COLUMBUS OHIO CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

New WOTUS Rule

November 13, 2023 — David R. Cook Jr. - Autry, Hall & Cook, LLP
The U.S. Army Corps of Engineers amended the regulation to conform the definition of “waters of the United States” to conform to the Supreme Court’s ruling in Sackett v. Environmental Protection Agency. See the prior blog post about the Supreme Court’s ruling: Sackett v. Environmental Protection Agency – Construction and Utility Law | Atlanta | AHC Law Federal Register :: Revised Definition of “Waters of the United States”; Conforming Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP Mr. Cook may be contacted at cook@ahclaw.com Read the full story...

---

Illinois Court of Appeals Addresses Waiver and Estoppel in Context of Suit Limitation Provision in Property Policy

February 05, 2024 — James M. Eastham - Traub Lieberman
In Naperville Hotel Partners, LLC v. Liberty Mut. Fire Ins. Co., 2023 IL App (3d) 220440-U the Illinois Third District Court of Appeals addressed whether failure to include reference to a limitations provision in reservation of rights correspondence to an insured can be deemed a waiver of the provision or otherwise estop the insurer from relying on the provision. The claim involved water damage sustained at the Insured’s motel as a result of numerous rain events that occurred between 2015 and 2020. Liberty Mutual issued an insurance policy that covered several buildings including the subject hotel. The policy required that any legal action based on the coverage had to be brought "within two (2) years after the date on which the physical damage occurred, extended by the number of days between the date you submitted the statement of loss to us and the date we deny the claim in whole or in part." Plaintiffs filed their claim with Liberty Mutual in May 2019. In June of 2019 Liberty Mutual sent a reservation of rights letter to the Insured which requested more information and listed the "immediate written notice of loss" provision as a potential basis for excluding coverage but did not list the two-year time-limitation on legal action. Liberty Mutual also did not mention the provision in subsequent communications with the Insured. Read the full story...
Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

---

First Circuit Limits Insurers’ Right to Recoup Defense Costs or Settlement Payments

April 02, 2024 — Eric Hermanson, Austin Moody & Victoria Ranieri - White and Williams LLP
Weighing in on an issue that has divided courts nationwide, the U.S. Court of Appeals for the First Circuit has ruled that an insurer under Massachusetts law has no right to recoup defense costs, or amounts the insurer pays in settlement – even if the insurer reserves rights prior to payment and obtains a ruling, after the fact, that no defense or indemnity was owed. Berkley Natl. Ins. Co. v. Atlantic-Newport Realty LLC, No. 22-1959, 2024 U.S. App. LEXIS 4115 (1st Cir. Feb 22, 2024) (“Granite Telecomm"). However, the First Circuit rested its ruling on narrow procedural grounds, which may prolong the controversy rather than resolve it. The insureds in Granite Telecomm owned a company cafeteria. They were sued by a food service worker who suffered a foot infection after being exposed to bacteria during a sewage backup. They sought coverage from their insurer, Berkley. Berkley argued that coverage was barred by a fungus and bacteria exclusion in the policy. The insureds disagreed. They threatened suit under M.G.L. ch. 93A, and demanded that Berkley defend the case. Reprinted courtesy of Eric Hermanson, White and Williams LLP, Austin Moody, White and Williams LLP and Victoria Ranieri, White and Williams LLP Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com Mr. Moody may be contacted at moodya@whiteandwilliams.com Ms. Ranieri may be contacted atranieriv@whiteandwilliams.com Read the full story...

---

If You Can’t Dazzle Em’ With Brilliance, Baffle Em’ With BS: Apprentices on Public Works Projects

October 24, 2023 — Garret Murai - California Construction Law Blog
The “Big Four” when it comes to public works contracting on state and local projects in California are:

1. Registration with the California Department of Industrial Relations (“DIR”);
2. Payment of prevailing of wages and maintenance and submission of certified payroll;
3. Compliance with the “skilled and trained workforce” requirements on certain projects; and
4. Hiring apprentices on state and local public works projects with a value of $30,000 or more.

The next case, GRFCO, Inc. v. Superior Court, 89 Cal.App.5th 1295 (2023), discusses the last of these requirements. The case also reminded me of W.C. Field’s old saying – “If you can’t dazzle em’ with brilliance, baffle em’ with bullshit” – and which ended with expected results. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

---

Government Claims Act Does Not Apply to Actions Solely Seeking Declaratory Relief and Not Monetary Relief

March 25, 2024 — Garret Murai - California Construction Law Blog
Perhaps it should come as no surprise, but public entities get special treatment under the law, and when filing a claim against a public entity, in most cases, a claimant is required to file a claim with the public entity before filing suit under the Government Claims Act (Gov. Code §810 et seq.). But, as the next case demonstrates, that’s not always the case. In Stronghold Engineering Incorporated v. City of Monterey, 96 Cal.App.5th 1203 (2023), the 6th District Court of Appeals examined whether a public works contractor that alleged an extended overhead claim was required to file a Government Claims Act claim before filing suit when its initial complaint was limited to a claim for declaratory relief. The Stronghold Case In December 2015, general contractor Stronghold Engineering Incorporated entered into a construction contract with the City of Monterey for the renovation of the City’s conference center and an adjacent city-owned plaza. The construction contract provided that any modification to the construction contract had to be approved by the City through a written change order. No surprise there. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

---

New York Court Holds Insurer Can Recover Before Insured Is Made Whole

October 24, 2023 — Gus Sara - The Subrogation Strategist
In State Farm Fire & Cas. Co. v. Tamagawa, Index No. 510977/2021, 2023 N.Y. Misc. Lexis 5434, the Supreme Court of New York considered whether an insurance carrier can settle its property subrogation lawsuit with the defendant, and discontinue the lawsuit, while the carrier’s insured still had pending claims with the carrier and claims for uninsured losses against the defendant. The court held that the carrier’s claims for the amount paid are divisible and independent of the insured’s claims and that the carrier’s settlement did not affect the insured’s right to sue for any unreimbursed losses. The court’s decision reminds us that, in New York, a carrier can resolve its subrogation claim before the insured is made whole. In June 2018, a water loss occurred in an apartment owned by Malik Graves-Pryor (Graves-Pryor). Graves-Pryor reported a claim to his property insurance carrier, State Farm Fire & Casualty Company (Carrier). Investigation into the water loss revealed that the water originated from failed plumbing pipes in another apartment unit owned by Taku Tamagawa (Tamagawa). Carrier paid its insured over $600,000 for repairs. In May 2021, Carrier filed a subrogation lawsuit against Tamagawa, alleging improper maintenance of the plumbing pipes. Read the full story...
Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

---

Illinois Supreme Court Finds Construction Defect Claim Triggers Initial Grant of Coverage

February 26, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Illinois Supreme Court found that the underlying allegations addressing construction defects were sufficient to establish "property damage" caused by an "occurrence."Acuity v. M/I Homes of Chicago, LLC, 2023 Ill. LEXIS 1019 (Ill. Nov. 30, 2023). M/I Homes was the general contractor for a residential townhome development. The Owners' Association sued for breach of conract and breach of the implied warranty of habitability against M/I Homes. The complaint alleged that M/I Homes' subcontractors caused construction defects by using defective materials, conducting faulty workmanship and failing to comply with applicable building codes. The defects included leakage and uncontrolled water with moisture in locations in the buildings where it was not intended or expected. The Association further alleged that M/I Homes did not intend to cause the construction defects nor did it expect or intend the resulting property damage, such as damage to other building materials. The complaint further
Denver Officials Clamor for State Construction Defect Law

Monitoring Building Moisture with RFID – Interview with Jarmo Tuppurainen

Risk Transfer: The Souffle of Construction Litigation

One More Mechanic’s Lien Number- the Number 30

New Mandatory Bond Notice Forms in Florida

Developers Celebrate Arizona’s Opportunity Zones

Touchdown! – The Construction Industry’s Winning Audible to the COVID Blitz

Musings: Moving or Going into a New Service Area, There is More to It Than Just…

Three's a Trend: Second, Fourth and Ninth Circuits Uphold Broad "Related Claims" Language

2019 California Construction Law Update

Professional Liability and Attorney-Client Privilege Bulletin: Intra-Law Firm Communications

Best Lawyers Recognizes Hundreds of Lewis Brisbois Attorneys, Honors Four Partners as ‘Lawyers of the Year’

Three Steps to a Safer Jobsite

Texas Supreme Court Rules That Subsequent Purchaser of Home Is Bound by Original Homeowner’s Arbitration Agreement With Builder

What a Difference a Day Makes: Mississippi’s Discovery Rule

Trends and Issues which Can Affect Workers' Compensation Coverage for Construction Companies

Housing Sales Hurt as Fewer Immigrants Chase Owner Dream

Travelers v. Larimer County and the Concept of Covered Cause of Loss

Prevailing HOAs Not Entitled to Attorneys’ Fees in Enforcement Actions Brought Under Davis-Stirling

First Suit to Enforce Business-Interruption Coverage Filed

EPA Can't Evade Enviro Firm's $2.7M Cleanup Site Pay Claim, US Court Says

Real Estate & Construction News Roundup (10/18/23) – Zillow’s New Pilot Program, Production Begins at Solar Panel Plant in Georgia, and More Diversity on Contracts
Supreme Court Set to Alter Law on Key Project, Workforce Issues

Amazon Can be Held Strictly Liable as a Product Seller in New Jersey

Does the UCC Apply to the Contract for the Sale of Goods and Services

Labor Under the Miller Act And Estoppel of Statute of Limitations

Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant

What Rich Millennials Want in a Luxury Home: 20,000 Square Feet

FEMA Administrator Slams Failures to Prepare, Evacuate Before Storms

SunCal Buys Oak Knoll Development for the Second Time

Going Digital in 2019: The Latest Technology for a Bright Future in Construction

Firm Pays $8.4M to Settle Hurricane Restoration Contract Case

Big League Dreams a Nightmare for Town

Bridges Crumble as Muni Rates at Least Since ’60s Ignored

CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions

National Lobbying Firm Opens Colorado Office, Strengthening Construction Defect Efforts

Town Concerned Over Sinkhole at Condo Complex

Massachusetts Business Court Addresses Defense Cost Allocation and Non-Cumulation Provisions in Long-Tail Context

Court Rules Planned Development of Banning Ranch May Proceed

Recovering Unabsorbed Home Office Overhead Due to Delay

Ahlers Cressman & Sleight PLLC Recognized Among The Top 50 Construction Law Firms by Construction Executive

Texas Mechanic’s Lien Law Update: New Law Brings a Little Relief for Subcontractors and a Lot of Relief for Design Professionals

Los Angeles Is Building a Future Where Water Won’t Run Out

A New Lawsuit Might Change the Real Estate Industry Forever

Actual Cost Value Includes Depreciation of Repair Labor Costs

Why You Make A Better Wall Than A Window: Why Policyholders Can Rest Assured That Insurers Should Pay Legal Bills for Claims with Potential Coverage

California Supreme Court Raises the Bar on Dangerous Conditions on Public Property Claims

OSHA Updates: You May Be Affected

New York State Trial Court: Non-Cumulation Provision in Excess Policies Mandates “All Sums” Allocation

Cal/OSHA Approves COVID-19 Emergency Temporary Standards; Executive Order Makes Them Effective Immediately

Montana Supreme Court Tackles Decade-Old Coverage Dispute Concerning Asbestos Mineworker Claims

Structural Defects Lead Schools to Close off Areas

Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?

No Coverage Under Installation Policy When Read Together with Insurance Application

60-Mile-Long Drone Inspection Flight Points to the Future

Do Not File a Miller Act Payment Bond Lawsuit After the One-Year Statute of Limitations

What Happens When Dave Chappelle Buys Up Your Town

Bert Hummel Appointed Vice Chair of State Bar of Georgia Bench & Bar Committee

Trial Court's Award of Contractual Fees to Public Adjuster Overturned

Congratulations to BWB&O’s Newport Beach Team for Prevailing on a Highly Contested Motion to Quash!

Harmon Towers Demolition Still Uncertain

Contractors Should be Aware of Homeowner Duties When Invited to Perform Residential Work

Will Claims By Contractors on Big Design-Build Projects Ever End?

Insured Under Property Insurance Policy Should Comply With Post-Loss Policy Conditions

Blue-Sky Floods Take a Rising Toll for Businesses

Crime Policy Insurance Quotes Falsely Represented the Scope of its Coverage

The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018

Cost of Materials Holding Back Housing Industry

U.S. Government Bans Use of Mandatory Arbitration Agreements between Nursing Homes and Residents, Effective November 28, 2016

The Washington Supreme Court Rules that a Holder of a Certificate of Insurance Is Entitled to Coverage

NY Is Set To Sue US EPA Over ‘Completion’ of PCB Removal

Land Planners Not Held to Professional Standard of Care