Changes to the Federal Rules – 2024
November 18, 2024 —
William L. Doerler - The Subrogation StrategistUnless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments.
Rules of Evidence
Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of fact understand the evidence - is generally not admissible into evidence.
Rule 613 currently states that extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it, or if justice so requires. As amended, the court has the discretion to forego this requirement.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
All Aboard! COVID-19 Securities Suit Sets Sail, Implicates D&O Insurance
April 27, 2020 —
Lorelie S. Masters, Michael S. Levine & Geoffrey B. Fehling - Hunton Insurance Recovery BlogIn a prior post, we predicted that novel coronavirus (COVID-19) risks could implicate D&O and similar management liability coverage arising from so-called “event-driven” litigation, a new kind of securities class action that relies on specific adverse events, rather than fraudulent financial disclosures or accounting issues, as the catalyst for targeting both companies and their directors and officers for the resulting drop in stock price. It appears that ship has sailed, so to speak, as Kevin LaCroix at D&O Diary reported over the weekend that a plaintiff shareholder had filed a securities class action lawsuit against Norwegian Cruise Line Holdings, Ltd. alleging that the company employed misleading sales tactics related to the outbreak.
The lawsuit alleges that the cruise line made false and misleading statements or failed to disclose in its securities filings sales tactics by the company that purported to provide customers with unproven or blatantly false statements about COVID-19 to entice customers to purchase cruises. Those allegations rely on two news articles reporting on the company sales practices in the wake of COVID-19: a March 11, 2020 Miami New Times article quoting leaked emails in which a cruise employee reportedly asked sales staff to lie to customers about COVID-19 to protect the company’s bookings; and a March 12, 2020 Washington Post article entitled, “Norwegian Cruise Line Managers Urged Salespeople to Spread Falsehoods about Coronavirus.” The lawsuit alleges that the company’s share price was cut nearly in half following these disclosures.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lorelie S. Masters,
Michael S. Levine and
Geoffrey B. Fehling
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
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Reconstructing the Francis Scott Key Bridge Utilizing the Progressive Design-Build Method
June 04, 2024 —
Lisa D. Love - The Dispute ResolverHaving awakened on the morning of March 26 to the devastating news of the collapse of Baltimore’s Francis Scott Key Bridge after being struck by the Dali, a 984 length /52 beam foot cargo container ship, I thought of the many times I crossed the bridge as a child growing up in Washington, D.C. I also recalled Montgomery Schyler’s comments on the opening of the Brooklyn Bridge, when he stated that “the work which is likely to be our most durable monument, and to convey some knowledge of us to the most remote posterity, is a work of bare utility; not a shrine, not a fortress, not a palace, but a bridge.”
I thought of the beauty of New York’s Mario Cuomo Bridge, a 3.1-mile cable-stayed twin-span bridge with eight traffic lanes, bicycle and pedestrian paths, six lookout points and room for future rapid transit. It was completed in 2018 and constructed under a design-build procurement model[i] at a cost of $3.98 billion. Accelerated bridge construction (ABC) techniques were utilized in its construction. ABC techniques employ innovative planning, design, materials, and construction methods in a safe and cost-effective manner to reduce the on-site construction time that occurs when building new bridges or replacing and rehabilitating existing ones. ABC techniques improve site constructability, total project delivery time, work-zone safety for the traveling public and traffic impacts, on-site construction time, and weather-related time delays.[ii]
I also thought of the gracefulness of Boston’s Leonard P. Zakim Bunker Hill Memorial Bridge, a 0.27-mile hybrid cable-stayed steel and concrete bridge with pedestrian and bicycle access that holds 10 lanes of traffic. The Zakim Bridge was completed in 2004 at a cost of approximately $100 million as part of the $24.3 billion Big Dig.[iii] Despite its elegant, streamlined appearance, the bridge was designed to be exceptionally strong, withstand winds over 400 miles per hour and endure a magnitude 7.9 earthquake.[iv]
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Lisa D. Love, JAMS
Background Owner of Property Cannot Be Compelled to Arbitrate Construction Defects
November 07, 2012 —
CDJ STAFFIn Truppi v. Pasco Engineering, John Quattro sued Property Management Contractors, Inc. over construction defects in William Truppi’s home. All parties are named in the suit. The California Court of Appeals ruled that Property Management Contractors, Inc. (PMCI) could not compel Mr. Quattro to arbitration.
The background of the case involves two houses built in Encinitas, California by PCMI: one for Mr. Truppi at 560 Neptune, and one for Mr. Quattro at 566 Neptune. Both contracts contained an arbitration provision. Mr. Quattro signed the contract for his residence and Mr. Truppi signed the other. Mr. Quattro then sued PCMI and its principal, William Gregory. Mr. Quattro claimed to be the true contracting party for the 560 Neptune residence and a third party beneficiary of the contract Mr. Truppi signed, and stated that PCMI was aware of this.
PCMI in a demurrer stated that Quattro “had only a ‘prospective beneficial interest in the property upon its eventual sale or lease.’” Mr. Quattro amended his complaint to account for the issues raised by PCMI. The court rejected PCMI’s demurrer to the amended complaint.
Finally, PCMI and Gregory asserted that Quattro was “not the real party in interest” and could not sue. PCMI continues to assert that Quattro lacks standing, but their attorney sent Quattro an e-mail stating, “While my client disputes that you are a party, and that you lack standing to assert the claim, to the extent you do so I believe you are obligated to proceed by way of arbitration.”
The court did not cover the issue of Quattro’s standing in the case, only if he could be compelled to arbitration. The court affirmed the lower court’s finding that Quattro could not be compelled to arbitrate the construction defect claim as neither he nor Gregory signed the contract in an individual capacity. Further, the court noted that PCMI and Gregory “denied the existence of an agreement between themselves and Quattro on the 560 contract,” and cannot compel arbitration on a non-existent agreement. And while non-signatories can, in some situations be compelled to arbitrate, the court found that “these cases are inapplicable because here they seek to have the alleged third party beneficiary (Quattro) compelled by a nonsignatory (Gregory).” The arbitration clause in question “expressly limited its application to persons or entities that signed the 560 contract.”
As Mr. Quattro was not a signatory to that agreement, the court found that he could not be held to its arbitration provision.
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Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims
November 21, 2017 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogOriginally published by CDJ on August 30, 2017
On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.”
In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty.
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Rick Erickson, Snell & WilmerMr Erickson may be contacted at
rerickson@swlaw.com
Colorado Hotel Neighbors Sue over Construction Plans
October 02, 2015 —
Beverley BevenFlorez-CDJ STAFFNeighbors of the Sky Hotel in Aspen, Colorado, filed suit against the owners “alleging that the construction project will impede access to their units and steal their airspace,” reported the Aspen Daily News Online.
The problem, the plaintiff suit alleges, is that the Sky’s plan would close the “east-west alley,” which is also used by the condo complex: “Owners, renters and guests mainly use the alley, which is configured for one-way traffic entering on Durant Avenue and exiting at Original Street, to access their condos in the Chaumont, says the 12-page complaint filed by local attorney Jody Edwards.”
The plaintiffs are demanding that the plan be voided or at least require the issues in the suit to be addressed. They are also seeking attorney and other costs.
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California Court Holds No Coverage Under Pollution Policy for Structural Improvements
October 02, 2018 —
Brian Margolies - TLSS Insurance Law BlogIn its recent decision in Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co., 2018 U.S. Dist. LEXIS 138276 (N.D. Cal. Aug. 15, 2018), the United States District Court for the Northern District of California had occasion to consider the issue of a pollution liability insurer’s obligation to pay for the redesign of a structural support system necessitated by the alleged presence of soil contamination.
Aspen’s insured, Essex, owned a parcel of property it was in the process of redeveloping for commercial and residential purposes. The project required excavation activities in order to construct an underground parking lot, and as part of this process, Essex designed a temporary shoring system comprising tied-in retaining walls in order to stabilize the area outside of the excavation. During the excavation work, construction debris was encountered requiring removal. Aspen agreed to pay for a portion of the costs to remove and dispose the debris under the pollution liability policy it issued to Essex.
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Brian Margolies, Traub Lieberman Straus & Shrewsberry LLPMr. Margolies may be contacted at
bmargolies@tlsslaw.com
Florida extends the Distressed Condominium Relief Act
June 17, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Distressed Condominium Relief Act had been poised to expire on July 1st, but has now been extended by two additional years by the Florida legislature, the National Review reported. The act was Part VII of the Condominium Act in 2010, and has been previously extended twice. According to the National Review, “This Legislation attempted to allay the fears of potential investors about incurring developer liability in connection with the purchase of bulk units. The Act created a shield in favor of bulk purchasers from such potential liability, especially construction defects liability.”
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