor’s employees to become members of a union – if they are already not members – in order to work on a project or will require a contractor to hire labor from a union hiring hall. PLA’s are controversial because they exclude non-union contractors from performing work on a project subject to a PLA, unless of course that contractor agrees to become “union” for purposes of that project. For reasons beyond this blog post, a merit shop contractor would be crazy to do that.
The “Philadelphia PLA” that Mayor Kenney believes is required for all public projects over $5 million was instituted by Mayor Nutter through a
2011 Executive Order(Executive Order No. 15-11, Public Works Project Labor Agreements).
Read the court decisionRead the full story...Reprinted courtesy of
Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
FBI Makes Arrest Related to Saipan Casino Construction
April 05, 2017 —
Matthew Campbell & Greg Farrell - BloombergThe Federal Bureau of Investigation arrested one person in connection with the death of a construction worker at Imperial Pacific International Holdings Ltd.’s casino on the remote U.S. island of Saipan, according to an agency spokeswoman.
“The FBI conducted a search and made an arrest in response to the recent death of an individual working at the construction site of the Imperial Pacific Resort,” Michele Ernst, a spokeswoman in the FBI’s Honolulu field office, said in an email Friday. “The investigation is related to allegations of a federal violation of the workplace visa system, including reports the company was systematically harboring individuals who are out of status and in violation of federal statutes."
Reprinted courtesy of
Matthew Campbell, Bloomberg and
Greg Farrell, Bloomberg Read the court decisionRead the full story...Reprinted courtesy of
