Claim Against Broker Survives Motion to Dismiss
January 25, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe insured's complaint against its broker for failure to secure adequate coverage survived a motion to dismiss. Broecker v. Conklin Prop., LLC, 2020 N.Y. App. Div. LEXIS 7399 (Dec. 2, 2020).
Conklin Property, LLC purchased real property and entered into a contract with JJC Contracting, Inc. for construction and renovation of the property. The broker, Total Management Corp. (TMC) was retained by Conklin to secure insurance for the construction phase of the renovation project. During the renovation, an employee of JJC was injured at the property and died. The employee's estate then sued Conklin. US Underwriters, the insurer, disclaimed coverage pursuant to an exclusion for bodily injury to contractors and subcontractors and their workers.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Fourth Circuit Issues New Ruling on Point Sources Under the CWA
October 02, 2018 —
Anthony B. Cavender - Gravel2GavelThe Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Bridges Need More Attention
July 31, 2023 —
Christoph Klauser - Construction ExecutiveSince it became possible to calculate the specific design-build needs of bridges with increasing accuracy in the 19th century, and new materials—beginning with cast iron and steel, followed by reinforced and prestressed concretes—also became available to build them, the number of bridges constructed all over the world has increased. It is evident today that many of these bridges have aged considerably, conditions which often lead to collapse despite regular inspections and repairs. The Fern Hollow Bridge in Pittsburgh, an approximately 440-foot-long, three-span steel bridge over a forest ravine, collapsed in January 2022. Fortunately, no fatalities occurred, although several vehicles, including a bus, were involved in the collapse.
How can accidents of this nature be avoided, and which technologies are available to protect bridges more effectively? Bridges all over the world can be efficiently monitored with weigh in motion (WIM) and structural health monitoring (SHM), extending their service life and, in a worst-case scenario, preventing their collapse.
Reprinted courtesy of
Christoph Klauser, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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The 2017 ASCDC and CDCMA Construction Defect Seminar and Holiday Reception
November 21, 2017 —
Beverley BevenFlorez-CDJ STAFFThe annual Construction Defect Seminar and Holiday Reception presented jointly by the Association of Southern California Defense Counsel (ASCDC) and the Construction Defect Claims Managers Association (CDCMA) takes place this November 30th at the Hilton Costa Mesa. This one-day seminar includes two sessions: Session 1, Recent developments in Insurance Coverage and Related Impacts on Case Resolution; Session 2, Impact of Design Claims in Construction Defect Actions. A holiday reception will immediately follow the seminar.
The keynote speaker this year is Hon. Charles Margines, Presiding Judge of the Orange Superior Court. Other speakers include David Napper, Esq., of Chapman Glucksman Dean Roeb & Barger, Adrienne Cohen, Esq., Law Offices of Adrienne D. Cohen, Blenda Eyvazzadeh, Chub North American Claims, and many others. This activity has been approved for Minimum Continuing Legal Education Credit by the State Bar of California in the amount of 3.0 hours.
November 30th, 2017
Hilton Costa Mesa
3050 Bristol Street
Costa Mesa, California 92626
United States
PDF Registration...
Online Registration...
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The Utility of Arbitration Agreements in the Construction Industry
December 30, 2019 —
Brian L. Gardner & Jason R. Finkelstein - Construction ExecutiveIn today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements.
To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA.
With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators).
Reprinted courtesy of
Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Gardner may be contacted at bgardner@coleschotz.com
Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com
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The Firm Hits the 9 Year Mark!
July 22, 2019 —
Christopher G. Hill - Construction Law MusingsIt was 9 years ago today that I announced the formation and start of my solo practice, The Law Office of Christopher G. Hill, PC. Back then, my children were in elementary and middle school. Now I have two college students, one at Appalachian State University (with a budding photography talent that has provided some photos for this blog (including that on this post)) and the other at West Virginia University, and a rising high school junior. In just the past year I began a tenure on the Section Council Virginia Bar Association Construction and Public Contracts Law section and chair of its Legislative Committee where I assisted in the drafting of the change in the mechanic’s lien form that takes effect today..
I was named to both the Virginia Business Magazine Legal Elite in Construction Law and for a 3rd consecutive year to Virginia Super Lawyers in Construction Litigation. I spoke on how to deal with a DPOR complaint this past November at the 39th Annual Construction Law and Public Contracts seminar (one I highly recommend for any lawyer interested in construction).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Lien Release Bonds – Remove Liens, But Not All Liability
February 20, 2023 —
Mia Hughes - ConsensusDocsLien Release Bonds – Remove Liens, But Not All Liability
Among owners and contractors, payment and performance bonds are commonly used together in an effort to mitigate future risk against derivative subcontractor claims. But what happens when despite the effort to mitigate risk, a derivative claimant nevertheless files a mechanics’ lien on the owner’s real property? Not all hope is lost. There is another classification of bond, a “lien release bond”—also commonly referred to as an indemnity bond or a mechanics’ lien bond—which provides protections for real property after a mechanics’ lien has already been filed. The purpose of a lien release bond is to remove claims against the relevant real property. Notably, a lien release bond does not necessarily eliminate all liability of an owner or a general contractor. In number of states, an owner or a general contractor can be held personally liable for derivative claims despite a valid lien release bond.
What is a Lien Release Bond?
A lien release bond is a specific type of surety bond that removes an existing mechanics’ lien from an owner’s real property. In an effort to protect real property, an owner, or a general contractor, can obtain a lien release bond that will substitute or take the place of a mechanics’ lien. In the event a lien claimant files suit on the mechanics’ lien and seeks to collect on their claim, any proceeds recovered will come from the lien release bond rather than proceeds from the sale or foreclosure of the real property. The threat of mechanics’ liens is always present on a construction project— it is estimated that over 60,000 mechanics liens were filed in 2021 alone. Lien release bonds are an added layer of protection for an owner’s real property against a pending mechanics’ lien.
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Mia Hughes, Jones Walker LLP (ConsensusDocs)Ms. Hughes may be contacted at
mhughes@joneswalker.com
Texas Supreme Court Holds Stipulated Extrinsic Evidence May Be Considered in Determining Duty to Defend
May 10, 2022 —
Tred R. Eyerly - Insurance Law HawaiiResponding to certified questions from the Fifth Circuit, the Texas Supreme Court held that in limited circumstances, extrinsic evidence may be considered in determining the duty to defend. Monroe Guar. Ins. Co. v. Bitco Gen. Ins. Corp., 2022 Tex. LEXIS 148 (Tex. Feb. 11, 2022).
The two insurers each provided CGL coverage to the insured, 5D Drilling & Pump Service, Inc., at different times. BIitco provided two consecutive one-year CGL policies covering October 2013 to October 2015. Monroe's CGL policy covered 5D from October 2015 to October 2016.
5D was sued by David Jones for breach of contract and negligence, seeking damage allegedly resulting from 5D's drilling operations on Jones's property. Jones contracted with 5D in the summer of 2014 to drill a 3600-foot irrigation well on his farmland. The complaint did not detail when 5D's purportedly negligent acts occurred or even when 5D began or stopped the work.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
