714.701.9180
CONSTRUCTION DEFECT NEWS
CDJ-Pencil on Insurance Policy

The California Supreme Court provided much-needed clarity on the question of when a so-called "intentional act" may give rise to insurance coverage under a liability insurance policy.

California Supreme Court Rights the “Occurrence” Ship: Unintended Harm Resulting from Intentional Conduct Triggers Coverage Under Liability Insurance Policy

Wednesday, June 13, 2018 — Scott S. Thomas - Payne & Fears Legal Alert

SUMMARY

In a ruling that bodes well for policyholders, the California Supreme Court provides much-needed clarity on the question of when a so-called "intentional act" may give rise to insurance coverage under a liability insurance policy. In Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co., Case No. S23765 (Cal. June 4, 2018), the Court holds that an employer's potential liability for negligent hiring, after its employee allegedly abused a 13-year old student, is the result of an "occurrence" and is thus covered under the employer's liability insurance policy.

COURT OPINION

The court's opinion dispels the misguided notion that an intentional act resulting in unintended harm is never an "occurrence" and can never trigger coverage. What matters, according to the Court, is that, from the insured's point of view, the consequences of its conduct are "unexpected, unforeseen, or undesigned" - even if the conduct is intentional. And in a concurring opinion, Justice Liu rightfully questions the legitimacy of the notion that intentional conduct cannot trigger coverage, even when it produces an unintended result, unless, in the words of a 1989 appellate court decision, some "additional, unexpected, independent, and unforeseen happening occurs that produces the damage." As Justice Liu explains, this intervening "happening" may be something as simple as the insured's mistaken belief that he was acting in self-defense, or that the victim had consented to the insured's conduct. This much-needed clarification restores vitality to the fundamental principle that injuries are "accidental" when they are "unexpected, unforeseen, or undesigned," regardless of their cause.

Reprinted courtesy of Scott S. Thomas, Payne & Fears

Mr. Thomas may be contacted at sst@paynefears.com

Read the full story…
Las Vegas Sign below vivid blue and purple sky

Richard Glucksman will be moderating a panel at the Perrin Construction Defect Claims & Trial conference in Las Vegas, Nevada.

Perrin Construction Defect Claims & Trial Conference

Monday, June 11, 2018 — Beverley BevenFlorez-CDJ STAFF

Richard Glucksman, Esquire, Partner of the Los Angeles firm Chapman Glucksman Dean Roeb & Barger, will be moderating the panel, “Green Building/LEED: An Overview and Claims Discussion” at the Perrin Construction Defect Claims & Trial Conference in Las Vegas, Nevada. The panel will be discussing the following topics:

  • Risk and claims case studies including solar and SIPs (Structural Insulated Panels)
  • Green Building/LEED and The Law: Review of National Claims/Lawsuits
  • AIA Documents for Sustainable Projects

Thursday, June 21st, 2018
Four Seasons Hotel
3960 S Las Vegas Blvd
Las Vegas, NV 89119


Read the full story…
Business people playing tug of war

When two competing experts disagreed on the cause of the loss, the trial court erred in granting summary judgment to the insurer.

Battle of Experts Cannot Be Decided on Summary Judgment

Wednesday, June 13, 2018 — Tred R. Eyerly - Insurance Law Hawaii

When two competing experts disagreed on the cause of the loss, the trial court erred in granting summary judgment to the insurer. Garcia v. Firs Community Ins. Co., Fla. App. LEXIS 4237 (Fla. Ct. App. March 28, 2018).

Garcia, the homeowner, discovered water damage in his home, allegedly due to a roof leak. Garcia notified his insurer, First Community Insurance Company. A forensic engineer, Ivette Acosta, was retained by First Community to inspect the property. After the inspection, coverage was denied.

The homeowner's policy covered direct loss to property only if the loss was a physical loss. Loss caused by ""rain snow, sleet, sand or dust to the interior of a building was excluded unless a covered peril first damaged the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening." Loss caused by wear and tear, marring, or deterioration was also excluded.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

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

Read the full story…
714.701.9180

Better Design of HVAC Systems with VR

June 13, 2018 — Aarni Heiskanen - AEC Business

Retrofitting new technical systems into an existing building can be tricky. CTRL Reality, a Finnish AR/VR application development company, is completing an experimentation project demonstrating how HVAC design and installation are easier and cost-efficient with the help of virtual reality.

Teijo Lehtonen CTRL Reality“We did research on the business use of virtual and augmented reality for five years at the University of Turku before starting up our company a year ago,” said CEO Teijo Lehtonen. “We’re focused on industrial and cultural travel applications.”

Mr. Heiskanen may be contacted at info@aepartners.fi

714.701.9180

Issues of Fact Require Denial of Insurer's Summary Judgment Motion in Collapse Case

June 13, 2018 — Tred R. Eyerly - Insurance Law Hawaii

The insurer's motion for summary judgment to establish there was no coverage for the collapse of the front wall in the insured's home was denied. Desvarieux v. Allstate Prop. & Cas. Ins. Co., 2018 US. Dist. LEXIS 71230 (E.D. Pa. April 26, 2018).

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

714.701.9180

Four Ways to Ensure Equipment Weathers the Storm

June 13, 2018 — Ryne DeBoer - Construction Executive

Weather events such as hurricanes and wildfires inflicted $306 billion in damages in the United States in 2017, making it the most expensive year for natural disasters ever recorded. In this environment, fleet managers must protect their equipment year-round to avoid costly repairs and speed up project timelines.

Reprinted courtesy of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. DeBoer may be contacted at info@moreycorp.com

714.701.9180

NBI Seminar: Construction Contracts from Start to Finish

June 13, 2018 — Beverley BevenFlorez-CDJ STAFF

This one-day seminar on construction contracts is suitable for attorneys, paralegals, and construction executives. The course will cover Louisiana Construction Law Update, Types of Construction Contracts, Drafting and Negotiating Construction Contracts to Prevent Disputes and Provide Remedies, Risk Allocation in Contraction, Contract Termination and Claims, and Ethical Considerations.

July 20th, 2018
Hyatt Place Baton Rouge
6080 Bluebonnet Boulevard
Baton Rouge, LA 70809

714.701.9180
Featured Experts For More Visit Us At:
www.constructiondefectjournal.com

Consulting General Contractor and Building Expert Witness Specializing in Construction Remediation and defect claims area areaarea

Consulting Civil Engineer and General Contracting Expert Witness Arrange No Charge Initial Consultation Concerning Your Matter. area area

Consulting Civil Engineer and General Contracting Expert Witness Arrange No Charge Initial Consultation Concerning Your Matter. area area

Businessmen around desk hiring interview

The Supreme Court of California addressed the question of whether an insured’s negligent hiring, retention and supervision of an employee who intentionally injured a third-party can be considered an occurrence under a general liability policy.

California Supreme Court Holds Insured Entitled to Coverage Under CGL Policy for Negligent Hiring

Wednesday, June 13, 2018 — Traub Lieberman Straus & Shrewsberry LLP - TLSS Insurance Law Blog

In its recent decision in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co.,2018 Cal. LEXIS 4063 (Cal. June 4, 2018), the Supreme Court of California addressed the question of whether an insured’s negligent hiring, retention and supervision of an employee who intentionally injured a third-party can be considered an occurrence under a general liability policy.

The insured, L&M, was the construction manager on a project at a middle school in California. It was alleged that one of its employees sexually abused a thirteen year old student during the course of the project. The student later brought a civil suit against L&M based on its negligent hiring, retention and supervision of the employee-perpetrator.

Reprinted courtesy of Traub Lieberman Straus & Shrewsberry LLP
Read the full story…
Businessman in office has problem with deadline

Under the new law, defendants can bring third parties into the action after the expiration of the 10-year statute of repose period.

Florida Extends Filing Time for Claims Subject to the Statute of Repose

Wednesday, June 13, 2018 — William L. Doerler - The Subrogation Strategist

Under Florida’s construction-related statute of repose, Fla. Stat. § 95.11, actions based on the design, planning or construction of an improvement to real property are barred if not commenced within 10 years after the later of several possible dates, including the date of actual possession by the owner and the date of the issuance of a certificate of occupancy. The Florida Legislature recently amended the statute to extend the time within which defendants subject to a suit filed close to the end of the 10-year period can file claims. Under the revised law, a defendant can file “counterclaims, cross-claims and third-party claims up to 1 year after the pleading to which such claims relate is served.” Regardless of when the cause of action at issue accrued, the law applies to actions commenced on or after July 1, 2018, except that any action that would not have been barred under Fla. Stat. § 95.11(3)(c) prior to the amendment may be commenced before July 1, 2019.

The revised law provides relief to defendants because, under the prior law, they had to file claims against other potentially responsible third parties before the expiration of the statute of repose. Under the new law, defendants can bring third parties into the action after the expiration of the 10-year statute of repose period.

Reprinted courtesy of William L. Doerler, White and Williams LLP

Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Read the full story…
Five golden stars

Haight Partner Michael C. Parme and attorneys Frances Ma and Kristian B. Moriarty have been selected to the 2018 Southern California Rising Stars list.

Haight Attorneys Selected to 2018 Southern California Rising Stars List

Wednesday, June 13, 2018 — Haight Brown & Bonesteel LLP

Haight proudly announces that Partner Michael C. Parme and attorneys Frances Ma and Kristian B. Moriarty have been selected to the 2018 Southern California Rising Stars list.

Super Lawyers, a Thomson Reuters business, is a rating service that lists outstanding lawyers from a wide range of practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Reprinted courtesy of Haight Brown & Bonesteel LLP
Read the full story…
714.701.9180
CONSTRUCTION DEFECT NEWS
Guide Word

One often overlooked aspect of being a general contractor is having the appropriate contractor license and minimum surety bond.

A General Contractors Guide to Bond Thresholds by State

Wednesday, June 13, 2018 — Wally Zimolong – Supplemental Conditions

Author: Eric Weisbrot is the 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.

For general contractors in construction, there are many facets of business management that must be considered and then accomplished over time. Operating a successful general contractor business regardless of size or niche requires an understanding of bookkeeping, personnel management, regulatory compliance, as well as revenue potential for each project. However, one often overlooked aspect of being a general contractor – having the appropriate contractor license and minimum surety bond – correlates to each of these required fragments of the business from the start.

Reprinted courtesy of Wally Zimolong, Zimolong LLC

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

Read the full story…
Gas station

In Massachusetts, environmental rules require the installation of “positive limiting barriers” at gasoline service stations to contain gasoline spills of up to 5 gallons.

“Positive Limiting Barriers” Are An Open and Obvious Condition, Relieving Owner of Duty to Warn

Wednesday, June 13, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

On June 1, the U.S. Court of Appeals for the First Circuit decided the case of Potvin v. Speedway, Inc., a personal injury case subject to the laws of Massachusetts. In Massachusetts, environmental rules require the installation of “positive limiting barriers” at gasoline service stations to contain gasoline spills of up to 5 gallons. At a self-service station now owned by Speedway, Inc., the plaintiff, a passenger in a car being serviced, exited the car but tripped on these barriers and was injured. She sued Speedway in state court, and the case was removed to federal court.

Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP

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

Read the full story…
CDJ-Risk Factors Pencil On Contract

The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed.

Slavin Doctrine and Defense from Patent Defects

Wednesday, June 13, 2018 — David Adelstein - Florida Construction Legal Updates

The Slavin doctrine is an affirmative defense primarily geared to the personal injury context designed to protect contractors from third-party negligence-type claims when an owner accepts a patent defect.

The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed; if the owner accepts the contractor’s work as complete and an alleged defect is patent, then the owner “accepts the defects and the negligence that caused them as his own,” and the contractor will no longer be liable for the patent defect.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

Read the full story…

Peter Calthorpe Discusses Seven Principles for Building Better Cities

714.701.9180
CONSTRUCTION DEFECT NEWS
CDJ_Construction worker on project site

Whether a lien attaches can turn on whether the person directing work is the owner’s construction agent.

Contractor’s Charge Of Improvements To Real Property Not Required For Laborers To Have Lien Rights

Wednesday, June 13, 2018 — Matt T. Paxton - Ahlers Cressman & Sleight PLLC Blog

In Washington, persons furnishing labor, professional services, material, or equipment for improvements of real property are generally entitled to a lien on that property, but only if their labor is furnished at the direction of the owner or the owner’s “construction agent.”[1] Whether a lien attaches, therefore, can turn on whether the person directing work is the owner’s construction agent. Washington’s mechanic’s lien statute defines “construction agent” as “any registered or licensed contractor, registered or licensed subcontractor, architect, engineer, or other person having charge of any improvement to real property, who shall be deemed the agent of the owner for the limited purpose of establishing the lien created by this chapter.”[2]

Reprinted courtesy of Matt T. Paxton, Ahlers Cressman & Sleight PLLC

Mr. Paxton may be contacted at matt.paxton@acslawyers.com

Read the full story…


CDJ-Pebbles on ground

South Carolina enacted the Insurance Data Security Act, becoming the first state to pass legislation based upon the Insurance Data Security Model Law.

South Carolina’s New Insurance Data Security Act: Pebbles Before a Landslide?

Wednesday, June 13, 2018 — Richard Borden, Sedgwick Jeanite & Joshua Mooney - White and Williams LLP

The ramp-up of cybersecurity regulation, albeit in a patchwork fashion through state-level legislation, has begun. On May 18, 2018, South Carolina enacted the Insurance Data Security Act (Act), becoming the first state to pass legislation based upon the Insurance Data Security Model Law that was approved by the National Association of Insurance Commissioners (NAIC) last October. The Act makes very little change to the model law’s text, which in turn, is based on 23 NYCRR § 500, et seq., the cybersecurity regulations promulgated by the New York State Department of Financial Services in March 2017. The Act establishes stringent standards for both data security programs, and an entity’s response to a “cybersecurity event” through an organized and methodical investigation and notification to the state’s Department of Insurance. Like New York’s cybersecurity regulations, the Act requires insurers to submit to the Department of Insurance annual certification of compliance and has a ratcheted implementation of portions of the legislation on insurers and brokers operating or otherwise licensed to do business in the state. It does not create a private cause of action.

Reprinted courtesy of White and Williams LLP attorneys Richard Borden, Sedgwick Jeanite and Joshua Mooney
Mr. Borden may be contacted at bordenr@whiteandwilliams.com
Mr. Jeanite may be contacted at jeanites@whiteandwilliams.com
Mr. Mooney may be contacted at mooneyj@whiteandwilliams.com



Read the full story…


CDJ_Can of Nuclear Waste in Desert in front of Sunset

On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al.

State of Texas’ Claims Time Barred by 1982 Nuclear Waste Policy Act

Wednesday, June 13, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al. The Court of Appeals held that the petition for mandamus filed by the State of Texas essentially seeking to compel the Nuclear Regulatory Commission (NRC) to establish a schedule for the operation of the Yucca Mountain, NV nuclear waste depository was untimely filed. The depository is very controversial in Nevada, and as a consequence, none of the many deadlines established by Congress have been met.

Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP

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

Read the full story…


CDJ-Beware Sign in front of Train Tracks

Governor Tom Wolf signed into law House Bill 566 which make major changes to Pennsylvania’s Contractor and Subcontractor Payment Act.

Owners and Contractors Beware: Pennsylvania (Significantly) Strengthens Contractor Payment Act

Wednesday, June 13, 2018 — Wally Zimolong – Supplemental Conditions

Yesterday, Governor Tom Wolf signed into law House Bill 566 which make major changes to Pennsylvania’s Contractor and Subcontractor Payment Act. Owners and General Contractors that fail to take head of the changes could face significant financial consequences.

The Pennsylvania Contractor and Subcontractor Payment Act, known as CAPSA or simply the Payment Act, was passed into law in 1994. The intent was “to cure abuses within the building industry involving payments due from owners to contractors, contractors to subcontractors, and subcontractors to other subcontractors.” Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 500 (Pa. Super. Ct. 2009). In reality, abuses still occurred. While the Payment Act purportedly dictated a statutory right to payment within a certain amount of time and imposes stiff penalties for failure make payment, including 1% interest per month, 1% penalty per month, and reasonable attorneys fees, the language of the Payment Act left recalcitrant contractors with wiggle room. Particularly, the Payment Act allowed owners and higher tier subcontractors to withhold payment “deficiency items according to the terms of the construction contract” provided it notified the contractor “of the deficiency item within seven calendar days of the date that the invoice is received.” 73 P.S. Section 506. The problem was that the Payment Act did not expressly state where the notice must be in written, what it must say, and what happened if notice was not given.

Reprinted courtesy of Wally Zimolong, Zimolong LLC

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

Read the full story…


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

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

714.701.9180
714.701.9180
714.701.9180
Construction Defect Journal is aggregated from a variety of news sources, article submissions, contributors, and information from industry professionals.
No content on this site should be construed as legal advice or expert opinion. By viewing this site you agree to be bound by its terms and conditions CONSTRUCTION NEWS constructiondefecteminars.html constructionDefectChannel.html contactCDJ.html