Ensuing Loss Provision Salvages Coverage for Water Damage Claim
September 16, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Court of Appeals for the D.C. Circuit reversed the district court's finding of no coverage and found that the ensuing loss provision provided coverage for water damage. 3524 East Cap Venture, LLC, et al. v. Weschester Fire Ins. Co., et al., 104 F. 4th 193 (D.C. Cir. 2024).
Plaintiff 3534 East Cap Venture, LLC, a real-estate developer, hired plaintiff McCullough Construction, LLC, to build a residential and retail complex. Defendants Westchester Fire Insurance Company and Endurance American Insurance Company issued identical builders' risk policies, which covered the building while it was under construction. Each insurer was responsible for half of any qualifying losses.
The policies covered loss caused by or resulting from water damage. The policies, however, excluded loss caused by "dampness of atmosphere" or by "[e]xtremes or changes in temperature." But the exclusions contained an exception if "loss by an insured peril ensues."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
“Since You Asked. . .”
October 15, 2024 —
Daniel Lund III - Lexology… you must now pay.
So said a California appellate court, affirming the trial court’s decision against a subcontractor suing for unpaid subcontract sums. Instead of being awarded those unpaid amounts, the subcontractor lost the case and was tagged with a $1.55 million attorney’s fees award and $270,000 costs award in favor of the defendants.
What went wrong?
California law requires a licensed contractor to maintain at all times proper workers’ compensation insurance coverage. The failure to maintain the coverage and have the certificate of coverage on file with the California Contractors State License Board results in “automatic and immediate suspension” of the contractor license. Retroactive reinstatement of the license may occur only if the contractor provides proof of the insurance within 90 days of the effective date of the insurance certificate – unless the contractor can show that failure to have the certificate on file was “due to circumstances beyond the control of the licensee.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
In Phoenix, Crews Thread Needle With $730M Broadway Curve Revamp
July 31, 2024 —
Scott Blair - Engineering News-RecordMotorists scrambling to dart across three lanes of traffic when merging onto the freeway. Vehicles slowing to a crawl due to extremely curved exit ramps. Commuters enduring agonizing backups as three freeways converge in a tight footprint. Bicyclists and pedestrians sweating through long detours to traverse freeways.
Reprinted courtesy of
Scott Blair, Engineering News-Record
Mr. Blair may be contacted at blairs@enr.com
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Untangling Unique Legal Issues in Modern Modular Construction
September 09, 2024 —
Chad Theriot & Brad Sands - Construction ExecutiveModular construction has grown significantly over the last few years and shows no signs of slowing down. This construction method is a departure from traditional approaches where all construction activity occurs onsite. Modular construction involves building standardized project components—usually in an offsite, controlled environment—which are then transported and assembled at the project site. Offsite construction generally allows for better quality control and economic efficiency, as it can utilize an assembly-line process. Modular fabrication can also centralize skilled labor in regions with lower labor costs.
Establishing each party's expectations upfront is always important, but even more so in modular construction since much of the construction activity is performed away from the ultimate project site. This requires extensive coordination among designers, fabricators, installers and owners to ensure construction, testing and quality progresses accordingly. Every field change and design clash could have an exponential impact on the modular fabrication efficiencies given the assembly-line approach and remote nature of modular work.
Reprinted courtesy of
Chad Theriot & Brad Sands, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Real Estate & Construction News Roundup (10/1/24) – Hybrid Work Technologies, AI in Construction and the Market for Office Buildings
November 05, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, commercial mortgage bond market in trouble, commercial real estate investments, pressure on mortgage REITs, and more!
- Short-term issues facing U.S. commercial real estate have made it an investment opportunity and values have bottomed out. (CNBC)
- As organizations report plans to shake up their real estate portfolios, the flight to quality spurs interest in space planning, amenities and hybrid work technologies. (Joe Burns, Facilities Dive)
- The conversation about AI’s potential benefits and risks has been a common refrain in construction recently. (Matthew Thibault, Construction Dive)
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Pillsbury's Construction & Real Estate Law Team
Celebrating Excellence: Lisa Bondy Dunn named by Law Week Colorado as the 2024 Barrister’s Best Construction Defects Lawyer for Defendants
October 28, 2024 —
David M. McLain – Colorado Construction LitigationWe are thrilled to announce that our very own Lisa Bondy Dunn has been recognized by Law Week Colorado as the 2024 Barrister’s Best Construction Defects Lawyer for Defendants. This prestigious accolade is a testament to Lisa’s dedication, expertise, and unwavering commitment to achieving the best outcomes for our clients.
Lisa, a Partner at Higgins, Hopkins, McLain & Roswell (“HHMR”), has long been a leader in construction defect litigation, defending builders, contractors, developers, and design professionals in Colorado’s complex legal landscape. Her deep understanding of the industry and her relentless pursuit of practical, cost-effective solutions have earned her the respect of peers, clients, insurers, mediators, arbitrators, and courts alike.
As noted by Law Week Colorado: “For over two decades, Lisa Dunn has represented developers, contractors and subcontractors in construction-related disputes. Dunn has spoken across the country on construction and insurance matters, and she’s worked on several appellate cases during her career. She’s admitted in four states, and has consulted and represented some of the nation’s largest builders.”
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Second Circuit Affirms Win for General Contractor on No Damages for Delay Provision
September 02, 2024 —
Bill Wilson - Construction Law ZoneIn NASDI, LLC v. Skanska Koch Inc. Kiewit Infrastructure Co. (JV), 2024 WL 1270188 (2d Cir. Mar. 26, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s grant of summary judgment dismissing a subcontractor’s delay claim against a general contractor on a public project in New York state. The Court enforced a typical no-damages-for-delay provision to bar the subcontractor’s breach of contract claim. The no-damages-for-delay provision in the subcontract at issue provided:
NO DAMAGE FOR DELAY. Except as otherwise provided …, Subcontractor agrees that it shall have no Claim against Contractor for any loss or damage it may sustain through delay, disruption, suspension, stoppage, interference, interruption, compression, or acceleration of Subcontractor’s Work (‘Delay Damages’) caused or directed by Contractor for any reason, and that all such Claims shall be fully compensated for by Contractor’s granting Subcontractor such time extensions as it is entitled to as a result of any of the foregoing.
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
Changes to the Federal Rules – 2024
November 18, 2024 —
William L. Doerler - The Subrogation StrategistUnless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments.
Rules of Evidence
Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of fact understand the evidence - is generally not admissible into evidence.
Rule 613 currently stat
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