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Earth globe sitting on grass

The insured submitted a claim to Concord for damage to the insured’s home which included foundation cracks and settlement resulting in interior damage to the home.

Supreme Judicial Court of Maine Addresses Earth Movement Exclusion

Monday, March 1, 2021 — James M. Eastham - Traub Lieberman

In Bibeau v. Concord Gen. Mut. Ins. Co., 2021 WL 243867, 2021 ME 4, the Supreme Judicial Court of Maine addressed an earth movement exclusion contained in a residential homeowners policy. In 2017, the insured submitted a claim to Concord for damage to the insured’s home which included foundation cracks and settlement resulting in interior damage to the home. The insured contended that the damage was the result of a 2006 water line leak. Concord denied the claim based on the Earth Movement exclusion contained in it’s policy which precluded coverage for losses caused by earthquakes, landslides, mudslides, mudflow, subsidence, sinkholes or “[a]ny other earth movement including earth sinking, rising or shifting; caused by or resulting from human or animal forces or any act of nature”.

The insured filed suit asserting a breach of the policy and unfair claims settlement practices. According to the insured’s expert, the damage was caused by a 2006 water line leak -- which in turn caused the foundation to settle. Concord's expert, however, concluded that the settling was caused by the house being built on “unprepared or uncontrolled fill” which allowed the house to settle at different rates. Despite the disagreement regarding the cause of the settling, the parties ultimately agreed that the damage was the result of earth moving under the house's foundation. Concord moved for summary judgment and the trial court entered summary judgment for Concord, reasoning that because there was no genuine dispute that the losses were caused by “subsurface soils being undermined and earth movement,” the Earth Movement exclusion precluded coverage. The trial court further concluded that the disagreement over the cause of the settlement was not material because regardless of the cause of the earth movement, the losses were clearly excluded by the policy's Earth Movement exclusion.

Reprinted courtesy of James M. Eastham, Traub Lieberman

Mr. Eastham may be contacted at jeastham@tlsslaw.com

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Two businessmen shaking hands

Mr. Witkin was active in complex litigation, insurance disputes, and conflict resolution in numerous different states and venues throughout the United States for more than 30 years.

Gene Witkin Joins Ross Hart’s Mediation Team at AMCC

Monday, March 1, 2021 — Arbitration Mediation Conciliation Center (AMCC)

AMCC is pleased to announce Gene Witkin joining Ross Hart’s mediation team effective March 1 this year. Prior to joining our esteemed roster of neutrals, Mr. Witkin was active in complex litigation, insurance disputes, and conflict resolution in numerous different states and venues throughout the United States for more than thirty years. In 2000, he co-founded the law firm Menter & Witkin LLP that focused in large part on risk sharing and funding of large lawsuits, which gave him the diverse experience of representing both plaintiffs and defendants, as well as third-party defendants and insurance companies. Mr. Witkin completed mediator training at National Conflict Resolution Center in 2017, and is an AV Rated “Preeminent Attorney” by Martindale-Hubbell (highest rating) and “Super Lawyer” every year since 2015. He may be contacted at g.witkin@amccenter.com or through AMCC at (800) 645-4874.

Reprinted courtesy of Arbitration Mediation Conciliation Center (AMCC)



Engineers point at blueprint

The case involved a JOC contract, a JOC contractor who charged rates higher than those specified in the unit price book, and the JOC contractor’s defenses against claims by the public entity that it had overcharged for its work.

California Contractor Tests the Bounds of Job Order Contracting

Monday, March 1, 2021 — Garret Murai - California Construction Law Blog

Most contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC.

JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities.

JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor.

Reprinted courtesy of Garret Murai, Nomos LLP

Mr. Murai may be contacted at gmurai@nomosllp.com

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How Preventative Maintenance Improves Construction Worker Safety

March 1, 2021 — Talmage Wagstaff - Construction Executive

Falls are the leading cause of death in construction and can cause serious trauma to the body at minimum depending on the height the employee is falling from. It can be difficult to spot hazards on a construction site when one is looking with an untrained eye, however, a quick sweep of most any construction site will reveal a great number of machines that need to be properly maintained and calibrated in order to continue to safely operate.

From the largest tower crane to the fleet of pickups used to haul materials between jobs, there are many pieces of equipment that need to have preventative maintenance performed in order to ensure that everything runs smoothly and safely.

Reprinted courtesy of Talmage Wagstaff, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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McLaughlin v. Travelers

March 1, 2021 — Sally Kim & Kyle Silk-Eglit - Gordon & Rees Insurance Coverage Law Blog

The Washington State Supreme Court recently issued a decision that clarified whether a bicyclist is a “pedestrian” for purposes of personal injury protection (“PIP”) coverage. McLaughlin v. Travelers Commercial Ins. Co., 476 P.3d 1032 (2020).

Reprinted courtesy of Sally S. Kim, Gordon & Rees and Kyle J. Silk-Eglit, Gordon & Rees
Ms. Kim may be contacted at sallykim@grsm.com
Mr. Silk-Eglit may be contacted at ksilkeglit@grsm.com

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U.S. Housing Starts Rose to Fastest Pace Since 2006 in December

March 1, 2021 — Reade Pickert - Bloomberg

U.S. home construction starts rose in December to the best pace since late 2006 as builders responded to the robust demand for single-family housing.

Residential starts climbed by 5.8% to a 1.67 million annualized rate, according to government data released Thursday. That topped all estimates in a Bloomberg survey of economists that had a median forecast of 1.56 million and compared with an upwardly revised 1.58 million rate in November.

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ABA Insurance Coverage Litigation Committee's Virtual Seminar Kicks Off in March

March 1, 2021 — Tred R. Eyerly - Insurance Law Hawaii

This year's virtual Insurance Coverage Litigation Committee's annual seminar will begin the first week of March. The conference will be conducted over a course of three weeks, with sessions running for a couple of hours on Thursdays and Fridays. The sessions will be offered on March 3-5, 11-12, and 18-19, 2021.

The annual conference is a must for insurance coverage practitioners and, while we will miss traveling to the desert in Tucson, this year can be enjoyed from your home or office. Policyholder lawyers, carrier lawyers, judges and industry experts will offer a variety of seminars ranging from such topics as coverage for COVID-19 business interruption claims to diversity and inclusion in the insurance industry. I will co-present on a panel addressing the future of Directors and Officers coverage. As list of programs offered is here.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

March 3rd-5th, 11th-12th, and 18th-19th, 2021
Virtual Event

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Businessman holding money in hands

In American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co., the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy.

New York Appellate Division: Second Department Contradicts First Department, Denying Insurer's Recoupment of Defense Costs for Uncovered Claims

Monday, March 1, 2021 — Jasjeet K. Sahani - Saxe Doernberger & Vita, P.C.

New York law has historically allowed insurers to recoup defense costs paid on behalf of an insured if there is ultimately no coverage for the underlying action, provided that the insurer reserved its rights to seek reimbursement. On December 30, 2020, the New York Appellate Division, Second Department declined to follow this longstanding principle in American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co.,1 by holding that the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy.

In American W. Home Ins. Co., the insureds were named as defendants in an underlying personal injury action. More than four years after the accident, and a $900,000 default judgment against the insureds, they tendered the lawsuit to their commercial general liability insurer, American Western Home Insurance Company (“American”). American denied coverage based on untimely notice, but after the default judgment was subsequently vacated, it agreed to defend the underlying action subject to a reservation of rights. The reservation of rights specifically reserved American’s right to deny coverage if the vacatur of the default judgment against the insureds was reversed. Further, American reserved its right to recover the costs of defending the underlying litigation.

Reprinted courtesy of Jasjeet K. Sahani, Saxe Doernberger & Vita, P.C.

Mr. Sahani may be contacted at JSahani@sdvlaw.com

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Businessman holding contract

Attorneys Nicholas B. Brummel and Lawrence S. Zucker II analyze Organizacion Comunidad de Alviso v. City of San Jose.

Constructive Notice Established as Obstacle to Relation Back Doctrine

Monday, March 1, 2021 — Nicholas B. Brummel & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP

In Organizacion Comunidad de Alviso v. City of San Jose, the Sixth Appellate District held that the relation back doctrine was inapplicable where a plaintiff received constructive notice of a defendant’s identity months prior to the last date where filing was permitted pursuant to an applicable statute of limitations.

In Organizacion Comunidad de Alviso, Mark Espinoza, an Organizacion Comunidad de Alviso (OCA/Plaintiff) representative, asked the City of San Jose (“the city”) to place him on the public notice list for a proposed rezoning project. He also twice specifically requested a copy of the notice of determination (NOD) documenting the city’s certification of an environmental impact report (EIR) and approval of the project. Despite Espinoza diligently requesting all notices for the project, the city, in violation of the California Environmental Quality Act (CEQA), failed to send Espinoza the legally operative second NOD for the project; the first NOD was provided to OCA, but named an incorrect party in interest.

Reprinted courtesy of Nicholas B. Brummel, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP

Mr. Brummel may be contacted at nbrummel@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com


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Businesswoman holding arms up in triumph

Past recipients include governors, member of Congress, state and federal judges, and industry leaders.

Patti Santelle Honored by Rutgers School of Law with Arthur E. Armitage Sr. Distinguished Alumni Award

Monday, March 1, 2021 — Patricia Santelle - White and Williams

White and Williams is proud to announce that Patti Santelle, Chair Emeritus, will be honored by the Rutgers School of Law-Camden Alumni Association with the 2020 Arthur E. Armitage Sr. Distinguished Alumni Award. The Armitage Award was established in 1983 in memory of Armitage, who, with a group of interested citizens, founded both the South Jersey Law School in 1926 and its companion College of South Jersey in 1927. Past recipients include governors, member of Congress, state and federal judges, and industry leaders.

Patti, a 1985 graduate, is a Co-Chair of the Executive Committee of the newly established Rutgers Law Alumnae Network and a Past Chancellor and long-time member of the Board of the Rutgers-Camden Law Alumni Association. While in law school, she was President of the Student Bar Association, winner of the Hunter Advanced Moot Court Competition and a member of the National Moot Court Team. In 2010, Patti received the Scarlet Oak Meritorious Service Award from Rutgers University for her contributions as an alumni leader and student mentor at the law school. For the past seven years, she served as the Managing Partner and Chair of the Executive Committee at White and Williams, the first woman in the firm’s history and in the City of Philadelphia to serve in that role in a major law firm.

Reprinted courtesy of Patricia Santelle, White and Williams

Ms. Santelle may be contacted at santellep@whiteandwilliams.com

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CONSTRUCTION DEFECT NEWS
Glasses resting on checklist

The standards are currently updated every five years and are relied on by real estate professionals, including purchasers, lenders, title insurers and their attorneys, nationwide.

New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021

Monday, March 1, 2021 — Emily K. Bias & Josh D. Morton - Gravel2Gavel Construction & Real Estate Blog

The “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” is a document jointly promulgated by the American Land Title Association (ALTA), representing the title insurance industry, and the National Society of Professional Surveyors (NSPS), representing professional land surveyors, which describes the uniform minimum standards with which surveyors must comply when preparing a survey to be used by a title insurance company for the purpose of deleting the general survey exception from ALTA title policy forms. The first such set of standards was developed in 1962 and has since been revised 10 times. The standards are currently updated every five years and are relied on by real estate professionals, including purchasers, lenders, title insurers and their attorneys, nationwide. In October 2020, a joint committee comprising representatives of both ALTA and NSPS adopted the “2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” which will become effective on February 23, 2021. The significant changes between the 2021 standards and the previous 2016 standards are summarized below.

Survey Matters

The 2021 standards clarify that only survey-related matters must be summarized on the survey. This revision was intended to foreclose a practice common among some institutional lenders to require that the survey list all items shown in Schedule BII of the title commitment on the face of the survey regardless of whether those items may in fact be survey related. The 2021 standards also add a requirement that the surveyor include a note specifying whether the location of a right of way, easement or other survey-related matter is shown on the survey. This change incorporates common lender and purchaser requirements that were not previously enumerated in the survey standards.

Reprinted courtesy of Emily K. Bias, Pillsbury and Josh D. Morton, Pillsbury

Ms. Bias may be contacted at emily.bias@pillsburylaw.com
Mr. Morton may be contacted at josh.morton@pillsburylaw.com


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Trophy sitting on hill with green background (illustration)

Representing a wide array of clients, including Fortune 500 companies, insurance carriers, and a major metropolitan transit authority, Ms. Jones focuses her practice on insurance defense, premises liability, personal injury, and medical malpractice.

Candis Jones Named to Atlanta Magazine’s 2021 “Atlanta 500” List

Monday, March 1, 2021 — Candis Jones - Lewis Brisbois Newsroom

Atlanta Partner Candis Jones has been named to Atlanta Magazine’s 2021 “Atlanta 500” list of the most powerful business leaders in Atlanta. To compile this list, the publication reviewed nominations from the public and consulted experts across various sectors. The magazine’s editors and writers considered not only the status of the nominees within their respective organizations, but also whether the nominees were visionary by, for example, leading programs for their communities or creating opportunities for employees.

Ms. Jones is a member of Lewis Brisbois’ General Liability Practice. Representing a wide array of clients, including Fortune 500 companies, insurance carriers, and a major metropolitan transit authority, she focuses her practice on insurance defense, premises liability, personal injury, and medical malpractice. She was recently installed as the President of the Gate City Bar Association, the oldest African-American bar association in the state of Georgia, and also serves as a member of the Georgia Defense Lawyers Association and the Georgia Association of Black Women Attorneys.

Reprinted courtesy of Candis Jones, Lewis Brisbois

Ms. Jones may be contacted at Candis.Jones@lewisbrisbois.com

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Glasses lying on Payment Bond document

One of the project owner’s key tools used to ensure the process runs smoothly is the use of payment bonds and surety bonds.

Using Lien and Bond Claims to Secure Project Payments

Monday, March 1, 2021 — Jonathan Cheatham - Construction Executive

While suing in court for payment on a construction project is nothing new, the very notion of non-payment tends evokes images of hard-working contractors and subcontractors, working with tight margins, owed payment for services rendered and materials. Fortunately, for general contractors and subcontractors in the construction industry, there are better remedies for securing payment on a project before it becomes a bigger issue.

Construction projects, especially large public ones, usually include a dizzying array of general contractors, subcontractors and independent contractors, sometimes numbering more than a hundred entities. The inter-connected groups of companies working toward the goal of project completion require competent construction management in order to stay on time and on budget for completion. One of the project owner’s key tools used to ensure the process runs smoothly is the use of payment bonds and surety bonds.

Payment Bonds

Payment bonds ensure that contractors and subcontractors get paid for work performed in accordance with contract conditions. Disputes can occur before, during and even after the completion of work. Injunctive lawsuits, which contemplate the stoppage of work, would be detrimental to completing a public or private construction project of substantial size. Rather than having such minor disputes derail the entire project, the aggrieved party’s remedy is to file a claim against the payment bond, which offers a solution designed to keep the issue separate from the project’s completion. The payment bond also allows the project owner to transfer risk.

Reprinted courtesy of Jonathan Cheatham, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


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Texas Homeowners with Broken Pipes, Other Damage Face Contractor Delays

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CONSTRUCTION DEFECT NEWS
Scales of justice

Just because the insurer is defending its insured does not mean it will be indemnifying its insured for damages asserted in the third-party claim.

Allocating Covered and Uncovered Damages in Jury Verdict

Monday, March 1, 2021 — David Adelstein - Florida Construction Legal Updates

When a liability insurer defends an insured from a third-party claim, they oftentimes do so under a reservation of rights. A reservation of rights letter is issued to the insured that identifies certain coverage exclusions or reservations relative to the insurance policy that may impact the insurer’s duty to indemnify the insured for damages. In other words, just because the insurer is defending its insured does not mean it will be indemnifying its insured for damages asserted in the third-party claim.

Under Florida law, the party claiming insurance coverage has the initial burden to show that a settlement or judgment represents damages that fall within the coverage provisions of the insurance policy. An insured’s inability to allocate the amount of a judgment between covered and uncovered damages is therefore generally fatal to its indemnification claim. However, the burden of apportioning or allocating between covered and uncovered damages in a general jury verdict may be shifted to the insurer if the insurer did not adequately make known to the insured the availability and advisability of a special verdict.

QBE Specialty Ins. Co. v. Scrap Inc., 806 Fed.Appx. 692, *695 (11th Cir. 2020) (internal citations omitted).

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Costs Benefits buttons

Gjonaj Realty was sued by Viktor Gecaj when he fell from a ladder at the premises managed by Gjonaj Realty.

New York Court Finds Insurers Cannot Recover Defense Costs Where No Duty to Indemnify

Monday, March 1, 2021 — Tred R. Eyerly - Insurance Law Hawaii

In a case of first impression, the Supreme Court of New York, Appellate Division, found the insurer had no right to reimbursement of defense costs paid to defend the insured. Am. W. Home Ins. Co. v. Gjoaj Realty & Mgt. Co., 2020 N.Y. App. Div. LEXIS 8286 (N.Y. App. Div. Dec. 30, 2020).

Gjonaj Realty was sued by Viktor Gecaj when he fell from a ladder at the premises managed by Gjonaj Realty. The matter was not tendered to American Western Home Insurance Company until four years after the accident and after a judgment of $900,000 had been entered against Gjonaj Realty after its default. American denied coverage after late notice was given. Thereafter, the Supreme Court in the underling action vacated the default judgment. American then agreed to defend under a reservation of rights.

The Appellate Division reversed the vacatur of the default judgment and reinstated the default against the insured. American then advised Gjonaj Realty that it was denying coverage and reserving its right to recover any fees and costs incurred in defending the underlying action.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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

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Firefighters with fire in background

U.K.’s biggest house builder sets aside more than $100 million.

U.K. to Set Out Plan for Fire-Risk Apartment Cladding Crisis

Monday, March 1, 2021 — Emily Ashton & Olivia Konotey-Ahulu - Bloomberg

The U.K. government will set out its plans for stripping cladding from potentially unsafe apartment blocks, more than three years after a fire at London’s Grenfell Tower killed 72 people.

Reports suggest Housing Secretary Robert Jenrick will set out a package of measures amounting to billions of pounds when he makes a statement to the House of Commons on Wednesday.

Ministers announced a 1.6 billion pound ($2.2 billion) “safety fund” to remove dangerous cladding last year but Jenrick is expected to announce additional support on top of this. The price for the repairs could be as high as 15 billion pounds, according to a parliamentary committee last June.

Reprinted courtesy of Emily Ashton, Bloomberg and Olivia Konotey-Ahulu, Bloomberg



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Businessman signing document

The firm will lead construction of the A-2 Stormwater Treatment Area.

Phillips & Jordan Awarded $176M Everglades Restoration Contract

Monday, March 1, 2021 — Thomas F. Armistead - Engineering News-Record

Construction of the next major project for the Everglades Agricultural Area Reservoir south of Lake Okeechobee is set to begin in April following the South Florida Water Management District's award of a $175.8-million lump-sum contract to Phillips and Jordan Inc.

Reprinted courtesy of Thomas F. Armistead, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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