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    Alabama Builders Right To Repair Current Law Summary:

    Current Law Summary: Although there is case law precedent for right to repair, Title 6 Article 13A states action must be commenced within 2 years after cause and not more than 13 years after completion of construction.

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    Tallapoosa Co Home Builders Association
    Local # 0186
    714 Commerce Drive
    Alexander City, AL 35010
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    Home Builders Association of Tuscaloosa
    Local # 0188
    2009 Paul W Bryant Dr
    Tuscaloosa, AL 35401

    Taylor Alabama Construction Expert Witness 10/ 10

    Chilton County Home Builders Association
    Local # 0117
    209 Parliament Parkway
    Maylene, AL 35114
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    Lee Co Home Builders Association
    Local # 0136
    528 Lafayette Pl
    Auburn, AL 36830
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    Local # 0172
    1808 Opelika Road
    Phenix City, AL 36867
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    Local # 0116
    5000 Grantswood Road Ste 240
    Irondale, AL 35210

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    Local # 0164
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    Montgomery, AL 36117

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    Leveraging from more than 7,000 construction defect and claims related expert witness designations, the Taylor, Alabama Construction Expert Witness Group provides a wide range of trial support and consulting services to Taylor's most acknowledged construction practice groups, CGL carriers, builders, owners, and public agencies. Drawing from a diverse pool of construction and design professionals, BHA is able to simultaneously analyze complex claims from the perspective of design, engineering, cost, or standard of care.

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    Where There's Smoke...California's New Emergency Wildfire Smoke Protection Regulation And What Employers Are Required To Do

    August 26, 2019 —
    California employers need to pay heed to the recently announced California Division of Occupational Safety and Health Standards Board (Cal/OSHA) emergency regulation related to their duty to protect employees from the potential harm caused by wildfire smoke. As of July 29, 2019, employers are required to actively monitor their local Air Quality Index (AQI) and take steps to protect their employees from the harmful particulate matter contained within wildfire smoke. Which Workplaces Are Impacted? The regulation applies to all workplaces exposed to wildfire smoke with an AQI level of 151 or greater (ranging from "unhealthy" to "hazardous"). "Exposed" workplaces are those that are not in enclosed buildings, structures, or vehicles with mechanical ventilation and the ability to close all windows and doors. Outdoor occupations including construction, agriculture, landscaping, maintenance, commercial delivery, and others that expose the worker to the outside air for more than one hour will be the most impacted by this new regulation, although firefighters engaged in fighting wildfires are expressly exempt from the statute. What If I Have A Potentially Exposed Workplace? Employers with outdoor workplaces that are exposed to wildfire smoke are required to monitor the AQI before each shift, and "periodically throughout the day," all to ensure that the Air Quality Index for PM2.5 (particulate matter with an aerodynamic diameter of 2.5 micrometers or smaller) remains below 151. This can be done by visiting certain governmental websites, including U.S. Environmental Protection Agency's AirNow website (, which allow for regular email alerts to be issued to the employer. An employer with a potentially exposed workplace must also set up a communication system capable of communicating to all affected employees (in a language readily understood) the status of wildfire smoke hazards. The communication system must also provide the employees a process to inform the employer of worsening air quality and/or any adverse symptoms that they may be experiencing (e.g., asthma or chest pain). Finally, employers are required to add to their Injury and Illness Protection Program (IIPP) the provision of effective training and instruction (i.e., approximately 15 minutes) regarding:
    1. the health effects of wildfire smoke;
    2. the right to obtain medical treatment without fear of reprisal;
    3. how employees can obtain the current AQI for PM2.5;
    4. the requirements of this regulation;
    5. the employer's communication system regarding wildfire smoke;
    6. the employer's methods for protecting employees from wildfire smoke;
    7. the importance, limitations, and benefits of using a respirator when exposed to wildfire smoke; and
    8. the proper use and maintenance of respirators.
    The Required Provision of Respiratory Protective Equipment Employers with exposed workplaces are required to provide effective NIOSH-approved respirators (e.g., N95 filtering facepiece respirators) when AQI for PM2.5 levels are 151-200 (unhealthy), 201-300 (very unhealthy), or 301-500 (hazardous). The N95 respirator typically costs less than a dollar per mask and can be easily purchased online. Employers are also required to clean, store, and maintain these respirators for times of need. Employees are free to decide whether to use a respirator when the AQI for PM2.5 level is between 151-500, although employers must be prepared to offer the equipment at an AQI level of 151 or higher. Use of the respirator by an employee exposed to an AQI for PM2.5 level that exceeds 500, however, is required by law. What Should Potentially Exposed Employers Do Now? Employers should immediately begin supplementing their IIPP platforms to include this regulation's prescribed training regarding wildfire smoke. Companies should also develop an adequate monitoring and communication plan regarding wildfire smoke hazards and effectively train their supervisors on the same. Finally, acquiring an adequate supply of N95 filtering respirators now will help ensure that employers are prepared for the next wildfire. Michael Studenka is a partner in Newmeyer Dillion's Labor & Employment practice group. His practice focuses on the life cycle of Employment law. Mike advises and trains companies on proactive measures to keep them protected and in compliance, and leverages his significant trial experience when faced with litigation. You can reach out to him at Read the court decision
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    Insurer Not Required to Show Prejudice from an Insured’s Late Notice When the Parties Contract for a Specific Reporting Period

    September 09, 2019 —
    The Fifth Circuit Court of Appeals recently affirmed an order granting summary judgment in favor of the Firm’s insurer client on an issue of first impression in Texas. The issue before the trial court was whether, under Texas law, an insurer is required to demonstrate prejudice resulting from an insured’s failure to comply with an agreed term set in an endorsement to the parties’ insurance contract establishing a specific time limit for an insured to give the insurer notice of a claim. The case involved alleged damage to an insured’s commercial property from a hailstorm. The insured did not report the alleged loss to its insurer until approximately 17 months after the date of loss. The insurer denied the claim based on a one-year notice requirement in a policy endorsement. The Texas Windstorm or Hail Loss Conditions Amendment Endorsement stated that:
    In addition to your obligation to provide us with prompt notice of loss or damage, with respect to any claim where notice of the claim is reported to us more than one year after the reported date of loss or damage, this policy shall not provide coverage for such claims.
    The insured sued the insurer in Houston federal court, alleging causes of action for breach of contract and violations of the Texas Insurance Code. The insured argued the insurer was required to show prejudice from the insured’s late notice; the insurer argued that a showing of prejudice was not required. The trial court recognized that this issue had not been decided by the Texas Supreme Court of the Fifth Circuit Court of Appeals. Read the court decision
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    Reprinted courtesy of Christopher Raney, Gordon & Rees Scully Mansukhani
    Mr. Raney may be contacted at

    Amendments to California Insurance Code to Require Enhanced Claims Handling Requirements for Claims Arising Out Of Catastrophic Events

    September 04, 2019 —
    Senator Bill Dodd, who represents Napa County and surrounding areas in the California Senate, has recently introduced Senate Bill 240, known colloquially as The Insurance Adjuster Act of 2019. S.B. 240 would amend the California Insurance Code to streamline and organize claim processing, particularly during a state of emergency / catastrophic events. The proposal is in response to a series of devastating wildfires which ravaged the Sonoma County and Napa Valley wine country during the 2017 fire season (Atlas, Tubbs, and Nun fires). Many of Senator Dodd’s constituents reported difficulty in navigating the claim process due to multiple claim professionals handling a single claim, many of whom were outside of California, and many of whose capabilities were challenged. S.B. 240 would direct the Department of Insurance to issue annual notices setting forth legal developments as they relate to property insurance policies, including best practices for evaluating damage caused by an emergency, and requires out-of-state claims professionals to certify, under penalty of perjury, that they have read these notices along with claim adjusting literature also prepared by the Department of Insurance. S.B. 240 would also require insurers to designate a primary point of contact for their customers during a state of emergency until the claim is closed or litigation is initiated. While the proposed legislation would not prohibit multiple claims professionals handling a single claim, it would provide for training standards issued by the Department of Insurance on how best to handle claims in a state of emergency. Further, S.B. 240 would require claims professionals who are not licensed in California (1) to be supervised by a licensed California claims professional, and (2) to read and understand the annual emergency claim adjusting literature issued by the Department of Insurance within 15 calendar days of beginning adjusting of claims in California. The bill passed the Senate by unanimous vote and is pending in the Assembly. The bill is also supported by Insurance Commissioner Ricardo Lara. Accordingly, the bill is expected to pass the Legislature. Once enacted, S.B. 240 would significantly elevate claim adjusting requirements related to emergencies, such as natural disasters, by placing greater oversight in the Department of Insurance, and greater responsibility on claims professional within and outside of California. How pragmatic these requirements are and what practical impact they will have on the industry are developments which we will follow and provide further commentary as this bill makes its way through the California legislature and into the California Insurance Code. Reprinted courtesy of Jon A.Turigliatto, Chapman Glucksman Dean Roeb & Barger and Ravi R. Mehta, Chapman Glucksman Dean Roeb & Barger Mr. A.Turigliatto may be contacted at Mr. Mehta may be contacted at Read the court decision
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    Walking the Tightrope of SB 35

    December 22, 2019 —
    Developers in California know that getting approval to build new housing projects can be extremely difficult, time-consuming, and expensive. But a new policy is finally coming into full effect which could help developers cut through those barriers. SB 35, enacted in 2017, streamlines the approval process for housing developments in areas with inadequate housing supply, so long as the developments meet certain criteria. We have written elsewhere about the initial impacts of SB 35. SB 35 has successfully allowed some developers to obtain their entitlements quickly and easily through a streamlined process, but some local governments have resisted the use of SB 35. For example, the City of Los Altos denied an application that attempted to obtain streamlining through SB 35, prompting a nonprofit housing organization to sue. In Cupertino, the Planning Commission Chairman advocated in April 2019 for rescinding the SB 35 approval of the redevelopment of the Vallco Mall, which would include over 2,400 units of housing, while some residents have sued to block the development. As a result, it is crucial for developers to understand the details of SB 35 and make sure to meet all of its requirements. Any misstep may allow a recalcitrant local government to deny that a development project qualifies for SB 35 treatment and attempt to block it. In November 2018, the state Department of Housing and Community Development (HCD) released Guidelines to clarify the criteria for SB 35 and assist cities in determining whether projects qualify for streamlining. Reprinted courtesy of Pillsbury attorneys Robert Howard, Alexander Walker and Matt Olhausen Mr. Howard may be contacted at Mr. Walker may be contacted at Mr. Olhausen may be contacted at Read the court decision
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    Consequential Damages Can Be Recovered Against Insurer In Breach Of Contract

    July 22, 2019 —
    In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.” Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted). Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract. In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent. However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties. Read the court decision
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    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at

    Philadelphia Enacts Commercial Property Assessed Clean Energy (C-PACE) Program

    October 21, 2019 —
    On August 14, 2019, Mayor Jim Kenney signed a bill authorizing, through C-PACE loans, the financing of clean energy, alternative energy and water conservation projects for eligible commercial properties in Philadelphia. Philadelphia City Council unanimously voted to approve the C-PACE program on June 20, 2019. The program will be administered by the Philadelphia Energy Authority. Third-party capital providers (not the Philadelphia Energy Authority) will originate C-PACE financings for qualified projects. C-PACE “assessments” will encumber the applicable property in a first lien position akin to a real estate tax. Documentation among the property owner, the City of Philadelphia, and the third party capital provider (identified in the ordinance as the “financial institution”) will provide, among other things, that the assessments will be payable and fully amortize over the term of the financing (i.e., 30 years) and will not be accelerated during its term. Importantly, before a C-PACE financing can be originated and the underlying property assessed, notice of the property owner’s desire to secure C-PACE financing under the program must be provided to the holder of a mortgage on the subject property and the holder of the mortgage must provide the property owner and the City of Philadelphia with its written consent. Without the mortgage lender’s consent, the C-PACE financing cannot be consummated. Reprinted courtesy of Timothy Davis, White and Williams LLP and William Johnston, White and Williams LLP Mr. Davis may be contacted at Mr. Johnston may be contacted at Read the court decision
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    Insurer Must Defend Additional Insured Though Its Insured is a Non-Party

    November 18, 2019 —
    The plaintiff insurer's motion for partial summary judgment seeking an order that defendant insurer was obligated to defend a non-party as an additional insured was granted. Am Empire Surplus Lines Ins. Co. v. Burlington Ins. Co., 2019 N. Y. Misc. LEXIS 4145 (N. Y. Sup. Ct. July 25, 2019). Quality Building Construction, LLC was the contractor hired to work on exterior facade of a building owned by Central Park West Corporation. The underlying complaint alleged that Quality caused plastic spacers and pedestals used for the penthouse terrace to fall down the roof drain riser. A clog and rainwater backup resulted in water damage to apartment 8A. The resulting damage was allegedly due to the clogged roof drain riser. Quality subcontracted the work to Mega State, Inc. The subcontract required Mega to indemnify and hold Quality harmless against claims in connection with Mega's work, as well as name Quality as an additional insured on a primary, non-contributory bases under Mega's CGL policy. Burlington issued a policy to Mega naming Quality as an additional insured. American Empire issued a CGL policy to Quality. Quality was sued in the underlying action, but Mega was not. American Empire tendered a demand for coverage to Mega and Burlington, relying on the agreement between Quality and Mega. Burlington responded that Mega was not liable for the alleged damages. American Empire sued Burlington. Subsequently, Burlington accepted the tender to defend Quality in the underlying action, and reserved rights as to whether Burlington's policy was primary and on the question of indemnification. American Empire agreed to withdraw its suit if Burlington would modify its reservation of rights. Burlington refused. Read the court decision
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    Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
    Mr. Eyerly may be contacted at

    Jury Finds Broker Liable for Policyholder’s Insufficient Business Interruption Limits

    January 06, 2020 —
    After a four-day trial, an Arizona federal jury found that Western Truck Insurance Services, Inc., an insurance broker, was negligent in selling Madison Alley Transportation and Logistics Inc. a business interruption policy with inadequate annual limits. Based on its finding of negligence, the jury determined that the broker was liable for $685,000 of $1,000,000 in damages suffered by Madison Alley as a result of a flood in its warehouse. The verdict and Complaint, filed in Arizona state court before the case was removed, can be found here and here. In June 2016, a subtenant in Madison Alley’s warehouse broke a sprinkler line while operating a forklift, causing the warehouse to flood. The warehouse was used to store and deliver retail display goods, and Madison Alley was unable to do business during the five months of repairs. Madison Alley sought coverage under a business interruption policy it had purchased through Western Truck, but the policy’s $20,000 limit was not enough to cover its approximately $1,480,000 in losses. Madison Alley sought coverage under a business interruption policy it had purchased through Western Truck, but the policy’s $20,000 limit was not enough to cover its approximately $1,480,000 in losses. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at Ms. Spatz may be contacted at Read the court decision
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