Hunton Insurance Partner Syed Ahmad Named to Benchmark Litigation’s 2019 40 & Under Hot List

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Syed Ahmad is listed on Benchmark Litigation's 40 & Under Hot List.

October 14, 2019
Michael S. Levine & David M. Costello - Hunton Insurance Recovery Blog

Benchmark Litigation has named Syed Ahmad, a partner in Hunton Andrews Kurth’s Insurance Coverage practice, to the publication’s 40 & Under Hot List. Benchmark Litigation is the definitive guide to America’s leading litigation firms and attorneys. The 40 & Under Hot List honors the most notable up-and-coming litigation attorneys in the United States. Those named to the list have proven their eligibility as individuals at the partner level of their respective firms who are 40 years of age or younger.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and David Costello, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com


Insurer Must Cover Portions of Arbitration Award

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Tred R. Eyerly analyzes the case Liberty Surplus Ins. Corp. v. Century Sur. Co.

October 14, 2019
Tred R. Eyerly - Insurance Law Hawaii

The court determined that there was coverage in a construction defect case for portions of an arbitration award. Liberty Surplus Ins. Corp. v. Century Sur. Co., 2019 U.S. DIst. LEXIS 116093 (S.D. Texas July 12, 2019).

Descon Construction contracted with the City of Edinburg, Texas, to build a library. Descon subcontracted with McAllen Steel Erectors to install the library metal roof. The roof began to leak within two months of occupancy. The leaks continued for seven years.

Edinburg sued Descon. The matter was arbitrated. The arbitration panel found that the library roof was defective, the exterior stucco system was defectively installed and certain work, including fire-caulking, had not been performed. The panel concluded that Descon was liable for breach of contract and breach of warranty. The panel determined that Edinburg was entitled to replacement of the existing roof. Further, McAllen was found to have breached its subcontract with Descon by defectively installing the roof, entitling Descon to recover $762,537 from McAllen.

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


With VA Mechanic’s Liens Sometimes “Substantial Compliance” is Enough (but don’t count on it) [UPDATE]

Businessman in doorway of elevator darkened room

A recent opinion may provide a “safe harbor” from the form over function nature of a mechanic’s lien.

October 14, 2019
Christopher G. Hill - Construction Law Musings

Virginia mechanic’s liens are a powerful and tricky beast that in most cases require absolute precision in their preparation. However, an interesting opinion recently came out of the Virginia Supreme Court that may provide a bit of a “safe harbor” from the total form over function nature of a mechanic’s lien.

In Desai, Executrix v. A.R. Design Group Inc., the Court considered a lien memorandum that had what could be described as technical flaws in the preparation of the mechanic’s lien by A. R. Design Group. The basic facts are that A. R. Design Group used the form of lien found in Va. Code Sec. 43-5 (also found as Form CC-1512 at the Virginia Judiciary website) when it recorded two lien memoranda for two pieces of property owned by a trust. Relating to one of the two properties, the memorandum failed to identify the “Owner” as the trustee of the trust. On the memoranda relating to both properties the affidavit verifying the amounts claimed did not identify the signatory as agent for A. R. Design Group, instead listing the agent as the claimant and further failed to state a date from which interest is claimed or a date on which the debt was due.

Needless to say, the owner argued that each of these technical defects invalidated the memoranda and therefore they should have been released. Somewhat surprisingly the Fairfax, Virginia Circuit Court disagreed and held the liens to be valid. On appeal, the Virginia Supreme Court affirmed the lower court. The held that the failure to add the word “Trustee” after Ulka Desai’s name did not invalidate the lien because the trustee had all of the rights of ownership and furthermore that naming Desai in the memorandum served the purpose of putting third parties on notice of the lien.

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


California Supreme Court Finds that the Notice-Prejudice Rule Applicable to Insurance is a Fundamental Public Policy of the State

Law books on shelf

Christopher Kendrick and Valerie A. Moore discuss Pitzer College v. Indian Harbor Ins. Co.

October 14, 2019
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP

In Pitzer College v. Indian Harbor Ins. Co. (No. S239510, filed 8/29/19), the California Supreme Court held that California’s notice-prejudice rule is a fundamental public policy in the insurance context, supporting the application of California law under a choice of laws analysis. In addition, the Court held that the rule generally applies to consent (aka “no voluntary payments”) provisions in first party insurance policies but not to consent provisions in third party liability policies.

Pitzer College discovered soils contamination while building a new dormitory. Under pressure to complete construction before the start of the school year, Pitzer proceeded to remediate the soils, incurring $2 million in expense. Pitzer submitted a claim to Indian Harbor, which provided Pitzer insurance covering legal and remediation expenses resulting from pollution conditions discovered during the policy period.

The policy contained a notice provision requiring Pitzer to provide oral or written notice of any pollution condition to Indian Harbor and, in the event of oral notice, to “furnish … a written report as soon as practicable.” In addition, a consent provision required Pitzer to obtain Indian Harbor’s written consent before incurring expenses, making payments, assuming obligations, and/or commencing remediation due to a pollution condition. The consent provision had an emergency exception for costs incurred “on an emergency basis where any delay … would cause injury to persons or damage to property or increase significantly the cost of responding to any [pollution condition],” in which case Pitzer was required to notify Indian Harbor “immediately thereafter.” Lastly, a choice of law provision stated that New York law governed all matters arising under the policy.

Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com


Haight Welcomes New Attorneys to Los Angeles, Sacramento and San Francisco

California palm trees over sunset

Haight Brown & Bonesteel is happy to announce the addition of six new attorneys.

October 7, 2019
Haight Brown & Bonesteel

Haight Brown & Bonesteel is happy to announce the addition of new attorneys to our Los Angeles, Sacramento and San Francisco offices.

  • Alexandra Angel – Los Angeles: Alexandra is a member of the firm’s Business Solutions, General Liability and Transportation Law Practice Groups. Her practice focuses on a variety of civil litigation matters involving premises liability, personal injury, judgment collection, breach of contract, and landlord-tenant. Her clients have included individual private clients, international property management companies, national and local real estate investment companies, a large car finance company, and local businesses.
  • Josh Maltzer – San Francisco: Josh is a partner in the firm’s Construction Law, General Liability and Risk Management & Insurance Law Practice Groups. He is a seasoned civil litigator who focuses his practice on construction defect, general liability and insurance coverage. Josh is an experienced trial attorney who has litigated matters in state and federal courts throughout California and in Arizona, Washington and Wyoming. He has represented business owners, property managers, developers, real estate purchasers and public housing agencies in matters that resulted in millions of dollars in insurance recovers, judgments and settlements for his client.

Reprinted courtesy of Haight Brown & Bonesteel attorneys Alexandra Angel, Josh A. Maltzer, Philip E. McDermott, Patrick F. McIntyre, Evan M. Reese, and Amanda F. Riley
Ms. Angel may be contacted at aangel@hbblaw.com
Mr. Maltzer may be contacted at jmaltzer@hbblaw.com
Mr. McDermott may be contacted at pmcdermott@hbblaw.com
Mr. McIntyre may be contacted at pmcintyre@hbblaw.com
Mr. Reese may be contacted at ereese@hbblaw.com
Ms. Riley may be contacted at ariley@hbblaw.com


Florida Adopts Daubert Standard for Expert Testimony

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Florida’s high court did an about-face.

October 7, 2019
Michael L. DeBona - The Subrogation Strategist

Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.

The Daubert standard comes from the case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), which held that the longstanding Frye test[1] for admitting expert testimony was superseded by Rule 702 of the Federal Rules of Evidence. Daubert instructed that federal judges should act as “gatekeepers” to ensure expert testimony is rooted in scientifically valid principles and that those principles are properly applied to the facts at issue. In determining whether scientific evidence should be admitted, Daubert sets forth several factors to consider: the testability of the theory or technique; the peer review and publication of the theory or technique; the error rate for the technique; the standards controlling the technique’s operation; and the general acceptance of the theory or technique.[2] The Daubert standard is generally considered a more onerous test than Frye, precluding expert testimony that might otherwise go to the jury under Frye.[3] Whereas Frye is a single factor test that applies only to new or novel science, Daubert is a multifactor test that applies to all expert testimony.

Since Daubert, a growing number of states have moved away from the Frye test in favor of the Daubert standard; it is now followed by a majority of jurisdictions in the country. In 2013, the Florida State legislature attempted to move Florida in this direction by amending the Florida Evidence Code to codify the Daubert standard. But because the Florida Supreme Court is vested with the power to make procedural rules and it was unclear whether the Daubert standard was a procedural or substantive rule, it was uncertain whether the 2013 Daubert amendments were controlling law. Then in 2017, in In Re: Amendment to the Florida Evidence Code, No. SC16-181, the Florida Supreme Court expressly declined adopting the Daubert amendments to the extent they were procedural. This decision signaled that, if faced with the Daubert standard on appeal from a litigated case, the Florida Supreme Court would reaffirm that Frye – not Daubert – controlled the admissibility of expert testimony in Florida state courts.

Mr. DeBona may be contacted at debonam@whiteandwilliams.com


Best Lawyers® Recognizes 29 White and Williams Lawyers

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The Best Lawyers in America© 2020 recognized twenty-nine White and Williams lawyers.

October 7, 2019
White and Williams LLP

Twenty-nine White and Williams lawyers were recognized in The Best Lawyers in America© 2020. Inclusion in Best Lawyers® is based entirely on peer-review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers® employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of quality legal services.

In addition, Randy Maniloff was named the Best Lawyers® 2020 Insurance Law "Lawyer of the Year" in Philadelphia.


Insurer Not Entitled to Summary Judgment on Construction Defect, Bad Faith Claims

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The federal district court denied the insurer's motion for summary judgment.

October 7, 2019
Tred R. Eyerly - Insurance Law Hawaii

The federal district court denied the insurer's motion for summary judgment seeking to establish there was no coverage for construction defect claims and for bad faith. Country Mut. Ins. Co. v. AAA Constr. LLC, 2019 U.S. Dist. LEXIS 115935 (W.D. Okla. July 12, 2019).

Jeffrey and Tammy Shaver entered two contracts with AAA Construction for the construction of a garage and of a barn on their property. After construction was completed, the Shavers sued AAA Construction for building the garage over two high-pressure gas pipelines and the utility easements associated with them. They alleged AAA Construction was negligent for constructing over a working utility line. AAA Construction's insurer, Country Mutual Insurance Company (CMIC) denied coverage because the alleged faulty workmanship of AAA Construction did not constitute an "occurrence" under the policy.

CMIC sued AAA Construction for a declaratory judgment that it had no duty to defend or indemnify. CMIC moved for summary judgment.

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


Georgia Court of Appeals Holds That Insurer Must Defend Oil Company Against Entire Lawsuit

Businessman in suit and red cape in superman pose

The Georgia Court of Appeals affirmed a judgment in favor of Mountain Express Oil Company on its breach of contract claim.

October 7, 2019
Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth

The Georgia Court of Appeals recently affirmed a grant of summary judgment in favor of Mountain Express Oil Company on its breach of contract claim against liability insurer, Southern Trust Insurance Company. Empire Petroleum brought claims against Mountain Express for breach of contract, injunctive relief, and libel or slander, among others. Mountain Express sought a defense to that lawsuit under its insurance policy with Southern Trust. Southern Trust contended that the insurance policy did not cover Empire’s non-libel/slander claims, and therefore reimbursed Mountain Express for only a portion of its attorneys’ fees. After the Empire lawsuit settled, Mountain Express sued Southern Trust for breach of contract and bad faith for failing to pay the remaining defense costs, contending that Southern Trust had a duty to defend the entire lawsuit.

The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to Mountain Express on its breach of contract claim. Citing policy language stating that “[the insurer] will have the right and duty to defend the insured against any ‘suit’ seeking those damages,” the court held that Southern Trust was obligated to defend the entire lawsuit. Specifically, in reaching that conclusion, the court noted that by agreeing to defend any “suit,” not any “claim,” Southern Trust obligated itself to defend the entire lawsuit if any claim could be covered under the policy. Accordingly, Southern Trust breached the policy when it only agreed to defend some of the claims against its insured.

Reprinted courtesy of Lawrence J. Bracken II, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com


Building a Case: Document Management for Construction Litigation

Report on typewriter

ESI has facilitated a dramatic increase in the volume of records associated with construction projects.

October 7, 2019
Robert A. Gallagher, Jane Fox Lehman, & Michael I. Frankel, Pepper Hamilton LLP - ConsensusDocs

Success in construction litigation often turns less on counsel’s ability to craft legal arguments and more on counsel’s ability to gather, master and present the often complex set of facts underlying the case. In construction matters, most of the key facts are found in documents: contract documents, drawings, plans and specifications, schedules, submittals, progress reports, daily logs, change orders, invoices and payment records. Nowadays, these documents will almost certainly be created, exchanged and stored electronically; many will never exist in hard copy. As such, timely collection, organization and analysis of electronically stored information (ESI) is crucially important in construction litigation.

The construction industry has always involved a large quantity of records. Today, the majority of those records exist only as ESI: Design professionals use computer-aided design (CAD) software to create construction plans. Construction managers use Primavera or similar software to create schedules and workflows. Estimators use job cost control programs. Innovative firms capture digital photos of the project, from mobilization through the punch process.

Because ESI is created and exchanged at a higher rate than hard-copy documents, ESI has facilitated a dramatic increase in the volume of records associated with construction projects. Further compounding the increase is the proliferation of mobile devices. With a smartphone in every pocket, ESI creation has moved out of the home office and the site trailer and onto the site itself. As the volume of ESI expands, so too does the time and expense associated with storing, processing, reviewing and producing these records. This article will cover strategies for balancing time and expense with the requirements of the rules and the needs of the case.

Reprinted courtesy of Pepper Hamilton LLP attorneys Robert A. Gallagher, Jane Fox Lehman and Michael I. Frankel
Mr. Gallagher may be contacted at gallagherr@pepperlaw.com
Ms. Lehman may be contacted at lehmanj@pepperlaw.com
Mr. Frankel may be contacted at frankelm@pepperlaw.com


Regional Builders Grow Revenue At A Steady Pace

October 7, 2019
Justin Rice - Engineering News-Record

Thanks to solid strength in the regional market, the 70 firms participating in this year’s ENR MidAtlantic Top Contractor survey posted a combined $27.7 billion in revenue from work performed and billed in 2018. That represents a 6% gain over the amount reported by a slightly different lineup of 70 firms in last year’s ranking from projects in Delaware, Maryland, Pennsylvania, Virginia, West Virginia and the District of Columbia.

Mr. Rice may be contacted at ricej@enr.com


One Way Arbitration Provisions are Enforceable in Virginia

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Christopher G. Hill analyzes the case United States ex rel. Harbor Constr. Co. v. T.H.R. Enters.

October 7, 2019
Christopher G. Hill - Construction Law Musings

Here at Construction Law Musings, I’ve discussed arbitration clauses (pros and cons) as well as the fact that in our fair Commonwealth, contracts are enforced as written (for better or worse). A case out of the Eastern District of Virginia takes both of these observations and uses them to make it’s decision.

In United States ex rel. Harbor Constr. Co. v. T.H.R. Enters., the Newport News Division of the Eastern District of Virginia federal court considered the following provision and it’s enforceability:

At CONTRACTOR’s sole election, any and all disputes arising in any way or related in any way or manner to this Agreement may be decided by mediation, arbitration or other alternative dispute resolution proceedings as chosen by CONTRACTOR…. The remedy shall be SUBCONTRACTOR’s sole and exclusive remedy in lieu of any claim against CONTRACTOR’s bonding company pursuant to the terms of any bond or any other procedure or law, regardless of the outcome of the claim. The parties further agree that all disputes under this Subcontract shall be determined and interpreted pursuant to the laws of the Commonwealth of Virginia….

This provision was the crux of the argument made by T. H. R., the Defendant, in making a motion to dismiss or stay the lawsuit for payment filed by Harbor Construction. As background, Harbor Construction contracted with T. H. R. to perform work at Langley Air Force Base. Alleging non-payment of approximately $250,000.00, Harbor filed a complaint with three counts, one under the Federal Miller Act, one for breach of contract, and a third for unjust enrichment.

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


World’s Biggest Crane Gets to Work at British Nuclear Plant

Crane over dark blue sky

“Big Carl” has taken three months to assemble.

October 7, 2019
Jeremy Hodges - Bloomberg

The world’s largest crane is getting ready to hoist more than 700 of the heaviest pieces of the first new nuclear plant being built in Britain in decades.

The machine, affectionately known as “Big Carl” after an executive at Belgian owner Sarens NV, is in place at Electricite de France SA’s 19.6 billion-pound ($24.1 billion) Hinkley Point C project in southwest England. It can carry as much as 5,000 tons, or the same weight as 1,600 cars, in a single lift and arrived on 280 truck loads from Belgium. It has taken about three months to build.

Nuclear power makes up about a fifth of Britain’s electricity. Most of those plants are near the end of their lives and will close in the next decade. Replacing them won’t be easy—as the scale of the project shows.

Earlier this year, EDF poured 9,000 cubic meters of cement, the biggest single biggest pour of concrete ever recorded in Britain. It was reinforced by 5,000 tons of steel built into a nest 4 meters high that’ll serve as the base of the first new reactor in the U.K. since 1995.


A How-to Guide for Recruiting Millennials to Construction

October 7, 2019
Darren Bounds - Construction Executive

Millennials are slowly taking over the workforce as baby boomers are exiting. By 2024, it is projected that three in four U.S. workers will be millennials. This is particularly impacting the construction industry, with more than 40% of the current construction workforce likely to be retired by 2031. This change is creating a labor gap that must be filled, but the problem is attracting millennial workers to the industry.

The rising workforce is quite different in comparison to its predecessor. The priorities have shifted. Millennials are after benefits and perks rather than pay, so much so that more than 80% of millennials would change jobs to obtain better benefits, and nearly 90% would pass up a pay raise in favor of benefits and perks.

Millennials will require a different approach to recruit, but it isn’t impossible. Below are a few steps contractors can take to attract them to their teams.

Reprinted courtesy of Darren Bounds, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Professor Stempel's Excpert Testimony for Insurer Excluded

Two stick figures teaching

Adell's motion to exclude his testimony was granted.

October 7, 2019
Tred R. Eyerly - Insurance Law Hawaii

The court denied Daubert motions for several experts with the exception of Professor Stempel's expert testimony opining that the insurer did not act in bad faith Adell Plastics, Inc. v. Mt. Hawley Ins. Co., 2019 U.S. Dist. LEXIS 102942 (D. Md. June 19, 2019).

A fire demolished several buildings at Adell's facility. Adell was insured under a commercial property policy issued by Mt. Hawley. Mt. Hawley sued Adell, seeking a declaration that it owed no coverage, and requesting recoupment of a substantial advance payment. Adell filed a counterclaim, alleging that Mt. Hawley had breached the policy and had acted with a lack of good faith. Before the court were several pretrial motions, including motions to exclude testimony of eight expert witnesses.

The court denied Adell's motion to exclude several experts to be called by Mt. Hawley. The accountant's testimony was relevant. Adell had to prove damages on its breach of contract claim, and the accountant's testimony would aid the jury in evaluating Adell's documentation and calculating documented damages. Mt. Hawley's fire safety expert investigated the Adell fire. Mt. Hawley had shown that his expert opinion would be sufficiently reliable for admissibility. Further, three fire protection engineers offered by Mt. Hawley and two fire protection engineers to be called by Adell were allowed to testify. Each expert based his investigation and conclusions on the standards of fire investigation as set out in the NEPA Guide for Fire and Explosion Investigations. This was a fire insurance case, and fire protection engineers would be allowed to testify and illuminate the circumstances of the fire.

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


3D Printing Innovations Enhance Building Safety

3D keyboard

In recent years the 3D technology has given way to a slight impatience.

October 7, 2019
Mahmut Ekenel & Melissa Sanchez - Construction Executive

The mention of 3D printing alone is enough to get people excited, often conjuring images of a desktop console that can download and create three dimensional objects such as prototypes, or mechanical parts. And yet, in recent years the technology has given way to a slight impatience, as people begin to wonder how and when it will have a direct impact on both their lifestyles and their businesses.

The construction industry has been quick to take advantage of these innovations, and the effects are tangible, especially regarding building safety. The 3D construction technology allows for several key advantages in terms of faster construction times, uncompromised quality of construction and lower costs—allowing for affordable dwellings to be quickly built for people in need.

These advantages also lead to safety improvements during the building process. The ability to accelerate construction time without requiring an increase in labor results in a fewer construction-related workplace injuries and a reduction in material waste, making it an environmentally friendly construction method as well.

ICC-Evaluation Service (ICC-ES), a subsidiary of the International Code Council (ICC) which develops model codes and standards (i.e. International Building Code, International Residential Code) and delivers a wide array of building safety services, has taken the lead on developing acceptance criteria to address building code compliance of 3D printed construction. Currently, 3D construction technology is not within the provisions of the International Building Code (IBC) or International Residential Code (IRC). The acceptance criteria introduces new compliance measures for interior and exterior 3D printed concrete walls (with and without structural steel reinforcement), load-bearing and non-load-bearing walls, and shear walls in one-story, single-unit, residential dwellings. The 3D walls are constructed by printing two outer layers of 3D concrete and then filling the core with 3D concrete to form a solid wall.

Reprinted courtesy of Mahmut Ekenel & Melissa Sanchez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Ekenel may be contacted at mekenel@icc-es.org
Ms. Sanchez may be contacted at msanchez@icc-es.org


Legionnaires’ Outbreak Raises Significant Insurance Issues

October 7, 2019
Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth

A recent outbreak of Legionnaires’ Disease has been traced to a Sheraton hotel in Atlanta, Georgia. According to the Georgia Department of Public Health, 11 cases are confirmed and 55 more cases are “probable.” The Atlanta Sheraton closed on July 15 to investigate the outbreak. The closure is certain to result in a substantial immediate loss of revenue for the property. The closure and loss of advanced reservations also will likely result in an extended interruption of hotel revenue. Add to that potential stigma-related losses that will result from those afraid to reenter the property after the hotel reopens. Sheraton will likely turn to its insurers to seek payment for its business interruption costs.

Reprinted courtesy of Lawrence J. Bracken II, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com


Sweet News for Yum Yum Donuts: Lost Goodwill is Not an All or Nothing Proposition

Bakery owners in back of counter

Yum Yum Donuts operated a shop in LA that was subject to eminent domain by the LA MTA.

October 7, 2019
Josh Cohen - California Construction Law Blog

Last month a California Court of Appeals clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, to be entitled to a trial on the amount of goodwill lost.

Yum Yum Donuts operated a shop in Los Angeles that was subject to eminent domain by the Los Angeles Metropolitan Transportation Authority (MTA) to make way for light railway track. At trial, Yum Yum sought loss of goodwill as part of its condemnation damages under Code of Civil Procedure section 1263.510.

At trial the MTA’s expert testified that Yum Yum could have reduced its goodwill loss if it relocated to one of three alternative locations rather than simply closing the shop. But the expert conceded that even if Yum Yum had relocated, it would have lost some goodwill. Yum Yum refused to relocate, arguing that its relocation costs would render the move unprofitable. The trial court found that Yum Yum’s failure to mitigate its damages barred Yum Yum from having a jury trial to recover any goodwill damages.

Mr. Cohen may be contacted at jcohen@wendel.com


Crane Firm Pulled Off NYC Projects Following Multiple Incidents

Construction workers in front of crane

DOB said that all work would be halted on jobsites with the company’s equipment.

October 7, 2019
Jeff Rubenstone - Engineering News-Record

Following a partial crane collapse at a site on Manhattan’s Lower East Side and a fatality in April on a jobsite in lower Manhattan, the New York City Dept. of Buildings announced on Aug. 12 that it is suspending United Crane & Rigging’s work on 21 construction sites across the city.

Jeff Rubenstone, Engineering News-Record

Mr. Rubenstone may be contacted at rubenstonej@enr.com


AGC's Surety Bonding And Construction Risk Management Conference

October 7, 2019
Beverley BevenFlorez – CDJ Staff

This annual Associated General Contractors of America (AGC) conference will include “four plenary sessions and twenty breakout sessions on a total of sixteen topics (some breakouts will repeat). Also included in the schedule of events are two receptions, two breakfasts, one lunch and a total of six breaks.” The seminar is relevant for the following attendees: “the senior executives of the construction companies in the AGC family and particularly the in-house lawyers and risk managers for those companies. In addition, it includes the sureties, bond producers, insurance carriers, insurance brokers, lawyers and other professionals on whom such executives continue to depend for advice and assistance.”

January 27th-29th, 2020
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5001 Coconut Road
Bonita Springs, FL 34134



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