Illinois Appellate Court Finds Insurer Estopped From Denying Coverage Where Declaratory Judgment Suit Filed Too Late

Man looking upset while looking at his watch

The underlying lawsuit concerned a claim that plaintiff’s property allegedly sustained damage when the insured performed work on the plaintiff’s residence.

August 7, 2018
TLSS Insurance Law Blog

In an unpublished opinion from the Illinois Appellate Court, Country Mutual Insurance Co. v. Badger Mutual Insurance Co., 2018 IL App (1st) 171774-U, the court held that because an insurer breached its duty to defend and failed to file a declaratory judgment action before the underlying lawsuit was resolved, it was estopped from denying coverage for the default judgment entered against its insured in the underlying lawsuit.

The underlying lawsuit concerned a claim that plaintiff’s property allegedly sustained damage when the insured performed work on the plaintiff’s residence. The complaint in the underlying lawsuit did not specifically identify when the property damage occurred. However, the complaint did state that the insurer’s investigator alerted it in 2010 that the property damage was due to the insured’s faulty work during the policy period. The insurer did not defend the insured during the action and a default judgment was entered against the insured.


Framework, Tallest Mass Timber Project in the U.S., Is On Hold

Several tree trunks

The 12-story mixed-use building, known as Framework, has been under development in Portland, Ore., since 2014.

August 7, 2018
Nadine M. Post - Engineering News-Record

The tallest mass-timber building development in the U.S. is "on hold for the foreseeable future," according to the developer, named project^. The 12-story mixed-use building, known as Framework, has been under development in Portland, Ore., since 2014. Construction was first delayed a year ago and currently is postponed because of changing market conditions, which have had a negative impact on the development's bottom line. These include inflation, escalating construction costs and fluctuations in the tax credit market, says the developer.

Ms. Post may be contacted at postn@enr.com


Second Circuit Court Differentiates the Standard for Determining Evident Partiality for a Neutral Arbitrator and a Party-Appointed Arbitrator

Two women discussing problem

The case was one of first impression for the Second Circuit on how to determine the standard of evident partiality challenged to a party-appointed arbitrator.

August 7, 2018
Celia B. Waters - Saxe Doernberger & Vita, P.C.

On June 7, 2018, the Second Circuit Court in Certain Underwriting Members of Lloyds of London v. Fla., Dep’t of Fin. Servs.,1 held that a party-appointed arbitrator should not be held to the same standard as a neutral arbitrator. The Court vacated a district court’s order vacating an arbitral award in a reinsurance dispute between Insurance Company of Americas (“ICA”) and Certain Underwriting Members of Lloyds of London (“Underwriters”). The case was one of first impression for the Second Circuit on how to determine the standard of evident partiality challenged to a party-appointed arbitrator.

Underwriters reinsured ICA under a series of treaties. The treaties each contained an arbitration clause requiring that disputes be adjudicated by an arbitration panel consisting of three members: one party-appointed arbitrator for each party, and a neutral. The clause required only that the arbitrators “be active or retired disinterested executive officers of insurance or reinsurance companies or Lloyd’s London Underwriters.”

Ms. Waters may be contacted at cbw@sdvlaw.com


Current Trends in Construction Insurance Industry

July 31, 2018
Beverley BevenFlorez-CDJ STAFF

Insurance Journal interviewed construction insurance professionals to see what’s new in the market. First, there seems to be confidence in the construction market as a whole: “It’s a healthy construction market outlook,” Danette Beck, national construction practice leader at USI, an insurance brokerage and consulting firm, told Insurance Journal. “There aren’t any projections right now that there is going to be a slowdown.” Other topics discussed include Meaningful Risk Management, Construction Utilizing Technology, and Coverage Trends.


Insurance in the Construction Industry Seminar

July 31, 2018
Beverley BevenFlorez-CDJ STAFF

This second annual seminar focuses on the following topics: ethical considerations in choosing counsel, coverage issues with respect to CGL, Builder’s Risk, OCIP and Subguard Policies, Additional Insured endorsements, and effective mediation strategies. Attendees include attorneys, contractors, and insurance professionals.

August 16th-17th, 2018
Hampton Inn & Suites – Brickell Downtown
50 SW 12th Street
Miami, FL 33130


Supreme Court of Idaho Rules That Substantial Compliance With the Notice and Opportunity to Repair Act Suffices to Bring Suit

Bookshelf full of law tomes

The court’s ruling in Davison establishes that, as long as plaintiffs satisfy the objectives of Idaho’s NORA, they fulfill its notice requirement and can proceed with a lawsuit.

July 31, 2018
Lian Skaf - The Subrogation Strategist

In Davison v. Debest Plumbing, Inc., 416 P.3d 943 (Ida. 2018), the Supreme Court of Idaho addressed the issue of whether plaintiffs who provided actual notice of a defective condition, but not written notice as stated in the Notice and Opportunity to Repair Act (NORA), Idaho Code §§ 6-2501 to 6-2504, et. seq., substantially complied with the act and if the plaintiffs’ notice was sufficient to bring suit. Section 6-2503 of the NORA states that, “[p]rior to commencing an action against a construction professional for a construction defect, the claimant shall serve written notice of claim on the construction professional. The notice of claim shall state that the claimant asserts a construction defect claim against the construction professional and shall describe the claim in reasonable detail sufficient to determine the general nature of the defect.” Any action not complying with this requirement should be dismissed without prejudice. The court held that the defendant’s actual notice of the defect was sufficient to satisfy the objectives of the NORA and, thus, the plaintiffs’ action complied with the NORA.

In Davison, Scott and Anne Davison hired general contractor Gould Custom Builders (Gould) to remodel a vacation home in McCall, Idaho. Gould subcontracted out the plumbing work to Debest Plumbing (Debest). This work included installing a bathtub. When the Davisons arrived at their home for the first time on July 25, 2013, they noticed a leak from the subject bathtub. The Davisons contacted Gould and, the next morning, Gil Gould arrived with a Debest employee to inspect the home. In addition to inspecting the home, the Debest employee repaired the leak and helped Gould remove some water-damaged material.

Mr. Skaf may be contacted at skafl@whiteandwilliams.com


Groups Ask OSHA for National Heat-Protection Standard

July 31, 2018
Tom Ichniowski – Engineering News-Record

A coalition of more than 130 groups and nearly 90 individuals is calling on the federal Occupational Safety and Health Administration to issue the first nationwide U.S. standard to protect workers in construction and all other industries against excessive heat on job sites.

Mr. Ichniowski may be contacted at ichniowskit@enr.com


Century Homebuilders to Develop Communities in Florida

July 31, 2018
Beverley BevenFlorez-CDJ STAFF

The Real Deal reported that Century Homebuilders received a “$20 million loan to build four single-family home communities in western Miami-Dade County” from Miami-based FirstBank of Florida. The 92-home construction project includes a 59 single-family home community in West Kendall, two smaller communities in Westchester, and 18 homes near Tamiami. The developer’s president and founder, Sergio Pino, stated that he is focused on purchasing land in Western Miami-Dade County.


Broker's Motion for Summary Judgment on Negligence Claim Denied

Word denied with red x in a box

Tred R. Eyerly analyzes the case Liverman Metal Recycling, Inc. v. Arthur J. Gallagher & Co.

July 30, 2018
Tred R. Eyerly - Insurance Law Hawaii

After being sued for negligence for failing to secure proper coverage, the broker was unsuccessful in seeking dismissal by way of summary judgment. Liverman Metal Recycling, Inc. v. Arthur J. Gallagher & Co., 2018 U.S. Dist. LEXIS 87957 (E.D. N.C. May 25, 2018).

Plaintiffs were two companies, Empire and Liverman, that processed scrap metal. They were in the process of merging under a management plan by which Empire would acquire Liverman. As part of the plan, Empire's employees were moved on to Liverman's payroll processing system. Concurrently, Liverman renewed its workmen's compensation policy. Defendant Arthur J. Gallagher & Company, an insurance broker, handled the renewal with the insurer, Bridgefield Insurance Company.

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


The ALI Restatement – What Lies Ahead?

Businessman with hands shaped like the sloping roof of house

On June 28, 2018, White and Williams LLP hosted a seminar about the ALI Restatement, chaired by the Reporter for the Restatement, University of Pennsylvania Law Professor Tom Baker, and Randy Maniloff of White and Williams.

July 30, 2018
Adam M. Berardi & Sara C. Tilitz - Complex Insurance Coverage Reporter

The American Law Institute voted on May 22, 2018 to approve the final draft of its “Restatement of the Law of Liability Insurance.” This was the culmination of an eight-year project that evolved through 29 drafts resulting in a nearly 500-page final product. At least nine courts cited to the Restatement while it was still in draft form. On June 28, 2018, White and Williams LLP had the privilege of hosting a seminar about the Restatement, chaired by the Reporter for the Restatement, University of Pennsylvania Law Professor Tom Baker, and Randy Maniloff of White and Williams, author of “General Liability Insurance Coverage, Key Issues In Every State.” The seminar was geared toward assisting members of the liability insurance community in navigating the key provisions of the Restatement, including how they compare and contrast with existing case law and the role the Restatement may play in courts’ decision-making processes going forward.

Reprinted courtesy of Adam M. Berardi , White and Williams, LLP and Sara C. Tilitz, White and Williams, LLP
Mr. Berardi  may be contacted at berardia@whiteandwilliams.com
Ms. Tilitz may be contacted at tilitzs@whiteandwilliams.com


Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?

Blurred view of driving fast on city street

The unusual fact-pattern in Miller provided a unique opportunity to explore the effects of acceleration and deacceleration of a note.

July 30, 2018
Ben Reeves - Snell & Wilmer Real Estate Litigation Blog

Introduction

Lenders routinely accelerate notes after a default occurs, calling the entire loan due immediately. Less regularly, a lender may change its mind and unilaterally revoke the acceleration. Rarely, however, does a lender fail to foreclose on its real property collateral before the statute of limitations expires. In Andra R. Miller Designs, LLC v. U.S. Bank, N.A., 244 Ariz. 265, 418 P.3d 1038 (Ct. App. 2018), a unique set of facts involving these issues led the Arizona Court of Appeals to hold that proper revocation of acceleration resets the statute of limitations.

The Facts

In Miller, a lender made a $1,940,000 loan evidenced by a promissory note and secured by a deed of trust against a home in Paradise Valley, Arizona. The borrower defaulted in September 2008. The default prompted the lender to notice a default, accelerate the note, and initiate a trustee’s sale of the home in 2009. After the lender accelerated the note, the six year statute of limitations began to run. See A.R.S. § 12-548(A)(1) and A.R.S. § 33-816. Pretty standard facts so far, right? Don’t worry, it gets a bit more convoluted.

Mr. Reeves may be contacted at breeves@swlaw.com


Insurance for Large Construction Equipment Such as a Crane

Crane against dark blue sky

David Adelstein discusses insurance coverage for large construction equipment.

July 30, 2018
David Adelstein - Florida Construction Legal Updates

Many, many projects require the use of a crane. The skyline is oftentimes filled with the sight of cranes—one after the other. Most of the time, the cranes are leased from an equipment supplier. What happens if the crane (or any large, leased equipment) gets damaged?

I wrote an article regarding a builder’s risk carrier NOT covering damage to a crane from a storm based on a common exclusion. Another case, Ajax Bldg. Corp. v. Hartford Fire Ins. Co., 358 F.3d 795 (11th Cir. 2004), had a similar result.

In this case, a prime contractor leased a crane from an equipment supplier. The crane was used by the structural concrete subcontractor. The crane collapsed during the subcontractor’s work. The supplier sued both the contractor and subcontractor. The prime contractor was defended under a contractor’s equipment liability policy and the subcontractor was defended under a general liability policy it procured for its work on the project. Ultimately, a settlement was reached where the subcontractor’s liability insurer paid a bulk of the damage.

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


Wendel Rosen Construction Attorneys Recognized by Super Lawyers

Businessman in superhero cape running with laptop

The firm of Wendel, Rosen, Black & Dean LLP had 26 attorneys selected as either 2018 Northern California Super Lawyers or Rising Stars by Thompson Reuters.

July 30, 2018
Garret Murai - California Construction Law Blog

Wendel Rosen Construction Practice Group Co-Chairs, Garret Murai and Quinlan Tom, have been selected for inclusion as 2018 Northern California Super Lawyers in the area of Construction Litigation. Murai and Tom are among 26 other attorneys at the firm who were selected as either 2018 Northern California Super Lawyers or Rising Stars by Thompson Reuters.

Mr. Murai may be contacted at gmurai@wendel.com


Administrative and Environmental Law Cases Decided During the U.S. Supreme Court’s 2017-2018 Term

Earth on grass

Anthony B. Cavender and Amy L. Pierce cover recent environmental and administrative supreme court cases.

July 28, 2018
Anthony B. Cavender & Amy L. Pierce - Gravel2Gavel

Unlike other Terms, only a handful of cases addressed administrative and environmental law issues in the U.S. Supreme Court’s 2017-2018 Term. However, the next Term of the Court promises to be more active in these areas.

  • On January 22, 2018, the Court issued a unanimous opinion in the Clean Water Act (CWA) case, Nat’l Assoc. of Mfrs. v. Dep’t of Defense, holding that the plain language of the CWA requires the appeal of the Environmental Protection Agency’s (EPA) redefinition of “waters of the United States” (WOTUS Rule) must be heard first in the federal district courts. Whereas all appeals of most EPA CWA effluent limitation rules must be heard in the federal Courts of Appeals, Congress chose not to do this with respect to this definitional rule.

    The Court points out that reviews in the Courts of Appeals must take place within 120 days of the rule’s promulgation, but any review of a rule in the federal district court must take place within 6 years of the date the claim accrues.

Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman and Amy L. Pierce, Pillsbury Winthrop Shaw Pittman
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com
Ms. Pierce may be contacted at amy.pierce@pillsburylaw.com


Speeding up Infrastructure Projects with the Cloud

Clouds over blue sky

Infrakit was founded in 2010 and has since grown at an annual rate of 70 percent.

July 28, 2018
Aarni Heiskanen - AEC Business

Infrakit, a cloud service developed by a Finnish startup company, is accelerating infrastructure projects both in Finland and, increasingly, abroad. Automatic transfer of information among parties involved in a project saves time, reduces paperwork, and facilitates the work of land surveyors. In addition to excavators, rock drills can now also be viewed on the map.

The CEO and founder of DSC Finland, the supplier of Infrakit, is Teemu Kivimäki. He states that despite the name of the company changing over the years, its principles have stayed the same. Kivimäki describes the functions of the service: “The digital site plans are added to Infrakit, and they can then be viewed on a map and in a 3D view with a browser. When the working machines are also linked to the service, the user can see if the work has been executed according to plan.”

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


Jinx: Third Circuit Rules in Favor of Teamsters in Withdrawal Case

Four business people around computers looking shocked

Wally Zimolong discusses a federal case that shows the dark side of not reading and understanding your CBA.

July 28, 2018
Wally Zimolong - Supplemental Conditions

Bad omen. Last week, I wrote about a Appeals Court decision that affirmed a contractor’s escape from an over $600,000 withdrawal liability assessment from the Laborers Union. The next day the Third Circuit (which covers PA, NJ, and DE) handed down a decision affirming a federal court’s decision to assess withdraw liability. This one shows the dark side of not reading and understanding your CBA.

The belligerents in the litigation were, Penn Jersey, a construction material supplier, and Teamsters Local 676. Their collective bargaining agreement contained a clause purportedly covering withdrawal liability. Specifically, the clause stated “should the Employer withdraw from the Agreement in the future, there will be no withdrawal liability. The CBA expired and Penn Jersey did not renew its agreement with the Teamsters.

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


Three Firm Members Are Top 100 Super Lawyers & Ten Are Recognized As Super Lawyers Or Rising Stars In 2018

Gold stars and white circles over a black background

Well over half of the Ahlers Cressman & Sleight firm’s lawyers received Super Lawyers distinction.

July 28, 2018
Scott MacDonald - Ahlers Cressman & Sleight PLLC

With the Fourth of July festivities still ringing in our collective ears, we are having our own celebration at Ahlers Cressman & Sleight PLLC. We avoid using this blog as a platform for self-promotion as we want to keep relevant construction industry news and notes hitting your inboxes. Longtime readers will know, however, that we make an exception to recognize the Super Lawyers of the firm, who are each humbled to receive this peer-voted award. We also share this news in recognition of our clients and industry-partners who have put their trust and confidence in us. Without these relationships, these industry acknowledgments would have no significance.

Super Lawyers is a wholly independent company that identifies outstanding lawyers in the profession. It selects attorneys using a patented multiphase selection process based on legal excellence, industry involvement, and civic leadership. Super Lawyers’ initial pool of candidates is based on peer nominations and evaluations from outside the firm, which is then combined with Super Lawyers’ own third-party research. Only five percent of all lawyers in Washington State are selected for the honor of Super Lawyers and no more than 2.5 percent are selected for the honor of Super Lawyers Rising Stars. What makes this award meaningful is it is based upon evaluation of individual merit—as opposed to a “pay-to-win” award.

John P. Ahlers, one of the firm’s founding partners, is again recognized as one of the 10-Best Lawyers in the State of Washington across all practicing industries.

Founding partner Paul R. Cressman, Jr. and partner Brett M. Hill are also recognized as two of the 100-Best Lawyers across all practicing industries in Washington State.

In addition, three other firm members are also recognized as Super Lawyers: Founding partner Scott R. Sleight, Bruce A. Cohen (of counsel), and Lawrence S. Glosser (partner). In addition, Ryan W. Sternoff (partner), Lindsay (Taft) Watkins (partner), Ceslie A. Blass (associate), and Scott D. MacDonald (associate) were selected as Super Lawyers Rising Stars. Well over half of the firm’s lawyers received Super Lawyers distinction.

Mr. MacDonald may be contacted at scott.macdonald@acslawyers.com


U.S. Homeowners Are Lingering Longer, and the Wait Is Paying Off

Homeowners getting key from construction worker

Second-quarter sellers recorded gains averaging $58,000 -- the most since the third quarter of 2007.

July 28, 2018
Jeremy Hill - Bloomberg

Homeowners in the U.S. are holding on to their houses longer than they have in at least 18 years, and when they do sell, they’re reaping gains that haven’t been seen since before the housing crisis.

Those who sold in the second quarter did so after owning their homes for an average of 8.09 years, the longest stretch since Attom Data Solutions started tracking the statistic in 2000. The wait appears to be paying off: Second-quarter sellers recorded gains averaging $58,000 -- the most since the third quarter of 2007.


7 Ways Technology is Changing Construction (guest post)

Finger on Technology

Guest blogger Eric Weisbrot discusses several ways technology is changing construction on a day to day basis.

July 28, 2018
Melissa Dewey Brumback - Construction Law in North Carolina

Today, we have a guest post by Eric Weisbrot, Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog. Welcome, Eric!

It is difficult to argue that technology is having minimal impact on society as a whole. Not only are digital enhancements making waves on the consumer side of the line, but businesses are feeling the effects as much if not more in recent years. The construction industry is no exception to this technological shift, but the influence the change is having on licensed construction contractors and long-standing businesses is far-reaching. Here are several ways technology is disrupting construction on a day to day basis.

#1. Autonomous Equipment. One of the most notable changes in construction is the addition of autonomous equipment on job sites. Several technology-focused companies are currently testing and perfecting construction machines that require no human interaction to operate. The hope behind this shift is to reduce the impact of the labor shortage in the industry while improving efficiency and productivity on each job.

Ms. Brumback may be contacted at mbrumback@rl-law.com


Sometimes You Get Away with Unwritten Contracts. . .

Two people shaking hands

In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts.

July 28, 2018
Christopher G. Hill - Construction Law Musings

I have spoken often regarding the need for a well written construction contract that sets out the “terms of engagement” for your construction project. A written construction contract sets expectations and allows the parties to the contract to determine the “law” of their project. An unwritten “gentleman’s agreement” can lead to confusion, faulty memories, and more money paid to construction counsel than you would like as we lawyers play around in the grey areas.

One other area where the written versus unwritten distinction makes a difference is in the calculation of the statute of limitations. In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts. This distinction came into stark relief in the case of M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court. In M&C Hauling, M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited in 2014, the last of which was in July. M&C provided over 2000 hours of hauling and provided time tickets (that were passed to Mr. Hale on Hauling Unlimited letterhead and signed by Mr. Hale or his agent) and an invoice stating the price term of $75.00 per hour. No separate written contract between M&C and Hauling Unlimited or Mr. Hale existed.

Mr. Hill may be contacted at chrisghill@constructionlawva.com



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