Future Army Corps Rulings on Streams and Wetlands: Changes and Delays Ahead
November 06, 2023 —
Mark Sudol - Engineering News-RecordNew regulations published by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers dramatically reduce federal protections of previously regulated streams and wetlands. This change will lead to further controversy and litigation as the legal terms are applied to physical features on the ground leading to conflicting interpretations by the regulated public, environmentalists and federal agencies.
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Mark Sudol, Engineering News-Record
ENR may be contacted at enr@enr.com
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Jason Poore Receives 2018 Joseph H. Foster Young Lawyer Award
July 21, 2018 —
Jason Poore - White and Williams LLPJason Poore, an associate in the General Litigation Group, recently received the 2018 Joseph H. Foster Young Lawyer Award during the Philadelphia Association of Defense Counsel’s annual meeting. The Joseph H. Foster Young Lawyer Award honors “a young lawyer who best exemplifies the qualities of professionalism and dedication as defense counsel in the practice of law and in the promotion of the highest ideals of justice in the community."
Jason continues to make significant contributions to the local bar and community. In addition to serving on the Executive Committee of the Philadelphia Bar Association Young Lawyers Division, he is the creator and Chair of the PBA's Youth Courts Committee.
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Jason Poore, White and Williams LLPMr. Poore may be contacted at
poorej@whiteandwilliams.com
Overtime! – When the Statute of Limitations Isn’t Game Over For Your Claim
August 07, 2022 —
Bradley E. Sands, Jones Walker LLP - ConsensusDocsStatutes of limitations establish the period of time within which a claimant must bring an action after it accrues. An action can be filing a lawsuit and, in some instances, filing a demand for arbitration. But a multi-year construction project could be longer than the applicable statute of limitations. For example, under Delaware or North Carolina law, the statute of limitations for a breach of contract is only three years.1 So a claim for breach of a construction contract that occurred (i.e. accrued) at the beginning of a four-year project under Delaware or North Carolina law may expire before the project is completed.
Generally, a claim accrues at the time of the breach (however, it is important to note that this is not always the case and claim accrual could be the subject of an entirely different article). During the course of a multi-year construction project, proposed change orders or claims for additional compensation can sit, unanswered or unpursued, for months. Or, the parties may informally agree as part of regular project communications to put off dealing with a claim head-on until the end of the project. On certain projects, slow-walking a claim is understandable, as a contractor may be hesitant to sue an owner in the middle of a multi-year project and risk upsetting an otherwise good working relationship. But a delay in formally asserting a put-off claim after it accrues could result in the claim falling subject to a statute of limitations defense.
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Bradley E. Sands, Jones Walker LLP (ConsensusDocs)Mr. Sands may be contacted at
bsands@joneswalker.com
Insurer’s Duty to Defend: When is it Triggered? When is it Not?
February 18, 2015 —
Zach McLeroy – Colorado Construction LitigationIn Colorado it is well recognized that an insurer has a broad duty to defend its policyholder against pending claims. An insurer’s duty to defend is triggered when the underlying complaint against the insured alleges any set of facts that might fall within the coverage policy. Greystone Construction, Inc. v. National Fire & Marine Insurance, Co., 661 F.3d 1272, 1284 (10th Cir. 2011). Even if the insurer’s duty to defend is not clear from the pleadings filed against the insured, the insurer’s duty to defend is triggered if the claim is potentially or arguably within the policy coverage. Id. If there is any doubt as to whether a theory of recovery falls within the policy coverage, such doubt is decided in favor of the insured and the insurer’s duty to defend is triggered. Id. In order to avoid this duty to defend, an insurer must show that an exemption to the policy applies and that no other basis exists for coverage under the policy.
In Cornella Brothers, Inc. v. Liberty Mutual Fire Insurance Company, 2014 WL 321335 (D. Colo. Jan. 29, 2015), the Court was to determine whether Liberty Mutual Fire Insurance Company (“Liberty Mutual”) had a duty to defend a lawsuit filed against its insured, Cornella Brothers, Inc. (“Cornella”). The underlying lawsuit alleged construction defects at a recharging facility. Upon being named a party to the underlying litigation, Cornella provided notice to Liberty Mutual and demanded that Liberty Mutual defend Cornella.
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Zach McLeroy, Higgins, Hopkins, McLain & Roswell, LLCMr. McLeroy may be contacted at
mcleroy@hhmrlaw.com
Industry Practices Questioned After Girder Fractures at Salesforce Transit Center
April 10, 2019 —
Nadine M. Post - Engineering News-RecordAttendees of a recent presentation on the earthquake-resistant structure of San Francisco’s Salesforce Transit Center—intended to provide a safe haven when the Big One hits—lauded the engineering of the 4.5-block-long hollow tube that supports the 1.2-million-sq-ft “groundscraper.” But there also was much talk of the project’s black eye, as a consequence of brittle fractures of the bottom flanges of two bridge-like built-up plate girders that span 87 ft over Fremont Street.
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Nadine M. Post, ENRMs. Post may be contacted at
postn@enr.com
Construction Litigation Roundup: “The Jury Is Still Out”
October 30, 2023 —
Daniel Lund III - Lexology“The Seventh Amendment guarantees the right to a trial by jury for a legal claim in a civil action.” So, isn’t the law, well, the law?
Well, perhaps.
Some axioms to remember in contracting are that parties are typically able to agree in a contract to anything that is lawful, and that all such lawful agreements essentially become the “law” between the parties. It is on these principles that courts issue jurisprudence which becomes binding on future litigants – for example, concerning waiver of any right to trial by jury.
Hence, when a second-tier subcontractor on a federal project sought a jury for a lawsuit it had against a general contractor’s sureties, the sub was successfully rebuffed by the sureties based upon a waiver to trial by jury contained in the relevant subcontract. The court noted various matters to be considered in connection with the generally enforceable jury waiver – including the conspicuousness of the waiver (and, therefore, whether the subcontractor “knowingly” agreed to the waiver), as well as the relative bargaining power of the parties to the agreement (here, the sub was self-proclaimed to be a “leader in the construction contracting field”) – and affirmed the legality of the waiver.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Excess Policy Triggered Once Retention Paid, Even if Loss Not Covered By Excess
July 23, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Fifth Circuit determined that the Umbrella policies took effect once the primary insurance was exhausted by claims not covered by the Umbrella policies. Indem. Ins. Co. of N. Am. v. W&T Offshore, 2014 U.S. App. LEXIS 11775 (5th Cir. June 23, 2014).
W&T had primary and Umbrella/Excess coverage to protect its offshore oil rigs from hurricane damage. The primary policies covered property damage and third party claims. The Umbrella policies only covered third-party claims. All policies covered Removal of Debris (ROD).
In September 2008, Hurricane Ike caused damage to 150 offshore platforms in which W&T had an interest. W&T submitted over $150 million in claims for property damage to the primary carriers. The primary policies had a $10 million self-insured retention (SIR). The primary policies covered $150 million in coverage over the $10 million SIR. Anticipating that W&T would submit all of its ROD claims, which were estimated to exceed $50 million, the Umbrella carriers filed suit for a declaratory judgment.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Resolving Condominium Construction Defect Warranty Claims in Maryland
September 04, 2018 —
Nicholas D. Cowie - Maryland Condo Construction Defect BlogA Guide for Maryland Condominium Associations
Newly constructed and newly converted condominiums in Maryland often contain concealed or “latent” construction defects. Left undetected and unrepaired, latent defects stemming from the original construction of a condominium can cause extensive damage over time, requiring associations to assess their members for unanticipated repair costs that could have been avoided by making timely developer warranty claims.
This article provides a general overview of how Maryland condominium associations transitioning from developer control can proactively identify and resolve construction defect claims with condominium developers and builders before warranty and other legal rights expire. This proactive approach typically results in an amicable resolution without the need for litigation.
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Nicholas D. Cowie, Cowie & MottMr. Cowie may be contacted at
ndc@cowiemott.com