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The decision is a significant win for policyholders as it reiterates their ability to seek all damages flowing from an insurer’s breach of contract, even if such damages are in addition to policy benefits.

Florida’s Citizens Property Insurance May Be Immune From Bad Faith, But Is Not Immune From Consequential Damages

Monday, July 15, 2019 — Michael S. Levine, Andrea DeField & Daniel Hentschel - Hunton Insurance Recovery Blog

A coverage dispute arising as a result of property damage from Hurricane Frances, which occurred in 2004, will continue following a Florida appellate court decision in an action brought against Citizens Property Insurance Corp.

The insureds, Manor House, LLC, Ocean View, LLC, and Merrit, LLC, presented a claim to Citizens for damage sustained at nine apartment buildings as a result of Hurricane Florence. After payments for a portion of the property damage were sustained, Citizens continued to dispute the full amount due. Meanwhile, the insureds suffered lost rental income because of the delay. Ultimately, the insureds filed suit against Citizens alleging, among other things, breach of contract and fraud, and sought to recover extra-contractual damages for loss of rental income due to the delay in adjusting and repairing the damaged property.

The trial court granted Citizens’ motion for partial summary judgment on several issues, including Citizens’ motion for partial summary judgment regarding appraiser and umpire fees; motion for partial summary judgment to prevent the insureds from pursuing a claim for extra-contractual, consequential damages; and motion for judgment on the pleadings on the insured’s claim for fraud.

Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Andrea DeField and Daniel Hentschel
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. DeField may be contacted at adefield@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com


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The Supreme Court overturned Williamson County, in Knick v. Township of Scott, 588 U.S. _____ (2019).

SCOTUS Opens Up Federal Courts to Land Owners

Monday, July 15, 2019 — Wally Zimolong - Supplemental Conditions

For nearly 36 years, the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) severely frustrated, if not all but foreclosed, a property owner’s right to bring a claim in federal court based on a regulatory taking. Under the Fifth Amendment, a property owner whose land has been “taken” by the government is entitled to just compensation. There are two types of takings direct or “inverse” or regulatory takings. A direct taking is where the government declares that it needs your land for public use and offers to pay you compensation. You might disagree with the amount offered – and that often is the case. But, a mechanism exists whereby a neutral third party – a condemnation board – will arrive at the compensation that is owed. On the other hand, an inverse condemnation or regulatory taking occurs when the government takes some action that restricts the use of the land in such a way as to severely impact it beneficial economic use. For example, if you own a strip of commercial property and intend to develop it and then the municipality comes along and suddenly changes the zoning classification of the parcel such that you can no longer develop it in a beneficial way, then you might have a regulatory takings case.

Under the Court’s Williamson County decision, property owners falling within the later category were required to exhaust state remedies before proceeding to federal court under a claim that their Fifth Amendment rights were violated. The problem with this is that, as the Supreme Court explained, it creates a Catch-22. If property owners exhaust their state remedies and the state remedies result in an unfavorable outcome, the federal court is powerless to overturn that decision under the doctrines of res judicata and the full faith and credit clause of the Constitution.

Well, yesterday, the Court overturned Williamson County, in Knick v. Township of Scott, 588 U.S. _____ (2019). There the Court held unequivocally a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under Section 1983 at that time.”

Reprinted courtesy of Wally Zimolong, Zimolong LLC

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Grand central station in New York

A new law and regulations mandating that the MTA debar contractors, consultants and suppliers for unexcused schedule and cost overruns creates a new and unfair existential risk.

MTA’S New Debarment Powers Pose an Existential Risk

Monday, July 15, 2019 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.

The normal project and contractual risks faced by contractors, consultants and suppliers to the Metropolitan Transportation Authority are considerable. A new law and regulations mandating that the MTA debar contractors, consultants and suppliers for unexcused schedule and cost overruns creates a new and unfair existential risk.

The new law, Public Authorities Law Section 1279-h, slipped into the New York State budget bill and passed without public comment, was enacted on April 12, 2019. Implementing regulations were issued on June 5, 2019, and mandate that the MTA debar contractors (defined to include consultants, vendors and suppliers) if they: (1) fail to achieve substantial completion of their contractual obligations within 10% of the adjusted contract time; or (2) present claims for additional compensation that are denied in an amount that exceeds the total adjusted contract amount by 10% or more.[1]

To say that your business and your livelihood are at risk is not an overstatement. The MTA umbrella includes the New York City Transit Authority, MTA Capital Construction, Bridges & Tunnels, Long Island Railroad and Metro North, among others. A debarment by one of these authorities will lead to a debarment by all of them, and then to a debarment by all New York State agencies and authorities,[2] and possibly debarment across state lines. Public and major private owners, as part of their RFP and procurement processes, routinely inquire regarding a bidding contractor’s debarment history.

The risk is to new contracts and, because the MTA has decided to give retroactive effect to the law and regulations, to contracts that are already ongoing (even though these risks could not have been considered, priced or agreed to by contractors or their sureties).

Reprinted courtesy of Peckar & Abramson, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte
Mr. Charney may be contacted at scharney@pecklaw.com
Mr. Chertoff may be contacted at gchertoff@pecklaw.com
Mr. Monte may be contacted at pmonte@pecklaw.com


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Midwest Floods are Hampering River Projects

July 15, 2019 — Engineering News-Record

The Midwest’s waterways have been hit hard by an unusually rainy and snowy spring. Since March, the Mississippi River has maintained high water levels and crested at near-record levels on May 1. The flooding is also impacting construction operations along the river.

ENR may be contacted at ENR.com@bnpmedia.com

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Few Insurance-Related Bills Passed by 2019 Session of Hawaii Legislature

July 15, 2019 — Tred R. Eyerly - Insurance Law Hawaii

Only four insurance-related measures were enacted by the Hawaii Legislature in the recently concluded 2019 session. The legislation is as follows:

HB 273 - This bill establishes an exemption for insurers issuing group policies from the required annual privacy notice to individual customers under certain circumstances. The bill was transmitted to the Governor on April 24, 2019.

SB 25 - Related to health insurance, the measure amends portions of the Hawaii Insurance Code under title 24 to update and improve existing code provisions. It allows the Insurance Division to create stopgap measures to implement the National Association of Insurance Commissioners' Health Benefit Plan. The bill was enrolled to the governor on May 6, 2019.

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Samsung Bets It Can Sell Smart-Home Tech by Building the Homes

July 15, 2019 — Sam Kim & Kyunghee Park - Bloomberg

For years, Samsung has pitched customers internet-connected TVs, refrigerators, and other cornerstones of the home re-imagined for the data-overload era. Now the South Korean engineering-to-gadgets conglomerate is trying to go a step further: making the home itself.

Inside an airy, lavish model house in Seoul, Samsung’s virtual assistant, Bixby, can show visitors what’s inside the kitchen fridge while Amazon’s Alexa assistant controls the living-room lighting and A/C, and a speaker developed by Naver Corp. recommends music and TV shows. Samsung software overlays the in-house and competing products to create a unified control system, and so the company might someday be able to analyze the data created to refine its so-called internet of things.

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Construction Law & Government Contracting

July 15, 2019 — Beverley BevenFlorez – CDJ Staff

This 8th annual Construction Law and Government Contracting seminar will focus on prosecution and defense of construction related claims as well as bidding upon and successfully performing government contract work. It’s relevant for Architects, Attorneys, Contractors, Engineers, Government Employees and Municipal Employees. Topics include lien, bond, and Little Miller Act claims; general employment, immigration, Fair Labor Standard Act (FLSA), and prevailing wage concerns for employers; zoning and insurance issues; P3 projects and financing; and a host of government contracting issues

October 8th-9th, 2019
Hilton Garden Inn Midtown / Homewood Suites
97 10th Street NW
(Corner of 10th ST NW and Williams ST NW)
Atlanta, GA 30309

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Blue question mark

A recent opinion maintained that a general release that bars unknown claims does NOT mean a fraud claim will be barred since the last element to prove a fraud had not occurred.

Release Of “Unknown” Claim Does Not Bar Release Of “Unaccrued” Claim: Fair Or Unfair?

Monday, July 15, 2019 — David Adelstein - Florida Construction Legal Updates

A general release of “unknown” claims through the effective date of the release does NOT bar “unaccrued” claims. This is especially important when it comes to fraud claims where the facts giving rise to the fraud may have occurred prior to the effective date in the release, but a party did not learn of the fraud until well after the effective date in the release. A recent opinion maintained that a general release that bars unknown claims does NOT mean a fraud claim will be barred since the last element to prove a fraud had not occurred, and thus, the fraud claim had not accrued until after the effective date in the release. See Falsetto v. Liss, Fla. L. Weekly D1340D (Fla. 3d DCA 2019) (“The 2014 [Settlement] Agreement’s plain language released the parties only from “known or unknown” claims, not future or unaccrued claims. Because there is a genuine issue of material fact as to whether the fraud claim had accrued — that is, whether Falsetto [party to Settlement Agreement] knew or through the exercise of due diligence should have known about the alleged fraud at the time the 2014 Agreement was executed — the trial court erred in granting summary judgment on those fraud claims.”).

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Attorney Shannon M. Warren analyzes the case Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l.

When an Insurer Proceeds as Subrogee, Defendants Cannot Assert Contribution Claims Against the Insured

Monday, July 15, 2019 — Shannon M. Warren - The Subrogation Strategist

In Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint.

The underlying subrogation action involved allegations of strict liability, negligence and breach of warranty against a pellet heater manufacturer and the retailer who sold the heater. The claims arose from a fire allegedly originating from the heater, which spread to the insureds-subrogors’ home causing property damage, along with consequential damages. Pursuant to the applicable insurance policy, the insureds-subrogors’ insurer issued payments to its insureds-subrogors. Thereafter, the insurer filed suit against the heater manufacturer and retailer.

The defendants filed a motion for leave to file a third-party complaint against the plaintiff’s insureds-subrogors, seeking to assert a contribution claim. The defendants alleged that the insureds-subrogors failed to properly install and maintain the pellet heater. The defendants also sought a jury instruction that would permit the jury to apportion fault to the insureds-subrogors, resulting in a reduction of the plaintiff’s recovery. The court looked to federal procedural law, but Kentucky substantive law to decide the defendants’ motion.

Reprinted courtesy of Shannon M. Warren, White and Williams

Ms. Warren may be contacted at warrens@whiteandwilliams.com

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Anthony B. Cavender discusses the latest federal regulatory agenda.

Future Environmental Rulemaking Proceedings Listed in the Spring 2019 Unified Federal Agenda

Monday, July 15, 2019 — Anthony B. Cavender - Gravel2Gavel

The latest federal regulatory agenda has been released, which, among other matters, lists proposed and projected environmental regulatory proceedings being considered by different departments and agencies. Here are some selected items.

EPA
1. The Water Office

  • EPA plans to issue in December 2019 a Notice of Proposed Rulemaking (NPRM) to consider making a regulatory determination as a prelude to listing as drinking water contaminants PFOA and PFOS pursuant to the Safe Drinking Water Act.
  • EPA (along with the Corps of Engineers) plans to issue an NPRM in December 2019 that will propose to revise and update its 2008 mitigation banks and in-lieu fee programs, with a final rule scheduled for September 2020.
  • An NPRM to revise the 2015 effluent limitations guidelines and standards for the Steam Electric Power Generating Point Source Category will be released in June 2019.
Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 425 attorneys practicing in 12 locations throughout the United States and in Mexico.

Southern California Super Lawyers Recognizes Four Snell & Wilmer Attorneys As Rising Stars

Monday, July 15, 2019 — Snell & Wilmer

Snell & Wilmer is pleased to announce that four attorneys in the Orange County and Los Angeles offices have been selected for inclusion in the 2019 Southern California Rising Stars list.

Steffi Gascón Hafen, Estate Planning and Probate
Hafen is a Certified Specialist in Estate Planning, Trust and Probate Law, California Board of Legal Specialization. Her practice is concentrated in tax, trust, and estate matters with emphasis in estate planning, trust and probate administration, and estate and gift taxation.

Irina Ling, Tax
Ling's practice is concentrated in estate planning and taxation matters. She has experience assisting clients with all aspects of estate and tax planning, including advising clients on various charitable giving devices and business succession. Irina also assists clients with estate and gift tax issues, property tax issues, and probate and trust administration.

Joshua Schneiderman, Mergers and Acquisitions
Schneiderman advises clients on a wide range of transactional matters, including mergers and acquisitions, joint ventures and public and private offerings of debt and equity securities. He advises clients on matters related to franchising, including the establishment of new franchise systems and the expansion of existing franchise systems nationally and internationally.

Jeffrey Singletary, Business Litigation
Singletary concentrates his practice on business litigation in state and federal courts. He represents clients in matters involving breach of contract, business competition torts, real estate, public and private construction projects, and various intellectual property litigation matters, including trademark, trade dress, trade secret and patent claims.


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DOJ says the firm’s alleged conduct “strikes at the very heart of its bargain with the Navy.”

Tetra Tech-U.S. Cleanup Dispute in San Francisco Grows

Monday, July 15, 2019 — Mary B. Powers - Engineering News-Record

The U.S. Justice Dept. and consultant Tetra Tech are ramping up a battle over alleged false claims for payment the firm submitted to the U.S. Navy under $261 million in contracts for radiological tests and cleanup at San Francisco’s former Hunters Point base, a Superfund site being developed for up to 12,000 residential units.

Reprinted courtesy of Mary B. Powers, ENR

ENR may be contacted at ENR.com@bnpmedia.com

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The new statutes will go into effect on July 27, 2019.

Major Change to Residential Landlord Tenant Law

Monday, July 15, 2019 — Lawrence S. Glosser - Ahlers Cressman & Sleight PLLC

Governor Inslee has just signed SB 5600 which results in major changes to the Residential Landlord-Tenant Act (RCW 59.18) regarding the eviction process of residential tenants. The changes do not apply to non-residential tenancies which are still governed by RCW 59.12. The new law includes additional protections for tenants and limits the ability of landlords to evict tenants or recover costs for legal proceedings. It also grants judges substantial discretion in eviction hearings whereas judges were previously bound by the express terms of the statute.

The major changes to the law are listed below:

  • A landlord must provide a tenant 14 days’ notice instead of three days’ notice in order to cure default in the payment of overdue rent. The Attorney General’s Office will create a uniform 14-day notice to pay and vacate default form.
  • Landlords must first apply any payment by a tenant to the rent amount before applying it towards other charges, including fees or other costs.
Reprinted courtesy of Lawrence S. Glosser, Ahlers Cressman & Sleight PLLC

Mr. Glosser may be contacted at larry.glosser@acslawyers.com

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USC'S LA Coliseum | $315 Million Renovation Aerial Update 7.15.19

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San Francisco bay

Sea-Level Rise isn’t the Only Factor in Bay Area’s Future Flooding Risk

Study Finds San Francisco Bay is Sinking Faster than Expected

Monday, July 15, 2019 — Alan Rider - Engineering News-Record

All coastal cities in the U.S. face some potential threat from sea-level rise, but areas around San Francisco Bay may be more vulnerable than previously thought according to a recent study by Arizona State University’s Manoochehr Shirzaei and UC Berkley’s Roland Bürgmann published in the peer-reviewed journal Science Advances.

Reprinted courtesy of Alan Rider, ENR

ENR may be contacted at ENR.com@bnpmedia.com

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Hardhat gloves measuring tape and plans resting on wooden table

from Amerisure discuss how to address labor shortage issues.

Skilled Labor Shortage Implications for Construction Companies

Monday, July 15, 2019 — Tony James & Keith Maciejewski - Construction Executive

The construction industry is facing one of the most significant labor shortages it has ever seen. This labor shortage has far-reaching implications for worker safety and construction quality—both of which could adversely impact a company’s bottom line if investments are not made to address the issue.

What’s causing the labor gap?

There are two underlying trends driving this phenomenon:

  1. More experienced workers have either not returned to the industry after the Great Recession or are now retiring as they’ve concluded their careers.
  2. The construction industry has long struggled to attract new, younger workers to the industry, and this problem has only worsened as the broader economy boomed. As a result, construction firms must compete with other industries, such as health care, technology and engineering, for young talent.

Reprinted courtesy of Tony James & Keith Maciejewski, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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Red arrow breaking through ground illustration

The Canada Mortgage and Housing Corp. reported on recent home building gains.

Housing Starts Surge 23% in Comeback for Canadian Builders

Monday, July 15, 2019 — Theophilos Argitis - Bloomberg

Canadian housing starts unexpectedly surged in April, in another sign of recovery for the nation’s battered real estate market.

Builders started work on an annualized 235,460 units last month, the highest level in 10 months and up 23 percent from 191,981 units in March, the Canada Mortgage and Housing Corp. reported Wednesday. The gain was driven by new multi-unit construction in Toronto and Vancouver.

Reprinted courtesy of Theophilos Argitis, Bloomberg
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Matthew Loos is the author of the new book, The Business of Engineering.

The Business of Engineering: An Interview with Matthew Loos

Monday, July 15, 2019 — Aarni Heiskanen - AEC Business

Matthew Loos is an experienced project manager in the civil engineering industry. He works as a project engineer at Jones|Carter in Fort Worth, Texas. In this interview, we discuss Matt’s new book, The Business of Engineering.

It is not very common that an engineer writes a non-technical book. What inspired you to do so?

Have you ever gotten an idea stuck in your head that you just couldn’t let go of? A time when you couldn’t go to sleep because the idea was consistently begging for your attention?

That’s what happened to me. The idea for this book hits me right before bed, as most good ideas do. I couldn’t go to sleep after the idea struck me. I spent half of the night writing the chapters of this book in my mind. I had been thinking about the idea of engineering and how it relates to other career fields, even the non-technical ones. I was disenchanted with the trifling number of classes I took that prepared me for the business world. These were the initial thoughts that eventually led me down the road into thinking about engineering as a profession going forward.

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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