Leonard Fadeeff v. State Farm General Insurance Company

Fire and smoke burning on dry fields

The CA Court of Appeal reversed the entry of summary judgment in favor of State Farm in connection with a smoke and soot damage claim made by the Fadeeffs for damage sustained by their home due to the 2015 Valley Fire.

September 21, 2020
Michael Velladao - Lewis Brisbois

In Fadeeff v. State Farm Gen. Ins. Co., 50 Cal.App.5th 94 (May 22, 2020), the California Court of Appeal reversed the entry of summary judgment in favor of State Farm General Insurance Company (“State Farm”) in connection with a smoke and soot damage claim made by Leonard and Patricia Fadeeff (the “Fadeeffs”) for damage sustained by their home due to the 2015 Valley Fire. The parties’ dispute arose out of the Valley Fire, which took place in Lake County, California. The Fadeeffs’ home was located in Hidden Valley Lake.

The Fadeeffs submitted a claim to State Farm under their homeowners policy. Initially, after an adjuster inspected the home and noted that it was “well maintained” with no apparent maintenance issues, State Farm made a series of payments and arranged for ServPro to clean the smoke and soot damage. Subsequently, the Fadeeffs retained an independent adjuster and submitted a supplemental claim in the amount of $75,000. State Farm retained a different unlicensed adjuster to investigate the claim and retained expert, Forensic Analytical Consulting Services (FACS) to inspect the Fadeeffs’ home, and another company referred to as HVACi, to inspect the Fadeeffs’ HVAC system.

The independent adjuster used to investigate the Fadeeffs’ supplemental claim failed to follow company guidelines in connection with using experts, which required specific questions to be addressed by the expert. In addition, FACS only took surface samples of the walls in the Fadeeffs’ home. Ultimately, the reports prepared by FACS and HVACi concluded that no additional work was required to remediate the damage sustained by the Fadeeffs’ home. Thereafter, State Farm denied the Fadeeffs’ supplemental claim.

Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com


COVID-19: The Catalyst to Permanently Transform Construction Safety With Live Field Data

September 21, 2020
Mike Merrill - Construction Executive

Construction is considered an essential service, which is why many projects have continued to hum along even as large portions of the economy have shut down. And while some projects may slow or experience delays from budgetary constraints, experts forecast that the construction industry could soon be busier than ever. Still, amidst the uncertainty of COVID-19 is a silver lining: construction companies now have the opportunity to examine safety processes and update their technology and operations in ways that will positively affect their businesses for years to come.

The 2020 FMI Industry Report shows 66% of firms believe that maintaining a safe worksite is the number one concern for their future success. Now, since the advent of COVID-19, safety managers must do everything they can to protect their workforces, which is where technology comes in.

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

Mr. Merrill may be contacted at Mike@abouttimetech.com


Hundreds of Coronavirus Coverage Cases Await Determination on Consolidation

Woman lying next to clock

The action in Pigment Inc. v. Hartford Fin. Servs. Group stayed pending the JPML's decision on consolidation.

September 21, 2020
Tred R. Eyerly - Insurance Law Hawaii

On July 30, 2020, the Judicial Panel on Multi-District Litigation (JPML) heard oral argument on the potential consolidation of all federal cases involving business interruption coverage relating to coronavirus and shut-down orders. A decision will be rendered in the near future.

Meanwhile, many cases are on hold, waiting for a determination on consolidation. One such case is Pigment Inc. v. Hartford Fin. Servs. Group, 2020 U.S. Dist. LEXIS 133230 (S.D. Cal. July 27, 2020), where the court granted a stay pending a decision by the JPML. The case is a class action based on denial of coverage under business interruption insurance. Plaintiff's case alleged a bad faith denial that risked the permanent closure of its business due to unexpected temporary shutdowns from the COVID-19 pandemic. Plaintiff sought a stay pending the decision of the JPML.

The court considered the possible damage which could result from granting a stay, the hardship which a party could suffer in being required to go forward, and the orderly course of justice measured by the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.

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


Fifth Circuit Holds Insurer Owes Duty to Defend Latent Condition Claim That Caused Fire Damage to Property Years After Construction Work

Construction workers drilling outside

When analyzing coverage for a construction defect claim, it is important to ascertain the date on which damage occurred. Of course, the plaintiffs’ bar crafts pleadings to be purposefully vague as to the date (or period) of damage to property.

September 21, 2020
Jeremy S. Macklin - Traub Lieberman

Most general liability policies only provide coverage for “property damage” that occurs during the policy period. Thus, when analyzing coverage for a construction defect claim, it is important to ascertain the date on which damage occurred. Of course, the plaintiffs’ bar crafts pleadings to be purposefully vague as to the date (or period) of damage to property. A recent Fifth Circuit decision applying Texas law addresses this coverage issue in the context of allegations of a condition created by an insured during the policy period that caused damage after the policy expired.

In Gonzalez v. Mid-Continent Cas. Co., 969 F.3d 554 (5th Cir. 2020), Gilbert Gonzales (the insured) was a siding contractor. In 2013, the underlying plaintiff hired Gonzales to install new siding on his house. In 2016, the underlying plaintiff’s house was damaged in a fire. The underlying plaintiff sued Gilbert in Texas state court alleging that when Gonzalez installed the siding in 2013, he hammered nails through electrical wiring and created a dangerous condition that caused a fire three years later in 2016.

At the time Gilbert performed construction work, he was insured by Mid-Continent Casualty Company. Mid-Continent disclaimed coverage to Gonzales on the basis that the complaint unequivocally alleged that property was damaged in 2016 and there were no allegations that property damage occurred prior to 2016 or was continuing in nature.

Mr. Macklin may be contacted at jmacklin@tlsslaw.com


Nine Haight Attorneys Selected for Best Lawyers®: Ones to Watch 2021

Person with arms up in triumph

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

September 14, 2020
Haight Brown & Bonesteel LLP

Nine Haight Brown & Bonesteel LLP attorneys were selected for Best Lawyers®: Ones to Watch 2021. Congratulations to Courtney Arbucci, Frances Brower, James de los Reyes, Kyle DiNicola, Arezoo Jamshidi, Kristian Moriarty, Beth Obra-White, Casey Otis and Kaitlin Preston!

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers has received over 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”


Drastic Rebuild Resurrects Graves' Landmark Portland Building

Hardhat gloves measuring tape and plans resting on wooden table

The project had “a lot of potential barriers” beyond its leaking concrete exterior walls.

September 14, 2020
Nadine M. Post - Engineering News-Record

Fifteen minutes into a 105-minute job interview for the $195-million overhaul of the long-troubled Portland Public Service Building in Oregon’s largest city, owner’s rep Mike Day threw a curve ball to the unwitting design-build team of Howard S. Wright Construction Co. and architect DLR Group. Already hard at work solving Day’s first faux crisis scenario—a budget buster that threatened the viability of the makeover of the notoriously dysfunctional landmark—they had to regroup.

Reprinted courtesy of Nadine M. Post, Engineering News-Record

Ms. Post may be contacted at postn@enr.com

Read the full story...


COVID-19 Claim for Business Interruption Survives Motion to Dismiss

September 14, 2020
Tred R. Eyerly - Insurance Law Hawaii

In the first noteworthy decision recognizing a possible business interruption claim due to the presence of COVID-19 and the associated closure orders, the insureds survived a motion to dismiss. Studio 417, Inc. v. The Cincinnati Ins. Co., 2020 U.S. Dist. LEXIS 147600 (W.D. Mo. Aug.12, 2020).

The insureds operated hair salons and a restaurant. They held "all-risk" policies from Cincinnati. The policies provided that Cincinnati would pay for "direct loss" unless excluded. A "Covered Cause of Loss" was defined to mean accidental physical loss or accidental property damage.The policies did not define "physical loss" or "physical damage." The policies also did not have exclusions for virus or communicable disease.

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


Another Way a Mechanic’s Lien Protects You

Three construction workers looking at plans

A mechanic’s lien can and will put you as a construction company seeking payment in a better position than if no lien were recorded.

September 14, 2020
Christopher G. Hill - Construction Law Musings

Here at Construction Law Musings, we have discussed mechanic’s lien law in Virginia on multiple occasions. We have discussed everything from the very picky nature of the perfection and enforcement of these liens to the changes that the Virginia General Assembly periodically makes to these requirements and how to defend against such liens.

While the steps taken and content of a Virginia mechanic’s lien will be strictly construed by the Virginia courts, when perfected properly, a mechanic’s lien can and will put you as a construction company seeking payment in a better position than if no lien were recorded. The direct benefit is that you now hold a lien on the property on which you performed work that takes a priority (read will be paid before) any mortgage or other lien on that structure. In other words, if you, the bank, or the owner seeks to sell the property through foreclosure or otherwise, mechanic’s lien holders generally get paid first. While there are exceptions to be explored with an experienced Virginia construction attorney, this is the general rule and the power of a mechanic’s lien.

Mr. Hill may be contacted at chrisghill@constructionlawva.com


Engineering, Architecture, and Modern Technology – An Interview with Dr. Jakob Strømann-Andersen

Businessman pointing at digital model

Doctor Strømann-Andersen will be speaking at WDBE 2020 on September 30, 2020.

September 14, 2020
Aarni Heiskanen - AEC Business

We sat down with Dr. Jakob Strømann-Andersen of Henning Larsen’s Sustainability Engineering Department. Our talk covered the need for interdisciplinary research, sustainable practice, and how technology will lead change in the years ahead.

Can you tell us a bit about your professional background and what you’re currently working on?

I’m a partner with Henning Larsen and work with around 300 architects globally. We’re based in Copenhagen where we’re 200 people strong, with branches throughout the world. I’m a trained engineer with a civil engineering background – making me the first partner that’s not an architect. I’ve been with the company for 15 years and joined as an industrial research Ph.D. in Denmark. For my first three years here, I was employed as a researcher doing research and energy-efficient building design. And that’s where we started with our approach to sustainability.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


Best Lawyers Honors 43 Lewis Brisbois Attorneys, Recognizes Three Partners as 'Lawyers of The Year'

Congratulations card

Best Lawyers has selected 43 Lewis Brisbois attorneys across 25 offices for inclusion in its list of 2021 Best Lawyers in America.

September 14, 2020
Lewis Brisbois

Best Lawyers has selected 43 Lewis Brisbois attorneys across 25 offices for inclusion in its list of 2021 Best Lawyers in America. It has also recognized three Lewis Brisbois partners as "Lawyers of the Year": Los Angeles Partner Jon P. Kardassakis (Mass Tort Litigation / Class Actions - Defendants); Roanoke Partner Paul C. Kuhnel (Medical Malpractice Law - Defendants); and Northwest Indiana Managing Partner Renee J. Mortimer (Personal Injury Litigation - Defendants).

Please join us in congratulating these three partners and the following attorneys on their Best Lawyers recognition.

Reprinted courtesy of Lewis Brisbois

Read the full story...


Rams Owner Stan Kroenke Debuts His $5.5 Billion Dream Stadium

Spotlight on stadium field

Stan Kroenke wanted an arena that celebrated Southern California and the indoor-outdoor lifestyle its residents enjoy.

September 14, 2020
Christopher Palmeri - Bloomberg

The first thing you notice that’s different about SoFi Stadium is that you can walk from the parking lot almost directly into the fifth level of the arena.

There’s no passing through gate after gate or ascending endless circular walkways. Construction workers dug up over 7 million cubic yards of dirt to build an arena that sits 100 feet (30 meters) below grade.

It’s one of the many features that make SoFi, the National Football League’s biggest stadium, surprisingly visitor-friendly. Not that fans will be able to experience it just yet. When the stadium debuts Sunday with the first game of the Los Angeles Rams’ season, it will be spectator-free -- the result of pandemic-spurred restrictions on gatherings. But it will still be a spectacle.


New Date: Construction Project Scheduling & Delay Claims

September 14, 2020
Beverley BevenFlorez – CDJ Staff

The Construction Project Scheduling and Delay Claims has moved to November 17th. The speakers of this one-day seminar will discuss “the most challenging issues that arise in managing project schedules and delays and will present cutting-edge techniques for documenting, analyzing, and presenting project schedule delay events, providing guidance on how to avoid, negotiate, and resolve these disputes.” The seminar is relevant for Architects, Attorneys, Contractors, Engineers, Government Employees, and Municipal Employees.

November 17, 2020
Hampton Inn & Suites - Brickell Downtown
50 SW 12th Street
Miami, FL 33130


Louis "Dutch" Schotemeyer Returns to Newmeyer Dillion as Partner in Newport Beach Office

Two businessmen shaking hands

Schotemeyer will expand the firm’s Real Estate Litigation, Construction Litigation, Business Litigation and Labor & Employment practices.

September 14, 2020
Louis "Dutch" Schotemeyer - Newmeyer Dillion

Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that Louis “Dutch” Schotemeyer has rejoined the firm as a partner in the Newport Beach office. Schotemeyer will expand the firm’s Real Estate Litigation, Construction Litigation, Business Litigation and Labor & Employment practices and strengthen the firm’s legal offerings for companies operating without a dedicated in-house legal counsel.

“We are thrilled to be welcoming Dutch back to Newmeyer Dillion. He brings a wealth of litigation experience and has served as a trusted advisor to companies facing myriad complex legal disputes,” said the firm’s Managing Partner, Paul Tetzloff. “His experience as in-house counsel will greatly complement Newmeyer Dillion’s business-first mindset when it comes to providing legal counsel to our clients. He is an invaluable asset to the team.”

Prior to rejoining Newmeyer Dillion, Schotemeyer was Vice President and Associate General Counsel for William Lyon Homes, Inc. and Vice President and Deputy General Counsel for Taylor Morrison. His experience as a corporate attorney has strengthened his ability to work with in-house counsel and serve as a relationship attorney that assists clients in managing legal needs by building the right team of legal specialists.

Mr. Schotemeyer may be contacted at dutch.schotemeyer@ndlf.com


'There Was No Fighting This Fire,' California Survivor Says

Firefighters with fire in background

Berry Creek was largely destroyed in what has become the deadliest fire of 2020.

September 14, 2020
The Associated Press (Brian Melley & Terence Chea) - Bloomberg

Berry Creek, Calif. (AP) -- John Sykes built his life around his cabin in the dense woods of Northern California. He raised his two children there, expanded it and improved it over time and made it resilient to all kinds of disaster except fire.

So when the winds started howling Tuesday and the skies became so dark from smoke that he had to turn on his lights at midday, he didn’t hesitate to leave it all behind in an instant before any evacuation order.

With the disaster two years ago in nearby Paradise, in which 85 people perished in the deadliest and most destructive fire in modern state history, still fresh on his mind, Sykes got his wife and a friend into his car and left with only a change of clothes each.

“All I could do is look in the rear view mirror and see orange sky and a mushroom cloud and that told me it was hot and to keep going,” Sykes said Friday. “It was a terrifying feeling.”


Homebuilders' Group Wants Trump to Act to Halt Lumber Price Surge

September 14, 2020
Tom Ichniowski - Engineering News-Record

With lumber prices rising sharply, the National Association of Home Builders wants the Trump administration to take steps to halt or reverse the costly trend.

Mr. Ichniowski may be contacted at ichniowskit@enr.com


DOD Contractors Receive Reprieve on Implementation of Chinese Telecommunications Ban

Abstract blue globe technology

The Director of National Intelligence granted the temporary waiver until September 30, 2020 pending a further review of waiver request.

September 14, 2020
Lori Ann Lange & Sabah Petrov - Peckar & Abramson

In our previous alert, we discussed the expansion on the Section 889(a)(1)(B) ban on certain Chinese telecommunications equipment and services to contractors and subcontractors who use the equipment and services in their internal operations. Effective August 13, 2020, federal agencies were prohibited from procuring, obtaining, extending, or renewing a contract with a contractor that uses equipment, systems, or services that use covered telecommunications equipment or services as a substantial or essential component or as critical technology, unless an exception applies or a waiver is granted. Since then we have received feedback from contractors, complaining about the difficulties in determining whether their internal operations use covered telecommunications equipment and services and the need for additional time to become compliant or even obtain enough information to submit a waiver request.

Now it seems that Department of Defense (DoD) contractors and subcontractors may be getting a temporary reprieve. The DoD Under Secretary for Acquisition and Sustainment requested a waiver that would allow DoD to continue to execute procurement actions providing supplies, equipment, services, food, clothing, transportation, care, and support necessary to execute the DoD mission. The Director of National Intelligence granted the temporary waiver until September 30, 2020 pending a further review of waiver request. Depending upon the outcome of this additional review, the temporary waiver may be continued beyond September 30, 2020 if it is in the national security interests of the United States.

Reprinted courtesy of Lori Ann Lange, Peckar & Abramson and Sabah Petrov, Peckar & Abramson
Ms. Lange may be contacted at llange@pecklaw.com
Ms. Petrov may be contacted at spetrov@pecklaw.com


Why Construction Is Considered a Fundamental Service

September 14, 2020
Chris Jackson - Construction Executive

When the pandemic first hit the United States, many businesses were either ordered closed by different states or decided to close by themselves. There are, however, some major exceptions: those businesses that are considered as “essential” enough that should continue operating during this crisis. There are many states that include construction and building materials industries as “essential services.”

Of course, this might make many people wonder why construction is a fundamental service. To clear the misconception about construction services, here’s a brief guide that breaks down why construction is considered as a fundamental service.

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


COVID-19 Case Remanded for Failure to Meet Amount in Controversy

Illustration of judges standing behind bench

Because Travelers failed to meet its burden to establish the requisite amount in controversy, the court granted Geragos' motion to remand.

September 14, 2020
Tred R. Eyerly - Insurance Law Hawaii

The federal district court remanded to state court a loss of rent claim because the amount in controversy requirement was not met. Geragos & Geragos Fine Arts Bldg., LLC v. Travelers Indemn. Co., 2020 U.S Dist. LEXIS 127427 (C.D. Cal. July 20, 2020).

Geragos suffered loss of rental income due to the COVID-19 tenant relief measures implemented in Los Angeles. The tenant relief orders would remain in effect for the duration of the emergency period, the end date of which was not presently set.

Geragos submitted a claim for loss of rental income to Travelers. When the claim was denied, Geragos sued in state court. Travelers removed to federal district court. Geragos moved to remand the case back to state court for lack of subject matter jurisdiction.

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


Alleging Property Damage in Construction Defect Lawsuit

House under repair

A construction defect lawsuit is about triggering first, the insurer’s duty to defend, and second, the insurer’s duty to indemnify its insured for the property damage.

September 14, 2020
David Adelstein - Florida Construction Legal Updates

When there is a construction defect lawsuit, there is an insurance coverage issue or consideration. As I have said repeatedly in other articles, it is all about maximizing insurance coverage regardless of whether you are the plaintiff prosecuting the construction defect claim or the contractor(s) alleged to have committed the construction defect and property damage. It is about triggering first, the insurer’s duty to defend, and second, the insurer’s duty to indemnify its insured for the property damage.

The construction defect claim and lawsuit begins with how the claim and, then, lawsuit is couched knowing that the duty to defend is triggered by allegations in the lawsuit (complaint). Thus, preparing the lawsuit (complaint) is vital to maximize the insurer’s duty to defend its insured.

In a recent opinion out of the Eleventh Circuit, Southern-Owners Ins. Co. v. MAC Contractors of Florida, LLC, 2020 WL 4345199 (11th Cir. 2020), a general contractor was sued for construction defects in the construction of a custom home. A dispute arose pre-completion and the owner hired another contractor to complete the house and remediate construction defects. The contractor’s CGL insurer originally provided a defense to the general contractor but then withdrew the defense and filed an action for declaratory relief asking for the declaration that it had no duty to defend the contractor because the underlying lawsuit did NOT allege property damage. The trial court agreed with the contractor and granted summary judgment in its favor finding that the underlying complaint did not allege property damage beyond defective work. But, on appeal, the Eleventh Circuit reversed.

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


Does a Broker Forfeit His or Her Commission for Technical Non-Compliance with Department of Real Estate Statutory Requirements?

Black background with white question marks and red one in middle

Attorney Kevin J. Parker analyzes CK Revocable Trust v. My Home Group Real Estate LLC.

September 14, 2020
Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog

In a recent Arizona Court of Appeals case, CK Revocable Trust v. My Home Group Real Estate LLC, 2020 WL 4306183 (7/28/2020), the Court of Appeals addressed the distinction between “substantive” and “technical” statutory requirements for real estate broker commission agreements.

The Court explained that failure to comply with a substantive requirement would preclude the broker from recovering a commission, but failure to comply with a technical requirement would not. As examples of such substantive requirements, the Court identified the statutory requirement that the broker be licensed at the time the claim for commission arose, and the statutory requirement that the listing agreement be signed by both the broker and the client.

Mr. Parker may be contacted at kparker@swlaw.com



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