What Makes a Great Lawyer?
February 06, 2019 —
Danielle Carter - Bremer Whyte Brown & O'Meara LLPGood lawyers have mastered and understand the analytical and communication skills taught in law school, but great lawyers build upon this foundation by continuing to develop traits and skills for success. Here are five tips to help good lawyers enhance client outcomes and excel within their profession.
Be Objective
Lawyers cannot be effective advocates unless they are first willing to perceive and analyze problems from all angles. Lawyers must discern strong claims from weak; urgent concerns from long-term; and large issues from small. A lawyer who adopts the tone of an emotionally-charged client risks alienating the court and jury.
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Danielle Carter, Bremer Whyte Brown & O'Meara LLPMs. Carter may be contacted at
info@bremerwhyte.com
Halliburton to Pay $1.1 Billion to Settle Spill Lawsuits
September 03, 2014 —
David Wethe, Margaret Cronin Fisk and Laurel Calkins – BloombergHalliburton Co. agreed to pay $1.1 billion to settle a majority of lawsuits brought over its role in the largest offshore oil spill in U.S. history.
The agreement is subject to court approval and includes legal fees, the Houston-based company said in a statement today. Halliburton was accused by spill victims and BP Plc of doing defective cementing work on the Macondo well before the April 2010 Gulf of Mexico oil spill. Halliburton blamed the incident on decisions by BP, which owned the well.
The settlement comes as the judge overseeing oil-spill cases weighs fault for the disaster. An agreement now averts the company’s risk of a more costly judgment for some spill victims and removes much of the uncertainty that has plagued Halliburton for the past four years as investors waited to see the payout tally. With its biggest piece of liability resolved, Halliburton can refocus its attention on developing new oilfield technology that will help it boost profits worldwide.
Reprinted courtesy of Bloomberg journalists
David Wethe,
Margaret Cronin Fisk and
Laurel Calkins
Mr. Wethe may be contacted at dwethe@bloomberg.net; Ms. Fisk may be contacted at mcfisk@bloomberg.net; and Ms. Calkins may be contacted at lcalkins@bloomberg.net
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Tennessee High Court Excludes Labor Costs from Insurer’s Actual Cash Value Depreciation Calculations
May 27, 2019 —
Michael S. Levine & Geoffrey B. Fehling - Hunton Andrews KurthThe Tennessee Supreme Court has refused to construe an ambiguous definition of actual cash value to allow for deduction of labor costs as part of depreciation calculations where that subset of repair costs are not clearly addressed in the policy. Despite the split of authority nationwide, the Tennessee case presents a straightforward application of policy interpretation principles to a common valuation issue in first-party property claims.
In Lammert v. Auto-Owners (Mutual) Insurance Co., No. M2017-2546-SC-R23-CV (Tenn. Apr. 15, 2019), insureds brought a class-action lawsuit against their property insurer, Auto-Owners, alleging breach of contract. The plaintiffs each owned buildings damaged by a hail storm and had each submitted claims to Auto-Owners. Auto-Owners accepted the claims and determined that the losses would be determined on an actual cash value basis. In performing those valuations, Auto-Owners depreciated both the building materials and the labor costs associated with repairing the properties. The insureds challenged the labor cost depreciation. Auto-Owners moved to dismiss the lawsuit. In response, the insureds requested that the district court certify to the Tennessee Supreme Court whether, “[u]nder Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation?”’
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Geoffrey B. Fehling, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
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Badly Constructed Masonry Walls Not an Occurrence in Arkansas Law
May 10, 2012 —
CDJ STAFFThe US District Court for Maryland has granted a summary judgment in the case Konover Construction Corp. v. ATC Associates to Massachusetts Bay Insurance Company and denied a request for dismissal from ACT. Konover (KBE) was contracted by Wal-Mart to build a Wal-Mart store and a Sam’s Club in Port Covington, Maryland. Superus, Inc. was hired by KBE to build the masonry walls. Superus purchased a policy from Massachusetts Bay Insurance which named KBE as an additional insured. Wal-Mart hired ATC Associates to independently test and inspect the concrete structural steel, and masonry.
After the building was in use, a large crack appeared which was attributed a latent construction defect. Other cracks were discovered. Upon investigation, it was discovered that there were “voids or foam in the concrete block surrounding the reinforcing steel that should have been filled with grout,” and in some cases, “reinforcing steel was missing or not installed in accordance with the specifications.” KBE paid for the repair and remediation and Wal-Mart assigned all rights and interests against ATC to KBE.
KBE filed suit against ATC. ATC called for dismissal on the grounds that Wal-Mart had no claims as the problems had been remediated. Wal-Mart then provided KBE with additional agreements to give them enforceable rights against ATC and Superus. KBE filed a fourteen claims against ATC, Superus, and Massachusetts Bay. In the current case, Massachusetts Bay sought summary judgment and ATC sought dismissal of all claims against it.
Massachusetts Bay claims that they need not indemnify Superus, as “there is no evidence adequate to establish that Superus’ defective work caused any collateral and/or resulting damage that was not subject to an Impaired Property exclusion, and that, in any event, no damage occurred during the policy period.”
As Wal-Mart is headquarted in Arkansas, certain contracts were under Arkansas law. Under the Arkansas courts, “defective workmanship, standing alone and resulting in damages only to the work product itself, is not an ‘occurrence.’” The court determined that collateral or resultant damage would be covered. The court found that “it is clear under Arkansas law, and the parties appear to agree, that Massachusetts Bay is not obligated to indemnify KBE for any repairs to the masonry walls themselves, including any cracks or gaps in the walls.” The court also found that “there is no evidence adequate to prove that any allegedly resultant property damage was caused by Superus’ faulty construction of the walls.” The court also noted that “if the building code violation and structural integrity problem were ‘property damage,’ insurance coverage would be barred by the Impaired Property Exclusion.” Based on these findings, the court concluded that Massachusetts Bay is entitled to summary judgment.
While the court dismissed the case against Massachusetts Bay, the court declined ATC’s motion to dismiss. The court noted that ACT’s alleged negligence in conducting inspections “created only a risk of economic loss for KBE.” Although hired by Wal-Mart, ATC “transmitted its daily testing and inspection reports of the Wal-Mart and Sam’s Club projects directly to KBE.” The court found that “KBE has made a plausible claim.”
ATC also claimed that KBE contributed to the negligence due to the negligence of its subcontractor. The court concluded that it was plausible that “ATC will not be able to carry its burden of proving KBE was contributorily negligent.” The court was less sanguine about KBE’s fraud claim, but though it “may not now appear likely to have merit, it is above the ‘plausibility’ line.”
In conclusion, KBE may not continue its case against Massachusetts Bay. However, the judge allowed the other proceedings to continue.
Read the court’s decision…
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Handling Construction Defect Claims – New Edition Released
February 11, 2013 —
CDJ STAFFA lot has changed in the twenty-seven years since the Miller Law firm first released Handling Construction Defect Claims: Western States, and those changes are reflected in the recent publication of the fourth edition. Frank H. Wu, the Chancellor and Dean of UC Hastings College of Law describes the work as “more than a scholar’s treatise, it is the first resource for construction defect plaintiff and defense attorneys; as well as mediators, arbitrators and judges — or ought to be!” In the time since the first edition, the number of homeowner associations has grown nearly ten-fold. Further, as Rachel M. Miller, a Senior Partner at the firm and one of the authors, notes, “thousands of construction defect claims are filed every year, and in most cases, the developers insurance pick up these claims.”
The book is available at Amazon at a price of $299.
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Beyond the Disneyland Resort: World Class Shopping Experiences
May 03, 2018 —
Beverley BevenFlorez-CDJ STAFFIf you don’t want to venture far from the Disneyland Resort, consider heading to
the Outlets at Orange. Formerly known as the Block of Orange, this open air shopping center features outlet stores such as Neiman Marcus Last Call, Nordstrom Rack, and Sax Fifth Avenue’s Off Fifth, as well as an AMC movie theater, restaurants, Lucky Strike Bowling Alley, and Dave and Buster’s.
For another local option, head to
the Brea Mall, where you can find department stores such as Macy’s and Nordstrom’s and a host of other stores like Apple, Guess, and Tommy Bahama.
For a more exclusive shopping experience, travel to south Orange County's
Fashion Island of Newport Beach. Their department stores include Bloomingdale’s, Macy’s, Neiman Marcus’s, and Nordstroms, and the shopping center also contains many boutique shops and eateries.
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Not so Fast – Florida’s Legislature Overrules Gindel’s Pre-Suit Notice/Tolling Decision Related to the Construction Defect Statute of Repose
May 11, 2020 —
Rahul Gogineni - The Subrogation StrategistAs discussed in a prior blog post, in Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal held that when the plaintiffs provided a pre-suit notice in compliance with §558.004 of Florida’s construction defect Right-to-Cure statute, Fla. Stat. §§ 558.001 to 558.005, et. seq., they commenced a “civil action or proceeding,” i.e. an “action,” within the meaning of Florida’s construction defect Statute of Repose, Florida Statue § 95.11(3)(c). Thus, the court held that the plaintiffs commenced their action prior to the time Florida’s 10-year statute of repose period ended. In overturning the lower court’s dismissal of the action, the court found that because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, filing pre-suit notice of claim sufficiently constituted an “action” for purposes of Florida’s Statute of Repose.
For various reasons, the parties appealed the decision to the Supreme Court of Florida. In July of 2019, before the Florida Supreme Court could decide whether to hear the case, the Florida legislature passed legislation that effectively overruled the decision. To overrule the decision, the Florida Legislature modified § 558.004 of Florida’s Right-to-Cure statute to expressly state that a notice of claim served pursuant to the Right-to-Cure statute does not toll the 10-year statute of repose period for construction claims. See Fla. Stat.
§ 558.004(d).
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
A Quick Checklist for Subcontractors
January 26, 2017 —
Christopher G. Hill – Construction Law MusingsAfter the last two weeks’ analyses of a couple of big construction decisions that came out recently, I thought I’d keep this week’s post practical and short for those that are not construction lawyers. So without further ado, here is a short checklist of the top things (aside from calling their local experienced construction attorney) a construction subcontractor should do or look for when reviewing a construction contract from a general contractor (and for a couple of these that a general contractor can look for in its prime contract).
- ALWAYS get a copy of the Prime Contract between the Owner and the General Contractor. This contract will contain terms that will “flow down” to you through the incorporation clause that almost every subcontract contains. You can’t do much to change these terms, but you will need to know them as the job progresses.
- READ every provision of the subcontract. I know this sounds simple, but not all subcontracts hide the red flags in the same places. Remember the details of a subcontract can sink you later if you aren’t prepared.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
