OSHA Announces Expansion of “Severe Violator Enforcement Program”
November 15, 2022 —
Kip J. Adams & Steven G. Gatley - Lewis Brisbois(October 28, 2022) - Employers beware! The Occupational Safety and Health Administration (OSHA) is significantly expanding its “Severe Violator Enforcement Program” (SVEP). Employers that are placed into the program by OSHA will be significantly scrutinized, with the potential for very damaging information about their failure to maintain a safe workplace being made public for customers, partners, and vendors to see.
As the name suggests, the program is meant to identify, classify, and then stringently monitor employees deemed to be “severe violators” of the OSH Act. According to the OSHA website alert, to be deemed a “severe violator”, the agency must find that the employer has demonstrated “indifference” to the regulations by committing “willful, repeated, or failure-to-abate” violations.
Reprinted courtesy of
Kip J. Adams, Lewis Brisbois and
Steven G. Gatley, Lewis Brisbois
Mr. Adams may be contacted at Kip.Adams@lewisbrisbois.com
Mr. Gatley may be contacted at Steven.Gatley@lewisbrisbois.com
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There's No Such Thing as a Free House
April 01, 2015 —
Megan McArdle – BloombergShould people be able to get a free house by refusing to pay their mortgage?
That's the question Florida has to answer. The housing crisis is over, and the housing market is healing itself, though slowly in some places. But a backlog of foreclosures still remains ... and it has been going on so long that some homes are now past the statute of limitations for collecting debt. Lawyers for the homeowners are arguing that this means they get to keep the house. Lawyers for the banks are, unsurprisingly, arguing that each month they fail to pay the mortgage payment starts the statutory clock anew.
Both arguments create problems if the courts endorse them. If failing to pay really restarted the clock every month, then there wouldn't be a statute of limitations on debt -- creditors could just keep sending you bills forever and dun you right up to the edge of your grave. There's a very good reason that we have statutes of limitations on most crimes and most debts: The law recognizes that our interests in justice and contract rights must be balanced against other considerations. People need to be able to plan their lives without decades-old problems coming back to bite them, and also, as cases age, they get harder and harder to prove as witnesses die, evidence gets lost and memories fade.
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Megan McArdle, BloombergMs. McArdle may be contacted at
mmcardle3@bloomberg.net
Useful Life: A Valuable Theory for Reducing Damages
March 29, 2017 —
Brooke E. Beebe, Esq. - Florida Construction Law NewsThe situation is one all too familiar to construction defect litigants. A homeowner contracts with a roofing contractor to install a new roof with a life expectancy of ten years.[1] After only five years, the homeowner brings a claim for construction defects in the roof alleging that the roof requires complete replacement due to water intrusion. The homeowner seeks damages for the full replacement cost of the roof. However, under a “useful life” theory, the homeowner would not be entitled to damages for the full amount of the replacement cost. Instead, the homeowner would be entitled to one-half of the cost of the replacement roof, taking into account the fact that he or she had been deprived of only five, rather than ten, years of use. “Useful life” is best understood as the expected length of time that a newly built construction element can be reasonably anticipated to last, subject to routine maintenance and ordinary wear and tear. The “useful life” theory holds that granting the homeowner damages for the full replacement cost of the roof would result in unjust enrichment to the homeowner, who had contracted for a roof with a ten-year, rather than a fifteen-year, useful life.
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Brooke E. Beebe, Cole, Scott & Kissane, P.A.Ms. Beebe may be contacted at
brooke.beebe@csklegal.com
Illinois Appellate Court Finds That Damages in Excess of Policy Limits Do Not Trigger Right to Independent Counsel
June 22, 2020 —
Jason Taylor - Traub LiebermanUnder Illinois law, an insurer’s duty to defend includes the right to control the defense, which allows insurers to protect their financial interest in the outcome of the litigation. However, where a conflict of interest exists, the insured, rather than the insurer, is entitled to assume control of the defense of the underlying action. If this occurs, the insurer satisfies its obligation to defend by reimbursing the insured for the cost of defense provided by independent counsel selected by the insured. What circumstances and situations arise to the level of an actual conflict of interest between the insurer and insured are often grounds for dispute.
In Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Co. of America, 2020 IL App (1st) 182491 (Apr. 7, 2020), the Illinois Appellate Court addressed whether damages awarded by a jury in excess of the policy limits were sufficient to trigger a right to independent counsel for post-trial and appellate proceedings. According to the Illinois Appellate Court, at least under the facts of the Ryerson case, the answer is “no.”
In Ryerson, Nancy Hoffman sued Ryerson for injuries sustained in a tractor-trailer accident. Ryerson tendered the suit to its primary insurer, Travelers, and its umbrella insurer, Illinois National. The policy limits were $2 million and $25 million, respectively. A jury found in favor of Hoffman for over $27.6 million in damages, and Ryerson appealed.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
New Jersey Supreme Court Issue Important Decision for Homeowners and Contractors
September 08, 2016 —
Wally Zimolong – Supplemental ConditionsThe lack of insurance coverage for a contractor’s faulty workmanship is the bane of both homeowners looking to recover damage for defective work and contractors seeking to defend against such claims. In many states, like Pennsylvania, courts hold that faulty workmanship is not an “occurrence” that is covered by a standard commercial general liability insurance policy. In other words, courts hold that CGL policies cover damage to other property not part of the construction project itself.
This is problematic for both the homeowner and the insured. For the homeowner, the lack of a policy providing indemnification sometimes means the homeowner is left trying to collect against a defendant, who is otherwise but has little to no assets against which to collect a judgment. For the contractor, the lack of a policy providing coverage means that assets are at risk and it could be forced to spend significant sums in attorneys fees defending the case.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Policyholders' Coverage Checklist in Times of Coronavirus
March 16, 2020 —
Richard W. Brown & Andres Avila - Saxe Doernberger & Vita, P.C.Every state but West Virginia have reported hundreds of Coronavirus (COVID-19) cases in the U.S. More than half are in California, Washington, New York, and Massachusetts. The unprecedented social and economic impact of the Coronavirus makes it necessary for policyholders to keep open all lines of communications with their insurance brokers, insurance carriers, financial advisors, safety & compliance experts, and insurance coverage counsel even if it is not certain whether they will need to file insurance claims.
As always, the specific terms of the insurance policies and the way losses are documented and presented to insurance carriers will be pivotal in securing coverage for Coronavirus-related exposures, such as jobsite closures, stop-work orders, remote work mandated measures, business interruption, event cancelation, employees’ claims, among others.
Policyholders should consider the following checklist of key insurance coverage tasks to be better positioned to face the risks posed by the Coronavirus:
- Pre-Loss Risk Management: A careful review of the policyholder’s insurance program may show coverage for the Coronavirus outbreak. Now is the time to assess, with the guidance of your brokers and insurance coverage counsel, the specific coverages in place. Policyholders may want to particularly review the terms and conditions of their Property, General Liability, Pollution, Directors & Officers, Professional Liability, Fiduciary Liability, as well as Event Cancelation Insurance coverages, among others depending on their specific business trade. For instance, Policyholders would want to assess, ahead of time, whether there are bacterial/virus/communicable diseases/pandemics exclusions in their policies. It is also relevant to review, with a keen eye, the insuring agreements and pose hypotheticals to stress test them and see how far coverage would go with respect to a Coronavirus exposure;
Reprinted courtesy of
Richard W. Brown, Saxe Doernberger & Vita, P.C. and
Andres Avila, Saxe Doernberger & Vita, P.C.
Mr. Brown may be contacted at rwb@sdvlaw.com
Mr. Avila may be contacted at ara@sdvlaw.com
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Wildfire Insurance Coverage Series, Part 2: Coverage for Smoke-Related Damages
July 03, 2022 —
Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery BlogFor many policyholders, smoke emanating from wildfire causes as much if not more damage than the fire itself. In this post in the Blog’s Wildfire Insurance Coverage Series, we discuss damages caused by smoke emanating from wildfires.
Some insurers argue that policies are limited to fire damage to the insured property and do not include smoke damage associated with nearby fires. A treatise frequently cited by insurers states otherwise: “The concept that fire insurance covers non-fire damage which is the proximate result of fire finds application also when the fire occurs on other property and causes harm to the insured property. In such case, the harm to the insured property, even though it is a non-fire harm, has long been recognized to be the result of fire, and, therefore, within the policy coverage.”
[1]
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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In Colorado, Repair Vendors Can Bring First-Party Bad Faith Actions For Amounts Owed From an Insurer
December 20, 2012 —
BRADY IANDIORIO, HIGGINS, HOPKINS, MCLAIN & ROSWELLWith the aftermath of Sandy still being felt up and down the Eastern seaboard, the question of many victims turns to how they can rebuild their lives and homes. One of the first things many people do is call on their insurance carriers to help rebuild whatever damaged property they have. In a recent case here in Colorado, those rebuilding efforts got reaffirmed by a Court of Appeals case, Kyle W. Larson Enterprises, Inc., Roofing Experts, d/b/a The Roofing Experts v. Allstate Insurance Company, --- P.3d ----, 2012 WL 4459112 (Colo. App. September 27, 2012).
The facts of the case are pretty straightforward and could describe many repair vendors in numerous situations. Roofing Experts contracted with four homeowners insured by Allstate to repair their damaged roofs. The contracts provided that repair costs would be paid from insurance proceeds. The contracts also allowed Roofing Experts full authority to communicate with Allstate regarding all aspects of the insurance claims. Before work began, Roofing Experts met with adjusters from Allstate to discuss the four homes and the amount of each claim. After receiving approval for the claims, Roofing Experts began the repairs. During construction, Roofing Experts discovered additional repairs were necessary to maintain certain manufacturer’s warranties and to conform to applicable building codes.
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Brady Iandorio, Higgins, Hopkins, McLain & Roswell, LLCMr. Iandorio can be contacted at
iandiorio@hhmrlaw.com
