Determining the Cause of the Loss from a Named Windstorm when there is Water Damage - New Jersey
March 23, 2020 —
Anna M. Perry - Saxe Doernberger & VitaWater damage, while one of the leading causes of loss under a property policy, often results in some of the most complex claims due to the intersection of exclusions, sublimits, and complex wording within the policy. One particularly difficult issue is whether water damage caused by a storm surge is covered by the flood sublimit, or under the general policy or water limit. In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s (“NJTC v. Lloyd’s”), the New Jersey Appeals Court found that the “flood” sublimit of the policy should not apply as the cause of the loss was a “named windstorm” and not a “flood.”
In NJTC v Lloyd's the court was asked to determine whether a flood sublimit applied to losses sustained during Superstorm Sandy. The court found that although there was “flooding,” the water damage was more closely related to the “named windstorm”, and therefore, the $400 million policy limits should apply. The court focused its analysis on the definitions for “flood” and “named windstorm” and by applying the efficient proximate cause doctrine to determine which would apply.
When reviewing the definitions within the property policies, the court determined that although the loss would qualify under the definition of “flood,” the policy also contained a definition for “named windstorm” which “more specifically encompasses the wind driven water or storm surge associated with a ‘named windstorm’”1. In addition, the policy did not specifically state that “storm surge” associated with a “named windstorm” should be considered a “flood” event and fall under the “flood” sublimit.
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Anna M. Perry, Saxe Doernberger & VitaMs. Perry may be contacted at
amp@sdvlaw.com
Construction Defect Notice in the Mailbox? Respond Appropriately
August 04, 2011 —
Douglas Reiser, Builders Council BlogRecently, I have seen a rash of ignored construction defect notices. What is a construction defect notice? It’s a statutorily required notice, sent from a homeowner to a contractor, listing a number of defects found at their property. If you get one, don’t ignore it.
The Revised Code of Washington includes a number of provisions intended for residential construction disputes. Among them is the “Notice to Customer” requirement in RCW 18.27.114, which can preempt a contractor’s lien rights, and the “Notice of Construction Defects” found in RCW 64.50.020.
The Notice of Construction Defects is a standard notice mandated by RCW 64.50, a chapter in the Revised Code of Washington, intended to provide a pre-litigation resolution process for contractors and consumers. The chapter applies only to those losses “caused by a defect in the construction of a residence or in the substantial remodel of a residence.”(See “Action” RCW 64.50.010).
Unfortunately, many contractors will simply ignore these notices or tell the homeowner to make a warranty claim. But, the notice actually provides a contractor with a forty-five (45) day window to alleviate the dispute.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Georgia Amends Anti-Indemnity Statute
June 02, 2016 —
David R. Cook Jr. – AHHC Construction Law BlogIn its most recent session, the Georgia General Assembly passed HB 943, which amends Georgia’s Anti-Indemnity Statute. The amendment expands the Anti-Indemnity Statute beyond construction contracts to include contracts for engineering, architectural, and land surveying services (“A/E Contracts”).
In a
prior post, we discussed
Georgia’s Anti-Indemnity Statute, which generally prohibits indemnity clauses in construction contracts that require one party (the “Indemnitor”) to indemnify another party (the “Indemnitee”) if property damage or bodily injury results from the Indemnitee’s sole negligence. The
prior post, discussed the Supreme Court of Georgia’s broad interpretation of the Anti-Indemnity Statute.
HB 943 adds subpart (c), which states:
A covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement for engineering, architectural, or land surveying services purporting to require that one party to such contract or agreement shall indemnify, hold harmless, insure, or defend the other party to the contract or other named indemnitee, including its, his, or her officers, agents, or employees, against liability or claims for damages, losses, or expenses, including attorney fees, is against public policy and void and unenforceable, except for indemnification for damages, losses, or expenses to the extent caused by or resulting from the negligence, recklessness, or intentionally wrongful conduct of the indemnitor or other persons employed or utilized by the indemnitor in the performance of the contract. This subsection shall not affect any obligation under workers’ compensation or coverage or insurance specifically relating to workers’ compensation, nor shall this subsection apply to any requirement that one party to the contract purchase a project specific insurance policy or project specific policy endorsement.
(Emphasis added.)
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David R. Cook Jr., Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Cal/OSHA-Approved Changes to ETS Will Take Effect May 6, 2022
May 16, 2022 —
Matthew C. Lewis & Nicole R. Kardassakis - Payne & FearsA new, third revised version of the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”) has been approved by Cal/OSHA, and is expected to go into effect on May 6, 2022. This updated ETS will likely be in effect through Dec. 31, 2022.
The language still needs to be reviewed, finalized, and filed with the Secretary of State by the Office of Administrative Law, but a redline of the proposed changes that Cal/OSHA has approved is available here. Much of the previous ETS (which took effect in January 2022, and we discussed here) will remain in effect. But the new version includes some key changes, including the following:
- Employers will now have similar obligations toward employees who are fully vaccinated and employees who are not fully vaccinated with respect to testing and face coverings. Employers must make COVID-19 testing available at no cost to all symptomatic employees during the employee’s paid time, regardless of the employee’s vaccination status. Employers also must make respirators available to all employees upon request, again regardless of the employee’s vaccination status.
Reprinted courtesy of
Matthew C. Lewis, Payne & Fears and
Nicole R. Kardassakis, Payne & Fears
Mr. Lewis may be contacted at mcl@paynefears.com
Ms. Kardassakis may be contacted at nrk@paynefears.com
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We've Surveyed Video Conferencing Models to See Who Fits the CCPA Bill: Here's What We Found
August 10, 2020 —
Shaia Araghi & Kyle Janecek – Newmeyer DillionWorldwide closures as a result of COVID-19 have resulted in an extreme surge in video conferencing use. This spike in use has also resulted in increased concern about the privacy of these video conferencing applications, including a class action lawsuit against one of the applications: Zoom. Because of this, we took a deeper look into the privacy policies of six prominent video conferencing applications and created a chart showing each video conferencing application's compliance with the California Consumer Privacy Act. Reviewing these materials will provide an awareness of the deficiencies within the Privacy Policies, which can help you become more well-informed about your own rights, and more knowledgeable about any deficiencies in your own business' privacy policy. If these widely-used and widely-known companies can have deficiencies, it is an important way to re-examine and fix these issues in your own.
To determine this, we reviewed the CCPA's twenty requirements for compliance, including: (1) the existence of a privacy policy, (2) required disclosures of information regarding the existence of rights under the CCPA, (3) instructions on how to exercise rights, and (4) providing contact information.
Here are the top 5 discoveries from our review:
1)
No videoconferencing applications address authorized agents. This makes sense, as the treatment of authorized agents were just laid out in the recently finalized regulations. This is a reminder to businesses to utilize these regulations when setting up compliance measures to ensure there is no risk in missing out on requirements like this, which will still be required and enforced by the Attorney General.
2)
Three platforms (WebEx, Skype, and Teams) have separate tabs and pages detailing privacy policies, and don't necessarily have a single unified and simple policy. Because of the accessibility requirements, this means that the privacy policy may not be readily accessible on the business's website, and may open companies to arguments that the entirety of their policy is non-compliant if key portions are hidden or otherwise inaccessible. Therefore to eliminate this concern, keep your policy unified, simple and in one location for ease of viewing.
3)
None of the platforms address information relating to minors under the age of 16, which is notable as some of these platforms have been used for online education. The final regulations outline different treatment for minors from ages 13 to 16, and for minors under the age of 13. As a result, privacy policies focused on compliance with the Children's Online Privacy Protection Act (COPPA) may be insufficient as it only applies to those under 13 years old.
4)
While all of the platforms state that no sale of information occurs, two platforms (Zoom and GoToMeeting) go above and beyond to explain the right to opt-out of sales. This is especially great as the CCPA permits that no notice needs to be given if no sale occurs. By taking this extra step, Zoom and GoToMeeting explain to their users that they have additional rights, which may be necessary as these platforms are also used by other entities, which may collect or otherwise use information collected from a videoconference meeting.
5)
Only one platform (Wire) does not give instructions on how to delete information. The CCPA regulations still require that information regarding instructions on how to delete information be given. The lack of instructions does not relieve Wire from its obligations, and similarly situated businesses may find themselves in a position where they will have to comply with a consumer request, in any form, as the regulations require that a business either comply, or list the proper instructions on how to make the request.
Download the Full Breakdown
To learn more about our findings and how the video conferencing companies stacked up against the CCPA, visit: https://www.newmeyerdillion.com/ccpa-privacy-policy-compliance-videoconferencing-platforms/. We hope this serves as a reminder to everyone to read the privacy platforms for the services you use and update your company's privacy policies to comply with the most recent regulations, as none of these services are currently in complete compliance, and it is only a matter of time before enforcement begins.
Shaia Araghi is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber-related matters, including compliance and prevention that can protect their day-to-day operations. For more information on how Shaia can help, contact her at shaia.araghi@ndlf.com.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
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Justin Bieber’s Unpaid Construction Bill Stalls House Sale
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Toronto Sun reported that Justin Bieber’s Calabasas, California house sale to Khloe Kardashian has been stalled due to a an unpaid construction bill. Bieber sold the home for $7.2 million, but allegedly owes $85,000 to a construction company for home repairs.
Bieber moved out of his mansion in Calabasas “to Atlanta, Georgia after numerous encounters with the police regarding alleged loud parties, speeding in the gated community and 'egging' a [neighbor’s] house,” according to the Toronto Sun.
Bieber has a week to pay the lien, or the house sale does not go through.
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DA’s Office Checking Workers Comp Compliance
February 10, 2012 —
CDJ STAFFThe San Bernardino office of the California District Attorney is partnering with the California Contractor’s State License Board to check if subcontractors are holding the required workers compensation insurance. The High Desert Daily Press reports that the process of checking at sites has been going on for several months.
Investigators visit sites and ask supervisors to provide a list of subcontractors which the state then checks for compliance. One worker was quoted that insurance inspections were so rare that he had never seen one before, despite 20 years in construction.
On one day, investigators in two teams visited fourteen construction sites and reviewed the insurance status of twenty-two firms. Three were found out of compliance and stop work orders were issued.
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Construction Litigation Roundup: “Ursinus is Cleared!”
March 11, 2024 —
Daniel Lund III - LexologyUrsinus University in Pennsylvania – a “private, nonprofit liberal arts college” – funded a construction project for a new building utilizing monies loaned by the Montgomery County Health and Higher Education Authority, a public economic development authority “formed by the Board of County Commissioners… authorized to issue bonds relative to projects for eligible educational institution such as Ursinus.”
Loans up to the amount of $23,000,000 became available to the University, and construction proceeded using the loans as construction funds. At issue: whether a project was to be considered publicly funded project such that prevailing wage rates were required to be paid. IBEW filed a related grievance with the Pennsylvania Department of Labor and Industry’s Bureau of Labor Law Compliance, which was refused by the Bureau, on the basis that because work was “financed completely by loans from the Authority, which Ursinus was required to repay in their entirety, the Project was ultimately funded through private sources and exempt from coverage under the [Pennsylvania Prevailing Wage Act].” A grievance to the Prevailing Wage Appeals Board ensued, and the Board took a different position.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
