OSHA Launches Program to Combat Trenching Accidents
October 16, 2018 —
Tom Ichniowski – Engineering News-RecordIn the wake of a recent rise in fatal trenching cave-ins, the federal Occupational Safety and Health Administration has begun a targeted education and enforcement program to try to reverse the trend.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Pandemic-Related Construction Materials Pricing Poses Challenges in Construction Lawsuits
September 20, 2021 —
Nick Stewart - Construction ExecutiveDuring the global pandemic the construction industry saw unprecedented inflation in the cost of building supplies as a result of a myriad of issues. On May 7, 2021, lumber prices hit a record high at $1,670.50 per thousand board feet. This was more than six times their pandemic low in April 2020. This significant price spike was related to closure of sawmills during the height of the pandemic, low supply, soaring demand to expand existing homes or purchase new construction, the western U.S. wildfires and tariffs.
More recently, lumber prices have fallen but they are still up nearly 100% from spring 2020. Some experts believe that the recent wildfires in the western United States and upcoming hurricane season will cause prices to jump back up in the upcoming months.
Additionally, since March 2020, steel prices are up roughly 200%. The increase in steel prices is a result of many of the same factors causing lumber pricing spikes. Many steel mills shut down production or drastically reduced production during the early days of the pandemic expecting a deep recession and/or to comply with restrictive government mandates. Despite these industry expectations, demand for steel -elated products like grills and home appliances soared. These household demands for steel-based products impacted the price of steel for construction projects. Prior to the pandemic, hot-rolled steel traded between $500 and 800 per ton but hit an all-time high of $1,825 per ton in early July 2021.
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Nick Stewart, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Stewart may be contacted at
nstewart@turnerpadget.com
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
Bremer Whyte’s Newport Beach Team Prevails on a Motion for Summary Judgment in a Wrongful Death Case!
September 02, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations on another win to Orange County Partners
Jonathan Cothran and
Rachel Mihai for prevailing on a Motion for Summary Judgment in a wrongful death case!
Plaintiffs filed a wrongful death lawsuit alleging negligence and vicarious liability against BWB&O’s client, a licensed electrical contractor. BWB&O’s client installed a solar system at the Plaintiffs’ home in January 2018. In October 2018, an electrical fire broke out at the home in an upstairs bedroom. Tragically, the family’s father perished in the fire when he entered the home after the fire started. Plaintiffs alleged that BWB&O’s client was liable for the fire and Plaintiffs’ resulting injuries due to its electrical work on the solar system at the home.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Hawaii Supreme Court Reaffirms an "Accident" Includes Reckless Conduct, Finds Green House Gases are Pollutants
November 18, 2024 —
Tred R. Eyerly - Insurance Law HawaiiAnswering certified questions from the federal district court, the Hawaii Supreme Court reaffirmed its prior holding that reckless conduct is an "occurrence' or accident. The court further held that green house gas (GHG) emissions were pollutants under liability policies. Aloha Petroleum, Ltd. v. National Union Fire Ins. Co. of Pittsburg, PA., et al., 2024 Haw. LEXIS 179 (Haw. Oct. 7, 2024). [Disclosure - our office was co-counsel on an amicus brief in this case filed on behalf of the United Policyholders].
The City and County of Honolulu and the County of Maui sued several fossil fuel companies, including Aloha Petroleum, Ltd., for climate change-related harms. The suits alleged that the fossil fuel industry knew beginning in the 1960s that its products would cause catastrophic climate change. Rather than mitigate their emissions, defendants concealed their knowledge of climate change, promoted climate science denial, and increased their production of fossil fuels. Defendants' actions, the complaints alleged, increased carbon emissions, which caused significant damage to the counties.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Missouri Protects Subrogation Rights
April 15, 2024 —
Lian Skaf - The Subrogation StrategistThe point at which an insurance carrier possesses the equitable right of subrogation is an issue on which the states have differed. Some allow carriers to pursue rights of subrogation immediately upon payment and some have taken stricter approaches. Missouri falls into the latter group. By not allowing the carrier the right to file suit against third-party tortfeasors until the insured provides its carrier with an assignment of all its rights, Missouri’s approach has opened the door for challenges to subrogation rights.
In Megown v. Auto Club Fam. Ins. Co., 2024 Mo. App. LEXIS 82, the plaintiff-insureds Michael and Jane Megown (the Megowns) suffered a house fire on February 8, 2016. Their insurance carrier, Auto Club Family Insurance Company (Auto Club) reimbursed the Megowns for their property damage in the amount of $722,433.56. Subsequently, the Megowns sued Auto Club for breach of contract and later amended their complaint to add claims against Tyberius Enterprises, LLC d/b/a Crag Electric (Craig Electric), the third-party tortfeasor, for direct negligence, alleging both property damage and personal injuries. Auto Club intervened in the Megowns’ claim against Craig Electric to protect its interest as subrogee for its property damage payment to the Megowns. Craig Electric settled prior to trial, paying $1,000,000.00 to both the Megowns and Auto Club, to be allocated at a later date. After a bench trial that apportioned the settlement with $722,433.56 paid to Auto Club and $277,566.44 paid to Megowns – and a jury trial awarding no further damages – the Megowns appealed.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Nevada Insureds Can Rely on Extrinsic Facts to Show that An Insurer Owes a Duty to Defend
November 15, 2021 —
Sarah J. Odia & Scott S. Thomas - Payne & FearsOn Oct. 28, 2021, the Nevada Supreme Court in Zurich American Insurance Company v.. Ironshore Specialty Insurance Company, 137 Nev. Adv. Op. 66, held that an insured can rely on extrinsic facts to show that an insurer has a duty to defend the insured, as long as the facts were available to the insurer at the time the insured tendered the claim. The court also held that an insured has the burden of proving that an exception to an exclusion in an insurance policy applies to create a duty to defend.
In Zurich, Ironshore refused to defend to its insured against multiple property damage claims arising out of construction defects, claiming that its policies’ continuing and progressive damage exclusions barred coverage. The underlying lawsuits made no specific allegations describing when or how the property damage occurred. Ironshore claimed that the property damage had occurred due to faulty work that predated the commencement of its policies. Two different federal trial courts came to conflicting conclusions in the underlying cases. One held that Ironshore had a duty to defend because Ironshore failed to show that an exception to the exclusion did not apply. The second granted summary judgment in favor of Ironshore holding that the insured failed to meet its burden of proving that an exception to the exclusion applied.
Reprinted courtesy of
Sarah J. Odia, Payne & Fears and
Scott S. Thomas, Payne & Fears
Ms. Odia may be contacted at sjo@paynefears.com
Mr. Thomas may be contacted at sst@paynefears.com
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Brief Discussion of Enforceability of Anti-Indemnity Statutes in California
September 10, 2014 —
William M. Kaufman – Construction Lawyers BlogCalifornia Civil Code Section 2782 has been amended numerous times over the last several years. Essentially, Anti-indemnity statutes may not be fully effective for contracts entered into before January 1, 2009. Some developers and general contractors attempted to comply with the new law, and changed the indemnity provisions of their contracts post January 1, 2006. The time bracket, or zone of danger if you will, is between 1/1/06 and 1/1/09—during those three years California Civil Code §2782 was amended several times. After 1/1/09 Type I indemnity is gone in a residential construction context.
The 2005 amendment to Civil Code §2782 rendered residential construction contracts entered into after 1/1/06 containing a Type I indemnity provision in favor of builders unenforceable;
The 2007 amendment added contractors not affiliated with the builder to the list of contracting parties who could not take advantage of a Type I indemnity provision;
However, the 2008 amendment changed the effective date to 1/1/09, dropped any mention of 2006, and added GCs, other subs, their agents and servants, etc., to the list of possible contracting parties who could not take advantage of a Type I indemnity provision[.]
Reprinted courtesy of
William M. Kaufman, Lockhart Park LP
Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com
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