Mortgage Rates in U.S. Slide Back Below 3% for 30-Year Loans

September 7, 2020
Craig Giammona - Bloomberg

Mortgage rates have once again dipped below 3%.

The average for a 30-year fixed loan was 2.99%, just off the record low set two weeks ago, Freddie Mac said in a statement Thursday. Rates had ticked up to 3.01% last week.


Coverage for Faulty Workmanship Denied

Glasses lying on Insurance Coverage document

Attorney Tred R. Eyerly discusses HT Services, LLC v. Western Heritage Ins. Co.

September 7, 2020
Tred R. Eyerly - Insurance Law Hawaii

The court found that the insurer had no duty to defend claims against the insured for faulty workmanship. HT Services, LLC v. Western Heritage Ins. Co., 2020 U.S. Dist. LEXIS 123664 (D. Colo. July 10, 2020).

Western Heritage Insurance Company issued three concurrent general liability policies to HT Services, LLC. The policies insured two properties owned by HT in Colorado Springs, its offices and vacant land. HT eventually developed a residential community on the vacant land. In January 2016, the homeowners' association filed suit against HT for negligent design and construction of a retaining wall at the project.

HT requested Western to defend and indemnify against the suit. Western denied coverage and HT sued. HT asserted that Western had a duty to defend and asserted claims for declaratory relief, breach of contract and bad faith. HT moved for partial summary judgment on its claims for declaratory relief, seeking a determination of its rights under the policies. Western moved for summary judgment on all of HT's claims.

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


Five Haight Attorneys Selected for Best Lawyers in America© 2021

Gold number 5 under spotlight

Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

September 7, 2020
Haight Brown & Bonesteel LLP

Five Haight Brown & Bonesteel LLP attorneys were selected for Best Lawyers in America© 2021. Congratulations to William Baumgaertner, Bruce Cleeland, Peter Dubrawski, Michael Leahy and Denis Moriarty.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers has received over 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”


ACP Earthquake Resilience Mitigation Webinar

September 7, 2020
Beverley BevenFlorez – CDJ Staff

The Association of Continuity Professionals (ACP) Los Angeles chapter presents a seminar on mitigating earthquake non-structural hazards. The speaker, Glen Granholm, Vice President of Safe-T-Proof, “has been involved in earthquake preparedness for nearly 30 years, including managing mandated retrofit projects and developing bracing strategies for businesses.”

October 6th, 2020
Live Webinar


Alexis Crump Receives 2020 Lawyer Monthly Women in Law Award

Word success ladder

Ms. Crump joins an elite group of women from around the world who have influenced the legal profession with their experience and expertise.

August 31, 2020
Alexis Crump - Lewis Brisbois

Los Angeles Partner Alexis G. Crump has been recognized with a 2020 Lawyer Monthly "Women in Law Award." In receiving this honor, Ms. Crump joins an elite group of women from around the world who have influenced the legal profession with their experience and expertise.

Lawyer Monthly’s "Women in Law Awards" emerged as one of the first industry awards to celebrate the achievements and contributions made by women working globally in the legal sector and in business. Recognizing women at all levels of seniority, the publication seeks to acknowledge the challenges that female legal professionals regularly overcome to serve their clients and perform at their best.

“It is an honor to be recognized alongside so many outstanding and accomplished women. I look forward to continuing to support my colleagues in their work and participating in the global network of female attorneys,” Ms. Crump said.

Ms. Crump may be contacted at Alexis.Crump@lewisbrisbois.com


New Report Reveals Heavy Civil Construction Less Impacted by COVID-19 Than Commercial Construction

Construction site

Ninety-nine contractors responded to the survey conducted online from mid-April to mid-May 2020.

August 31, 2020
Dodge Data and Analytics - Construction Executive

Heavy civil construction is deemed essential to the economy and has continued in many jurisdictions throughout the economic shutdown. However, data from The Civil Quarterly (TCQ), a new publication from Dodge Data & Analytics, reveals contractors in this sector are facing supply chain issues and other challenges in keeping jobsites going.

The Civil Quarterly (TCQ) is the result of a partnership with Founding partner Infotech, Platinum partner Leica Geosystems and Gold partners Command Alkon and Digital Construction Works, and is based on original research collected quarterly from civil contractors and engineers. The research provides a snapshot of the current business health of contractors operating in this dynamic environment. The inaugural report features research on how technology is transforming civil jobsites and on the prevalence of important safety practices, and future issues will continue to offer insights into key trends that are transforming the sector. Ninety-nine contractors responded to the survey conducted online from mid-April to mid-May 2020.

Reprinted courtesy of Dodge Data and Analytics, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

To learn more about Dodge Data and Analytics, visit www.construction.com


Edward Beitz and William Taylor Recognized by US News – Best Lawyers as a "Lawyer of the Year"

Businessman crossing finish line

Edward Beitz and William Taylor have been recognized by U.S. News – Best Lawyers® as a “Lawyer of the Year” in their respective practices in Philadelphia.

August 31, 2020
Edward Beitz & William Taylor - White and Williams

White and Williams is proud to announce that Edward Beitz and William Taylor have been recognized by U.S. News – Best Lawyers® as a “Lawyer of the Year” in their respective practices in Philadelphia. Ed was named in the area of Medical Malpractice and Bill was named in Construction Law. "Lawyer of the Year" recognitions are awarded to individual lawyers with extremely high overall peer-feedback for a specific practice area and geographic location.

Ed is a member of the Healthcare Group and focuses his practice on medical malpractice defense, defending doctors, nurses, physician assistants and hospitals at the trial and appellate court levels, as well as general liability matters. He has successfully defended numerous medical malpractice cases at trial involving complex issues of the human anatomy, such as cardiac surgery, neurosurgery, orthopedic surgery, nursing care, obstetrical complications, nerve injury and vascular injury. Ed has authored briefs on appellate issues in healthcare and coverage matters to the Superior Court of Pennsylvania, the New Jersey Appellate Division and the Third Circuit Court of Appeals.

Reprinted courtesy of Edward Beitz, White and Williams and William Taylor, White and Williams
Mr. Beitz may be contacted at beitze@whiteandwilliams.com
Mr. Taylor may be contacted at taylorw@whiteandwilliams.com


Plaza Construction Negotiating Pay Settlement for Florida Ritz-Carlton Renovation

Businesswoman holding up cash

COVID-19 has devastated South Florida’s previously booming hotel industry and triggered thousands of layoffs.

August 31, 2020
Scott Van Voorhis - Engineering News-Record

Lionstone Development, owner of the Ritz-Carlton hotel in Miami Beach's South Beach section, began a $90-million renovation in 2017 after damage by Hurricane Irma forced the property's closing. The company reopened the hotel this past January to considerable acclaim in the hospitality industry press.

Scott Van Voorhis, Engineering News-Record

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

Read the full story...


Champagne Wishes and Caviar Dreams. Unlicensed Contractor Takes the Cake

Outside reception guests drinking champagne

Moore v. Teed is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.”

August 31, 2020
Garret Murai - California Construction Law Blog

Before the Kardashians, before Empire, before Crazy Rich Asians there was Lifestyles of the Rich and Famous with Robin Leach. The next case, Moore v. Teed, Case No. A153523 (April 24, 2020), 1st District Court of Appeals, is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.”

Moore v. Teed

The $13 Million Dollar “Fixer Upper”

Justin Moore just wanted to buy a house in San Francisco. But he couldn’t afford one in the neighborhoods he preferred. But in 2011, luck struck, when Moore met Richard Teed, a real estate agent with “over 25 years of experience as a building contractor,” “an extensive background in historic restorations” and a “deep understanding of quality construction.” Teed told Moore that he could locate a “lower-priced fixer-upper in a choice neighborhood and then renovate it.” Moore was sold.

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


Get Creative for Post-Pandemic Construction Recruiting

August 31, 2020
Annalisa Enrile - Construction Executive

Though the COVID-19 pandemic has put millions out of work, essential workers in industries like construction have continued. Considered part of the more than 17 million workers in infrastructure jobs that include construction site workers, electricians, plumbers, other skilled trades and project managers, the need for a consistent labor force is even more urgent. Questions about how to fill labor gaps due to illness, vulnerability to the pandemic and aging pose real challenges to companies.

While these labor gaps might seem insurmountable or—at the very least—unfillable, another way to look at it is an opportunity. Namely, this is an opening for construction executives to think outside of the box or, in this case, traditional populations where hiring occurs and instead look to untapped communities.

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


OSHA/VOSH Roundup

Construction worker pinning something to uniform

The Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.

August 31, 2020
Christopher G. Hill - Construction Law Musings

In an unusual flurry of occupational safety related activity, the Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.

In Nat’l College of Business & Technology Inc. v. Davenport (.pdf), the Virginia Court of Appeals considered what constitutes a “serious” violation of the exposure to asbestos Virginia Occupational Safety & Health (VOSH) regulations. The facts found by the Salem, Virginia Circuit Court were that employees of the petitioner college were exposed to asbestos insulation when they were required to enter a boiler room to retrieve paper files. However, no evidence was presented regarding the length of time or level of exposure at the Circuit Court level. Despite the lack of evidence regarding the level or extent of exposure, the Circuit Court upheld the VOSH citation for exposure and the level of violation at a “serious” level with the attendant penalty.

The Virginia Court of Appeals disagreed with the second finding. The appellate court determined that the lack of evidence regarding the level of exposure (whether length or extent) made the serious level violation an error. The Court stated that merely presenting evidence that asbestos is a carcinogen is not enough given the number of carcinogenic materials in existence and then remanded the case back to Circuit Court to reconsider the penalty level.

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


Appeals Court Rules that Vertical and Not Horizontal Exhaustion Applies to Primary and First-Layer Excess Insurance

Twin white lines painted on asphalt

Braun initiated coverage litigation in 2004, which went to trial and was on appeal when the Supreme Court handed down its Montrose III decision.

August 31, 2020
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP

In Santa Fe Braun v. Ins. Co. of North America (No. A151428, filed 7/13/20), a California appeals court relied on Montrose Chemical Corp. of California v. Superior Court (2020) 9 Cal.5th 215 (Montrose III), to hold that absent express policy wording to the contrary, horizontal exhaustion of all primary insurance is not required in order to trigger first-layer excess coverage.

Beginning in 1992, Braun was sued for asbestos injuries from refineries it constructed and maintained. Braun had primary coverage and multiple layers of excess coverage for the relevant time period. After defending for years, the primary insurers reached a settlement under which they paid their limits into a trust which would fund the ongoing defense and settlements. Certain of the excess insurers settled and also contributed to the trust.

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


Georgia Update: Automatic Renewals in Consumer Service Contracts

Woman pointing at contract for man to sign

Georgia HB 1039 amends O.C.G.A. § 13-12-3.

August 31, 2020
David R. Cook - AHC Blog

Georgia HB 1039 amends O.C.G.A. § 13-12-3 to provide additional protections for consumers who enter into service contracts containing lengthy automatic renewal provisions.

Pre-Existing Requirement: For service contracts with an initial term of twelve months or longer and an automatic renewal provision for more than one month, unless the consumer terminates the agreement, sellers must provide written or electronic notification of the automatic renewal provision to the consumer. The notification must be provided to the consumer between 30 and 60 days before the cancellation deadline under such renewal provision. The notice must also “clearly and conspicuously” disclose that unless the consumer cancels, the agreement will automatically renew and disclose how the consumer may obtain details about the automatic renewal provision and cancellation procedure. The process by which a consumer may obtain such information must include the seller’s contact information (e.g., specific phone number or address), reference to the contract, or any other method provided.

Mr. Cook may be contacted at cook@ahclaw.com


Want More Housing? Ending Single-Family Zoning Won’t Do It.

August 31, 2020
Emily Hamilton - Bloomberg

Before Covid-19 took hold of the national consciousness, the YIMBY movement — of those saying “Yes In My Backyard” to housing development — appeared ready to go mainstream. More and more people recognized that NIMBYism run amok and codified into local laws leads to fewer housing options, drastically raising prices in cities and towns alike, and contributing to inequality. Now, in a time of pandemic-driven budget cuts and unemployment, the importance of housing affordability is growing.


Product Defect Allegations Trigger Duty To Defend in Pennsylvania

Businesswoman in cape flying

While this decision is not precedential, it is instructive to insureds seeking defense in construction defect matters.

August 31, 2020
Stacy M. Manobianca - Saxe Doernberger & Vita

The Third Circuit Court of Appeals recently concluded, in Nautilus Insurance Co. v. 200 Christian Street Partners, LLC., that a duty to defend is triggered when product-related allegations are pled in connection with a claim for defective construction.

In Nautilus, the coverage dispute arose out of two independent underlying lawsuits in which homeowners alleged that the homes built by 200 Christian Street Partners (“Christian Street”) were defectively constructed. Christian Street tendered the claim to its insurer, Nautilus Insurance Co. (“Nautilus”), for defense and indemnity.1

Nautilus filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration that it was not obligated to defend Christian Street in the underlying actions.2 Specifically, Nautilus asserted that it was not required to provide a defense in the underlying actions because Pennsylvania law does not consider faulty workmanship to constitute an “occurrence” and, therefore, to trigger the policy’s insuring agreement and the insurer’s duty to defend.3

Ms. Manobianca may be contacted at smm@sdvlaw.com


Maine Court Allows $1B Hydropower Transmission Project to Proceed

The court on Aug. 13 rejected as unconstitutional a proposal by foes to include a measure opposing the project.

August 31, 2020
Mary B. Powers - Engineering News-Record

Maine’s Supreme Court cleared the way for construction to begin on the nearly $1-billion, 145-mile high voltage transmission line that will feed hydroelectric power from Quebec into the New England power grid.

Mary B. Powers, Engineering News-Record

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

Read the full story...


"Decay" Found Ambiguous in Collapse Case

Businessman holding scale of justice

A large portion of the sanctuary ceiling of the insured's church collapsed.

August 31, 2020
Tred R. Eyerly - Insurance Law Hawaii

The federal district court granted, in part, the insured's motion for summary judgment seeking coverage for a collapse of a church's ceiling. Derbyshire Baptist Church v. Church Mut. Ins. Co., 2020 U.S. Distl LEXIS 113346 (E.D. Va. June 29, 2020).

A large portion of the sanctuary ceiling of the insured's church collapsed. A claim was filed with the insurer. The insurer hired a forensic engineer who found the collapse was caused by the disconnection of wire support hangers from the wood roof beams. Further, "the redistribution of load on the hangers resulted in a progressive failure of the hangers and their supported components." Based on these findings, the insurer denied coverage.

The policy excluded coverage for collapse, but in the Additional Coverage portion of the policy, collapse caused by "decay that is hidden from view" was covered. The court pondered the meaning of "decay," which was not defined in the policy.

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


Save the Date: Construction Defects Seminar

August 31, 2020
Beverley BevenFlorez – CDJ Staff

This one-day Construction Defects seminar located in Seattle, Washington and Live Webcast has an Early Bird Special if registered by October 1st. Topics to be covered include Construction, Insurance, and Litigation. The seminar is relevant for Architects, Contractors, Engineers, Government Employees, Insurance Professionals, and Municipal Employees.

December 2nd, 2020
Location TBD
Seattle, WA
Live Webcast Available


Separation of Insureds Provision in CGL Policies

Policy on ripped paper

The case of Taylor v. Admiral Ins. Co., 187 So.3d 258 (Fla. 3d DCA 2016) exemplifies the application of the Separation of Insureds provision.

August 31, 2020
David Adelstein - Florida Construction Legal Updates

CGL policies contain a “Separation of Insureds” provision. This provision oftentimes states:

    Except with respect to the Limits of Insurance, and any rights or duties specifically assigned this Coverage Part to the first Named Insured, this insurance applies:
  1. As if each named insured were the only Named Insured; and
  2. Separately to each insured against whom claim is made or “suit” is brought.

This provision is designed to “create separate insurable interests in each individual insured under a policy, such that the conduct of one insured will not necessarily exclude coverage for all other insured.” Evanson Ins. Co. v. Design Build Interamerican, Inc., 569 Fed.Appx. 739 (11th Cir. 2014). This provision also allows one insured under the policy (e.g., additional insured) to sue another (e.g., named insured) without violating potential coverage because there are separate insurable interests. This is a valuable provision in CGL policies.

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


Massachusetts District Court Holds Contractors Are Not Additional Insureds on Developer’s Builder’s Risk Policy

Two construction workers looking at plans

Attorney Gus Sara analyzes Factory Mut. Ins. Co. v. Skanska United States Bldg.

August 31, 2020
Gus Sara - The Subrogation Strategist

In Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020 U.S. Dist. LEXIS 95403 (Skanska), the United States District Court for the District of Massachusetts considered whether contractors on a construction job were additional insureds on the developer’s builder’s risk insurance policy. After a water loss occurred during construction, the builder’s risk insurance carrier paid its named insured for the resultant damage, and subsequently filed a subrogation action against two contractors. The defendants filed a motion for summary judgment, claiming that the anti-subrogation rule barred the carrier from subrogating against them because they were additional insureds on the policy. The court found that based on the particular language of the additional insured provision in the policy, the defendants were not additional insureds for purposes of the subrogation action.

Skanska arose from property damage that occurred during a construction project where Novartis Corporation (Novartis) endeavored to construct a biomedical research building in Cambridge, Massachusetts and retained Skanska USA Building, Inc. (Skanska) as the general contractor. In turn, Skanksa hired J.C. Cannistraro, LLC (JCC) as a subcontractor. Novartis secured a builder’s risk insurance policy from Factory Mutual Insurance Company (Factory Mutual). The policy defined “Insured” as Novartis and its subsidiaries, partnerships and joint ventures that it controlled or owned. The policy included another provision, titled “Property Damage,” which stated that the policy “insures the interest of contractors and subcontractors in insured property… to the extent of the Insured’s legal liability for insured physical loss or damage to such property.”

Mr. Sara may be contacted at sarag@whiteandwilliams.com



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