Surplus Lines Carrier Can Force Arbitration in Louisiana Despite Statute Limiting Arbitration
February 12, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court granted the surplus lines insurer's motion to compel arbitration despite a Louisiana statute barring policies from depriving courts of jurisdiction in cases against insurers. Queens Beauty Supply, LLC v. Indep.Specialty Ins. Co., 2023 U.S. Dist. LEXIS 195372 (E.D. La. Oct. 31, 2023).
Hurricane Ida damaged property leased by Queens. Queens filed suit against its insurer, Independent Specialty Insurance Company (ISIC) for breath of contract and bad faith for failing to pay the full amount Queens contends it was owed for the damage. ISIC moved to compel arbitration.
Queens argued that ISIC waived its right to enforce the policy's arbitration clause by its actions before the court, including failing to opt-out of the settlement program adopted for Hurricane Ida cases. The court disagreed, ISIC had taken no overt act that evidenced a desire to resolve the instant dispute through litigation rather than arbitration. ISIC asserted as an affirmative defense that Queens's claims were barred by the arbitration clause in the policy. ISIC then participated in the settlement program for Hurricane Ida cases, which evidences a desire to settle the dispute, not to resolve it by litigation. Therefore, ISIC had not waived its right to arbitrate.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Court Strikes Expert Opinion That Surety Acted as a “De Facto Contractor”
November 27, 2023 —
David Adelstein - Florida Construction Legal UpdatesDesignating and admitting experts is a vital component of any construction dispute. Many construction disputes require experts. Many construction disputes can only be won with the role of an expert. Thus, experts and construction disputes go hand-in-hand. No doubt about it! Time needs to be spent on developing the right expert opinions to support your burden of proof. This means you want to designate the right expert that can credibly and reliably render an expert opinion.
It is common for one party to move to strike the testimony and expert opinions of another party. This is referred to as a Daubert motion. Sometimes the motion is about gamesmanship. Sometimes it is to see how the judge rules on the issue. Sometimes there is a legitimate reason associated with the expert opinion. And, sometimes, it is a combination of the above. Regardless of the reason, parties know the weight expert opinions can have and, therefore, treat the opinions seriously prompting the Daubert motion.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
A Look at Trending Legislative Changes Impacting Workers' Comp
February 26, 2024 —
Rosanna Shamash - Construction ExecutiveThe tides are shifting in the construction industry when it comes to legal matters—and business owners could feel the brunt of it.
Recent legislative changes in the state of New York could signal how workers’ compensation cases move forward across the country and impact business owners in the space. Arguably, New York has historically laid the groundwork for workers’ compensation law in numerous other states. Now, we’re seeing a clear shift in favor of workers with some of the recent legislative changes. Owners, operators and executives in the construction space have increasingly found themselves facing costly claims that in years prior carried a smaller dollar value and were largely viewed as inconsequential.
So, what’s the best way for business owners in the construction industry to protect their businesses for the future? Start by gaining a basic understanding of changes in the legal landscape, by securing defense attorneys who know the construction space and by taking steps to protect your business before an incident happens.
Reprinted courtesy of
Rosanna Shamash, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works Contracts
December 16, 2023 —
Nicholas J. Zaita & Brian Glicos - Peckar & Abramson, P.C.Introduction
In a matter of “first impression,” on November 30, 2023, the Appellate Division affirmed the New Jersey Superior Court decision in
Ernest Bock & Sons-Dobco Pennsauken Joint Venture v. Township of Pennsauken and Terminal Construction Corp., finding that the New Jersey Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48 to -56.57 (“PWCRA” or the “Act”), applies to a joint venture formed for the sole purpose of bidding on a public works contract. Therefore, the Court held that the PWCRA requires any joint venture bidding on public works projects in New Jersey to be registered under the Act at the time of bid submission. Accordingly, the Township of Pennsauken acted within its authority and properly rejected the bid submission of the Ernest Bock & Sons-Dobco Joint Venture which was not registered under the Act in the name of the joint venture at the time of its bid submission, despite the individual members of the joint venture being registered.
Reprinted courtesy of
Nicholas J. Zaita, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Zaita may be contacted at nzaita@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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Action Needed: HB24-1230 Spells Trouble for Colorado Construction Industry and its Insurers
March 25, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCIn an apparent gift to plaintiffs’ construction defect lawyers, Representatives Parenti and Bacon introduced House Bill 24-1230 on February 12, 2024. The bill was assigned to the House Judiciary Committee and is scheduled for hearing on March 6th, during the afternoon session beginning at 1:30 pm. To date, the bill does not have any senate sponsors, perhaps because the senators are more interested in serving their constituents’ needs for attainable housing than in lining the pockets of their plaintiffs’ construction defect attorney friends.
According to the bill’s summary, HB 24-1230 contains the following provisions:
Current law declares void any express waivers of or limitations on the legal rights or remedies provided by the “Construction Defect Action Reform Act” or the “Colorado Consumer Protection Act.” Sections 1 and 4 make it a violation of the “Colorado Consumer Protection Act” to obtain or attempt to obtain a waiver or limitation that violates the aforementioned current law.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
DOI Aims to Modernize its “Inefficient and Inflexible” Type A Natural Resource Damages Assessment Regulations
March 25, 2024 —
Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law BlogThe U.S. Department of the Interior (DOI) published a
proposed rule aimed at modernizing and streamlining the “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Water Act (CWA). (The comment deadline was later
extended.) The revisions,
first previewed in a January 2023 Advanced Notice of Proposed Rulemaking (ANPR), are intended to fulfill “the original statutory purpose of providing a streamlined and simplified assessment process” with the overarching goal of facilitating settlements and expediting restoration efforts following injury resulting from pollution in a broader range of cases.
The NRDA regulations provide two paths to assessing natural resource damages (NRD): (1) the more complex, site-specific Type B procedures for detailed NRDAs and (2) what is intended to be the standard, simplified Type A assessment procedures requiring minimal field observation. Particularly, the Type A process is reserved for two specific aquatic environments (coastal and marine areas or Great Lakes environments) when a relatively minor release of a single hazardous substance occurs, resulting in a smaller scale and scope of natural resource injury, and the rebuttal presumption for the Type A procedure is limited to damages of $100,000 or less under the current version of the rule.
Reprinted courtesy of
Amanda G. Halter, Pillsbury,
Jillian Marullo, Pillsbury and
Ashleigh Myers, Pillsbury
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
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The Requirement to State a “Sum Certain” No Longer a Jurisdictional Bar to Government Contract Claims
November 13, 2023 —
Marcos R. Gonzalez - ConsensusDocsThe Boards of Contract Appeals, Court of Federal Claims, and the Federal Circuit have long held that the elements of a claim under the Contract Disputes Act (“CDA”) to be jurisdictional. Those requirements are as follows:
(a) Claims generally.–
(1) Submission of contractor’s claims to contracting officer.–Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.
(2) Contractor’s claims in writing.—Each claim by a contractor against the Federal Government relating to a contract shall be in writing.
(3) Contracting officer to decide Federal Government’s claims.–Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.
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Marcos R. Gonzalez, Peckar & Abramson, P.C.Mr. Gonzalez may be contacted at
mgonzalez@pecklaw.com
Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts
November 13, 2023 —
Hal Baker - Colorado Construction Litigation BlogIn a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential.
The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided:
Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature.
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Hal Baker, Higgins, Hopkins, McLain & Roswell, LLCMr. Baker may be contacted at
baker@hhmrlaw.com