Bad Faith Claim for Investigation Fails
January 07, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer prevailed in summary judgment, disposing of the insured's bad faith claim based upon the investigation of the loss. Nino v. State Farm Lloyds, 2014 U.S. Dist. LEXIS 163993 (S.D. Tex. Nov. 24, 2014).
The insured filed a claim with State Farm for damage resulting from a hailstorm on March 29, 2012. An independent adjuster, Charles Crump, conducted an investigation on behalf of State Farm. Crump inspected the roof, where he noted prior repair to the roof, and found no covered damage to the roof as the result of the 2012 hailstorm. Crump found minimal damage to other parts of the house, totaling $2,311.75, which resulted in no payment after the deduction. Crump provided the insured with a printed copy of his damage estimate.
The insured then hired a public adjuster who found damage totaling $31,991.72, including $10,051.22 in roof repairs.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Lithium for Batteries from Geothermal Brine
July 08, 2024 —
Robert A. James, Sidney L. Fowler & Clarence H. Tolliver - Gravel2Gavel Construction & Real Estate Law BlogIf all goes as planned, solar, wind and other clean energy technologies will help us abandon carbon emissions for good. But many green power sources perform their best only when nature cooperates, so an important (and sometimes overlooked) component of the energy transition is the ability to store electricity for a rainy or calm day. Lithium is the ingredient of choice for electric vehicle batteries, solar panels and grid elements. As these innovations ramp up, lithium demand is expected to soar by 90% over the next two decades, driving a surge in production efforts. Some experts predict a deficit in the mineral by as soon as 2025.
Predominant mining and extraction processes can be detrimental to the surrounding air, soil and water, in contrast to the environmentally friendly intentions of the lithium applications. But another type of renewable energy may be able to provide a solution. Hydrothermal brine, a high-saline water mixture found deep within the Earth’s crust, contains lithium-rich deposits that have leached from heated rocks into underground water. Geothermal power players employing hydrothermal brine are spearheading plans to extract the valuable resource in a cleaner and more sustainable manner.
Reprinted courtesy of
Robert A. James, Pillsbury,
Sidney L. Fowler, Pillsbury and
Clarence H. Tolliver, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com
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Checking the Status of your Contractor License During Contract Work is a Necessity: The Expanded “Substantial Compliance” under B&P 7031 is Here
June 05, 2017 —
Ivo G. Daniele – Newmeyer & Dillion LLP News AlertIt is paramount that a contractor diligently maintains its license prior to and during the performance of any contract work. Failure to do so could result in barring a contractor from receiving payment and/or disgorgement of profits received under the construction contract.
California Business and Professions Code section 7031 is part of the Contractors State License Law (Business & Prof. section 700 et seq.), and is both feared and loathed by all contractors performing work in the state of California. This draconian statute is known as the “Shield” and was enacted over 70 years ago for the singular purpose to bar all actions by contractors seeking compensation for unlicensed contract work – even precluding a contractor from enforcing his or her mechanic’s lien rights. However, a contractor could potentially avoid the harshness of B&P 7031 by establishing that he or she had substantially complied with the appropriate licensing requirements.
SUBSTANTIAL COMPLIANCE WITH LICENSE REQUIREMENTS PRIOR TO 2017 AMENDMENT
The substantial compliance exception is found in section B&P 7031(e), which authorizes the court to determine that there has been substantial compliance with licensure requirements, if the contractor has shown at an evidentiary hearing that he or she engaged in the unlicensed work had:
- Been duly licensed as a contractor in this state prior to the performance of the act or contract;
- Acted reasonably and in good faith to maintain the license;
- Did not know or reasonably should not have known that he or she was not licensed when he or she performed the work; and
- Acted promptly and in good faith to reinstate the license once it learned the license had lapsed.
Although not impossible, satisfying all four requirements of the exception was challenging for the contractor, specifically, requirement # (3) – the lack of knowledge that he or she was unlicensed during performance of work.
SUBSTANTIAL COMPLIANCE POST 2017
Fortunately, Governor Brown heard the collective cry for relief and signed Assembly Bill 1793 (“AB 1793”) into law. The new bill revises the criteria for the court to determine if a contractor is in substantial compliance with the licensing requirements by deleting requirement # (3) in its entirety and modestly amending requirement # (4) to require the contractor to act promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.
As a result, the substantial compliance exception under B&P 7031(e) reads as follows:
(e) The judicial doctrine of substantial compliance shall not apply under this section where the person who engaged in the business or acted in the capacity of a contractor has never been a duly licensed contractor in this state. However, notwithstanding subdivision (b) of Section 143, the court may determine that there has been substantial compliance with licensure requirements under this section if it is shown at an evidentiary hearing that the person who engaged in the business or acted in the capacity of a contractor
(1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.
This new legislation has tempered the burden of proof born by the contractor in establishing substantial compliance, although be it minor in its modification, the fact of the matter remains the same – be diligent in maintaining your license during all phases of contract work.
Ivo Daniele is a seasoned associate in the Walnut Creek office focusing his practice on commercial transactions and business and construction litigation. For questions regarding California Business and Professions Code section 7031, please feel free to contact Ivo Daniele at (925) 988-3222 or ivo.daniele@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Just Because You Caused it, Doesn’t Mean You Own It: The Hooker Exception to the Privette Doctrine
March 06, 2023 —
Garret Murai - California Construction Law BlogWe’ve written before about the Privette doctrine, which establishes a presumption that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. In other words, if a general contractor hires a subcontractor, the subcontractor is solely responsible for the safety of its workers.
There are two major exceptions to the Privette doctrine. The first, the Hooker exception, holds that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury. The second, the Kinsman exception, holds that a hirer may be liable for injuries sustained by a worker of an independent contractor if the hirer knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered and the hirer failed to warn the contractor of the hazard.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
CDJ’s #10 Topic of the Year: Transport Insurance Company v. Superior Court (2014) 222 Cal.App.4th 1216.
December 31, 2014 —
Beverley BevenFlorez-CDJ STAFFRichard H. Glucksman, Jon Turigliatto, and Kacey R. Riccomini of Chapman Glucksman Dean Roeb & Barger analyzed Transport and wrote, “The decision is an important tool for builders’ counsel because the builder’s reasonable expectations can alter the interpretation of ambiguous terms in policies issued to subcontractors. Essentially, the builder’s intent is relevant to the interpretation of policy terms because the subcontractor’s intent in requesting additional coverage depends on the agreement it made with the builder.”
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Top 10 Take-Aways from the 2024 Annual Forum Meeting in New Orleans
May 20, 2024 —
Marissa L. Downs & Brendan Witry - Laurie & Brennan, LLPOver 600 construction lawyers, experts, and consultants met in New Orleans last week for the Forum’s 2024 Annual Meeting where Program Coordinators Brenda Radmacher and Joseph Imperiale together with John Cook and Buck Beltzer put together an insightful program focused on all things construction litigation. Here are our 10 top take-aways from this unique program.
10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators.
Reprinted courtesy of
Marissa L. Downs, Laurie & Brennan, LLP and
Brendan Witry, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com
Mr. Witry may be contacted at bwitry@lauriebrennan.com
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PSA: Pay If Paid Ban Goes into Effect on January 1, 2023
December 05, 2022 —
Christopher G. Hill - Construction Law MusingsI have
written a couple of times here at Musings regarding the new pay-if-paid legislation passed by the General Assembly last session. While the statute has some inconsistencies and a working group has made
some recommendations, the legislation as passed will go into effect on January 1, 2023, without any changes (at least until next session). As always, such action by our legislature here in Virginia will create work for construction attorneys assisting their clients to amend contracts to meet the new rules.
Essentially (and with minor inconsistencies between public and private contracts), the bill requires that any construction contract entered into after January 1, 2023 have the following provisions:
- On public projects: A payment clause that obligates a contractor on a construction contract to be liable for the entire amount owed to any subcontractor with which it contracts. Such contractor shall not be liable for amounts otherwise reducible due to the subcontractor’s noncompliance with the terms of the contract. However, in the event that the contractor withholds all or a part of the amount promised to the subcontractor under the contract, the contractor shall notify the subcontractor, in writing, of his intention to withhold all or a part of the subcontractor’s payment with the reason for nonpayment.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
What ENR.com Construction News Gained the Most Views
January 09, 2023 —
C.J. Schexnayder - Engineering News-RecordAs the construction industry continued its ongoing recovery from the global pandemic in 2022, it also faced a number of formidable challenges—including staffing gaps, materials shortages, supply chain delays and the ongoing specter of inflation. Throughout the year, ENR editors reported on how these issues—and many more—were impacting the sector and how it responded.
Reprinted courtesy of
C.J. Schexnayder, Engineering News-Record
Mr. Schexnayder may be contacted at schexnayderc@enr.com
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