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CONSTRUCTION DEFECT NEWS

Wildfires Threaten to Make Home Insurance Unaffordable

Wednesday, January 10, 2018 — Christopher Flavelle – Bloomberg

More frequent and intense wildfires are making it harder for homeowners to find and keep insurance in California, a state regulator warned Thursday.

Reprinted courtesy of Christopher Flavelle, Bloomberg

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No Coverage for Building's First Collapse, But Disputed Facts on Second Collapse

Wednesday, January 10, 2018 — Tred R. Eyerly – Insurance Law Hawaii

While building's first collapse was not covered, there were disputed facts regarding the second collapse, leading to a reversal of the order granting summary judgment to the insurer on both collapses. Intergroup Int'l Ltd. v. Cincinnati Ins. Cos, 2017 Ohio app. LEXIS 5099 (Ohio Ct. App. Nov. 22, 2017). Intergroup bought a building after it was inspected. While leaks on the roof were repaired and a roof truss that was sagging was replaced, the inspector found the roof to be in good shape.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

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

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2018 California Construction Law Update

Wednesday, January 10, 2018 — Garret Murai – California Construction Law Blog

The California State Legislature introduced 2,495 bills during the first year of the 2017-2018 Legislative Session. Of these, 859 were signed into law.

While much political attention was focused on several California laws that could be viewed as California’s rebuke of Washington, including California’s legalization of marijuana, enactment of “sanctuary state” legislation, and bills focused on climate change, 2017 also saw the enactment of a package of bills intended to address the state’s housing affordability crises (for a great summary of these bills see Wendel Rosen’s Landuse Group’s recent article Slate of New Housing Bills Takes Effect January 1, 2018 ), as well as a range of other bills of interest to the construction industry including bills related construction financing, alternative project delivery methods, and solar construction.

Each of the bills discussed below took effect on January 1, 2018, except as otherwise stated.

Reprinted courtesy of Garret Murai, Wendel, Rosen, Black, Dean, LLP

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

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New Customer Service Role Raises Client Advocacy to Its Highest Level

January 10, 2018 — Jim Parsons - ENR

It’s the rare construction firm that doesn’t pride itself on putting customers first. But are those customers getting what they truly want? And when employees are asked to go the extra mile on a project, are they clear about where to go?

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Gunshot Wound Covered When Not Expected or Intended

January 10, 2018 — Tred R. Eyerly – Insurance Law Hawaii

The court reversed the trial court, finding there was an occurrence when injury occurred from a gun wound resulting from a fight. Erie Ins. Exh. v. Moore, 2017 Pa. Super. LEXIS 957 (Pa. Super. Ct. Nov. 22, 2017).

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

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Las Vegas's Economy Is on the Brink of a Boom

January 10, 2018 — Conor Sen - Bloomberg

What U.S. city will boom in 2018? If you're placing bets, you'd look for a place still suffering a hangover from the housing bust, with subdued economic activity and a lack of excess for a decade. You'd want to find an economy where demand is starting to exceed supply in a significant way, with price signals and economic activity responding. And with the U.S. economy as a whole starting to feel a bit frothy, you'd try to identify a place that benefits from American exuberance. In other words, you'd look for Las Vegas.

You can contact Mr. Sen on twitter @Conorsen

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Live Webinar January 17th

January 10, 2018 — Meg Scane – CDJ STAFF

Earn AIA, CLE, ENG, and ICC credits by attending this live webinar which, “is designed for engineers, architects, construction and project managers, contractors, subcontractors, presidents, vice presidents, construction professionals and attorneys.” The webinar covers the following topics: “The Role of the Parties to a Construction Project: Initial Responsibilities to or For the Plans and Specifications, The Pre-Bid, Bid or Negotiation Process, Contractual and Implied Liabilities Surrounding the Plans and Specifications, and Documenting Your Claims or Defenses”

January 17th, 2017, 1:00-2:30pm EST

Live Webinar

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Does a Contractor (or Subcontractor) Have to Complete its Work to File a Mechanics Lien

Wednesday, January 10, 2018 — Wally Zimolong - Zimolong LLC

Yes. There seems to be common misconception that a contractor, subcontractor, or supplier, has six months from its last day of work on the project to file a mechanics lien. I frequently see mechanics liens whereby the claimant states “Claimants last day of work on the project was X.” However, Section 1502 (49 P.S. Section 1502) of the Pennsylvania Mechanics Lien is clear that a lien must be filed within six month of “the completion of his work.” Under the Lien Law, “completion of the work” is a defined term and means “means performance of the last of the labor or delivery of the last of the materials required by the terms of the claimant’s contract or agreement, whichever last occurs.”

Reprinted courtesy of Wally Zimolong, Zimolong LLC

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Ohio Court of Appeals: Absolution Pollution Exclusion Bars Coverage for Workplace Coal-Tar Pitch Exposure Claims

Wednesday, January 10, 2018 — Complex Insurance Coverage Reporter

On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942.

Reprinted courtesy of White and Williams LLP
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Hiring Subcontractors with Workers Compensation Insurance

Wednesday, January 10, 2018 — David Adelstein - Florida Construction Legal Updates

You want to hear more on the POWER of statutory workers compensation immunity? Well, here it is, because as I have mentioned in the past, workers compensation immunity is powerful reinforcing the importance for contractors to ensure the subcontractors they hire absolutely have workers compensation insurance. Likewise, subcontractors want to ensure the subcontractors they hire also have workers compensation insurance.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

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CONSTRUCTION DEFECT NEWS

Case Alert Update: SDV Case Tabbed as One of New York’s Top Three Cases to Watch

Wednesday, January 10, 2018 — Richard W. Brown - SDV Blog

Argument before the Court of Appeals has now been scheduled for February 7, 2018, in Gilbane Building Co. v. St. Paul Insurance, with a long anticipated decision by New York’s highest court to be issued shortly thereafter. In its September 18, 2017 edition, Law360.com highlighted three major cases with significant implications on insurance coverage that will soon be decided by the New York Court of Appeals. Gilbane presents an opportunity for the Court to address the growing number of divergent decisions regarding the prerequisites for qualifying as an additional insured, as it considers an Appellate Division’s holding that a construction manager is not entitled to coverage as an additional insured under a contractor’s policy because the two companies did not enter into a direct contract.

Reprinted courtesy of Richard W. Brown, Saxe Doernberger & Vita, P.C.

Mr. Brown may be contacted at rwb@sdvlaw.com

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Is the Issuance of a City Use Permit Referable? Not When It Is an Administrative Act

Wednesday, January 10, 2018 — Adam E. Lang - Real Estate Litigation Blog

Arizona’s Constitution gives electors in cities, towns, and counties the ability to refer legislation that was enacted by their local elected officials to the ballot for popular vote. Ariz. Const. art. IV, Pt. 1 § 1(8). But only legislative acts are referable; administrative acts are not. In general, a legislative act makes new law and creates policy, is permanent in nature, and is generally applied. On the other hand, an administrative act is one that executes and implements a law already in place. Wennerstrom v. City of Mesa, 169 Ariz. 485, 489-90, 821 P.2d 146, 150-51 (1991).

For more than fifty years, Arizona courts have been clear: zoning and rezoning ordinances are legislative acts and therefore referable to popular vote. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 609 (1961) (holding that “what constitutes an appropriate zone is primarily for the legislature”); Fritz v. City of Kingman, 191 Ariz 432, 432, 957 P.2d 337, 337 (1998) (noting “we reaffirm our view that zoning decisions are legislative matters subject to referendum”); Pioneer Trust Co. of Arizona v. Pima Cty., 168 Ariz. 61, 64–65, 811 P.2d 22, 25–26 (1991) (holding “that, in Arizona, zoning decisions are legislative acts subject to referendum” and that even a “conditional approval of . . . rezoning was a legislative act”); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 653 P.2d 694 (1982) (analyzing whether zoning referendum complied with statutory requirements); Wait v. City of Scottsdale, 127 Ariz. 107, 108, 618 P.2d 601, 602 (1980) (noting “that the enactment and amendment of zoning ordinances constitute legislative action”); City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) (“The matter of zoning is appropriately one for the legislative branch of government.”); Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Sup’rs, 108 Ariz. 449, 452, 501 P.2d 391, 394 (1972) (denying an attempt to enjoin referendum on county’s zoning decision).

Reprinted courtesy of Adam E. Lang, Snell & Wilmer

Mr. Lang may be contacted at alang@swlaw.com

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Texas Supreme Court to Rehear Menchaca Bad Faith Case

Wednesday, January 10, 2018 — Sean P. Mahoney – Complex Insurance Coverage Reporter

On December 15th, the Texas Supreme Court agreed to revisit its April 7, 2017 decision in USAA Texas Lloyds Co. v. Menchaca, No. 14-0721, a “bad faith” case arising out of Hurricane Ike damage, in which the court held that a policyholder could potentially recover policy benefits for statutory bad faith under Texas law, even though a jury concluded that the insurer did not breach the terms of the policy, if the policyholder could show that she was nevertheless entitled to the benefit. The decision to rehear this matter comes at the urging of insurers and interested groups, including the Insurance Council of Texas and the U.S. Chamber of Commerce, who argued that the April 7, 2017 ruling substantially unsettled Texas insurance law.

Menchaca is a first-party property insurance coverage case. After Hurricane Ike struck in 2008, plaintiff Menchaca submitted a claim under her homeowners policy to USAA. A USAA adjuster later concluded that Menchaca’s property suffered only “minimal damage” that fell below the deductible. Menchaca sued claiming breach of contract and unfair claims settlement practices in violation of the Texas Insurance Code. As damages, she sought only the policy benefit, court costs, and attorneys’ fees.

Reprinted courtesy of Sean P. Mahoney, White and Williams LLP

Mr. Mahoney may be contacted at mahoneys@whiteandwilliams.com

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Housing Boom in Dallas, Texas

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CONSTRUCTION DEFECT NEWS

No Coverage Where Cracks in Basement Walls Do Not Amount to Sudden Collapse

Wednesday, January 10, 2018 — Tred Eyerly - Insurance Law Hawaii

In another of a series of collapse cases arising out of Connecticut, the federal district court found there was no coverage for the homeowner's cracked basement wall caused by defective concrete. Liston-Smith v. CSAA Fire & Cas. Ins. Co., 2017 U.S. Dist. LEXIS 206211 (D. Conn. Dec. 15, 2017).

Reprinted courtesy of Tred Eyerly, Insurance Law Hawaii

Tred Eyerly may be contacted at te@hawaiilawyer.com

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Cutting the Salt Out: Tips for Avoiding Union Salting Charges

Wednesday, January 10, 2018 — Wally Zimolong - Zimolong LLC

The strategy to avoid union salts is rather simple. But, simplicity does not mean easy. The process requires discipline. A salt is a paid union organizer that attempts to gain employment with a non-union employer for the purpose of either (a) organizing the employers workforce or (b) bringing a costly unfair labor practice charge for discriminatory hiring practices.

A “covert salt” is someone who conceals his union affiliation in order to gain employment with a non-union employer for the purpose of starting a union organizing campaign. Actually, conceal is an understatement. Covert salts actively lie to gain employment with a non-union employer. Covert salts apply for jobs under false names, social security numbers, and use bogus resumes.

Reprinted courtesy of Wally Zimolong, Zimolong LLC

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Does Arbitration Apply to Contemporaneously Executed Contracts (When One of the Contracts Does Not Have an Arbitration Provision)?

Wednesday, January 10, 2018 — David Adelstein - Florida Construction Legal Updates

Binding arbitration is an alternative to litigation. Instead of having your dispute decided by a judge and/or jury, it is decided by an arbitrator through an arbitration process. Arbitration, however, is a creature of contract, meaning there needs to be a contractual arbitration provision requiring the parties to arbitrate, and not litigate, their dispute. Just like litigation, there are pros and cons to the arbitration process, oftentimes dictated by the specific facts and legal issues in the case.

What happens when a person executes two (or more) contemporaneous contracts, one with an arbitration provision and one without? Are the parties required to arbitrate the dispute arising out of the contract that does not contain the arbitration provision?

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

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Florida Supreme Court: Notice of Right to Repair is a CGL “Suit,” SDV Amicus Brief Supports Decision

Wednesday, January 10, 2018 — Gregory Podolak & Brian Clifford - SD&V Case Alert

Construction policyholders in Florida have been given substantial ammunition to compel general liability insurers to provide a defense against pre-suit accusations of defective work. Florida is one of approximately thirty (30) states that require property owners to serve contractors with notice and an opportunity to repair construction defects before filing suit. Only a few states have addressed whether a CGL policy should provide a defense for similar processes. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., decided late in December by the Florida Supreme Court, acknowledged that the 558 process is a “suit,” thus impeding insurers from refusing a defense during this notice period.

Section 558.004(1), Florida Statutes (2012) requires a property owner alleging construction defects to serve a written notice to repair on the contractor before filing an action in court. Altman Contractors built a condominium in Broward County, Florida. In 2012, the condominium owners alleged defects in accordance with Section 558. Altman demanded that its general liability carrier, Crum & Forster, defend and indemnify it against the 558 notices. Crum & Forster denied coverage, claiming that 558 notices are not a “suit” as defined by the policy.

Reprinted courtesy of Gregory Podolak, Saxe Doernberger & Vita, P.C. and Brian Clifford, Saxe Doernberger & Vita, P.C.
Mr. Podolak may be contacted at gdp@sdvlaw.com
Mr. Clifford may be contacted at bjc@sdvlaw.com



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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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