NY Appellate Court Holds Common Interest Privilege Applies to Parties to a Merger
January 07, 2015 —
Jay Shapiro, Lori S. Smith and Brittney Edwards – White and Williams LLPThe common interest privilege is a doctrine that operates to maintain the confidentiality of communications between parties and counsel that have aligned interests. It is designed to encourage the free flow of information between these parties, and has historically been utilized primarily in the context of litigation. However, in Ambac Assurance Corp., et al. v. Countrywide Home Loans, Inc., et al., the New York Supreme Court, Appellate Division, First Department recently expanded the common interest privilege by holding that it is applicable in transactional contexts. 2014 WL 6803006, No. 651612/10 (1st Dep’t 2014). The Ambac court defined the common interest doctrine as “a limited exception to waiver of the attorney-client privilege” when a third party is present during a communication between an attorney and his or her client. The doctrine shields such communications from disclosure when they are (1) protected by the attorney client privilege and (2) “made for the purpose of furthering a legal interest or strategy common to the parties.”
Until Ambac, New York courts touched on, but never squarely addressed, whether a third requirement must be satisfied before the common interest doctrine can be invoked: “that the communication must affect pending or reasonably anticipated litigation.” The Ambac court addressed and rejected this purported third requirement while reversing the decision of the trial court which found that defendant Bank of America failed “to cite any New York case that applied the common-interest doctrine outside of either joint-representation of two parties by one attorney, or where parties reasonably anticipated litigation.”
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Jay Shapiro,
Lori S. Smith and
Brittney Edwards
Mr. Shapiro may be contacted at shapiroj@whiteandwilliams.com
Ms. Smith may be contacted at smithl@whiteandwilliams.com
Ms. Edwards may be contacted at edwardsb@whiteandwilliams.com
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Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims
December 11, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023).
The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible.
The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Coverage for Construction Defect Barred by Contractual-Liability Exclusion
July 30, 2014 —
Tred R. Eyerly – Insurance Law HawaiiRelying upon precedent from the Texas Supreme Court, the Fifth Circuit upheld the District Court's denial of coverage based upon the policy's contractual-liability exclusion. Crownover v. Mid-Continent Cas. Co., 2014 U.S. App. LEXIS 12158 (5th Cir. June. 27, 2014).
The Crownovers entered a construction contract with Arrow Development, Inc. to construct a home. Paragraph 23.1 of the contract contained a warranty-to-repair clause, which provided Arrow "would correct work . . . failing to conform to the requirements of the Contract Documents." After the work was completed, cracks began to appear in the walls and foundation of the Crownovers' home. Additional problems with the heating, ventilation, and air conditioning system caused leaking in exterior lines and air ducts inside the home.
When Arrow refused to correct the problems, the Crownovers initiated arbitration. The arbitrator found that the Crownovers had a meritorious claim for breach of the express warranty to repair contained in paragraph 23.1 of the construction contract. Damages were awarded.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
DIR Reminds Public Works Contractors to Renew Registrations Before January 1, 2016 to Avoid Hefty Penalty
December 17, 2015 —
Garret Murai – California Construction Law BlogI know.
You’re busy.
Perhaps even a bit overwhelmed.
You’ve got trees to trim, halls to deck with boughs of holly, and when you throw in (the office, your kids’ school, and the bowling league’s) holiday parties, you’re at the point where you’ve got visions of sugar plums (although it may vary) dancing through your head.
Well, the DIR has come to give you its own yuletide greeting.
Think of it as a Christmas card of sorts.
Merry Christmas.
The Department of Industrial Relations (DIR) announced today that a mandatory renewal deadline is approaching for contractors who bid or work on public works projects in California. Contractors whose public works contractor registration expired June 30, 2015, and have ongoing public works projects or plan to bid on new ones, must pay the $300 renewal fee before January 1, 2016 or face an additional
$2,000 late penalty after that date.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Motion to Dismiss COVID Claim Granted in Part, Denied in Part
February 06, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's motion to dismiss the insured's claim for business losses due to COVID-19 was granted in part, denied in part. SRL v Zurich Am. Ins Co., 2022 U.S. Dist. LEXIS 210058 (N.D. Ill. Nov. 21, 2022).
Excelsior owned and managed the Westin Excelsior Rome, a luxury hotel in Rome. The hotel suffered business income losses with the onset of the pandemic.While the hotel was not forced to close, its bookings decreased to virtually nothing. The Excelsior's complaint alleged that the COVID-19 virus was present in and around the hotel as multiple guests and at least six employees tested positive for COVID-19. It further alleged that the virus attached to interior property and was in the air.
Excelsior was insured under a commercial property policy issued by Zurich. The court agreed there was no direct physical loss because no structure suffered damage. Among the coverages under the policy, however, was a "Cancellation of Bookings" provision. Zurich agreed there was coverage under this provision, but argued that Excelsior had already reached its annual limit for Cancellation of Bookings claims.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
New California Construction Laws for 2020
March 09, 2020 —
Smith CurrieThe California Legislature introduced more than 3,033 bills in the first half of the 2019-2020 session. This article summarizes some of the more important bills affecting contractors in their roles as contractors, effective January 1, 2020, unless otherwise noted. Not addressed here are many other bills that will affect contractors in their roles as businesses, taxpayers, and employers. Each of the summaries is brief, focusing on what is most important to contractors. Because not all aspects of these bills are discussed, each summary’s title is a live link to the full text of the referenced bills for those wanting to explore the details of the new laws.
BIDDING & PREQUALIFICATIONS
Disabled Veteran Preferences Strengthened (AB 230, Brough)
The California Legislature intends that every state procurement authority meet or exceed a DVBE participation goal of a minimum of 3% of total contract value. State departments must require prime contractors to certify at the completion of each contract the amount each DVBE received from the prime contractor, among other information. This new law requires the prime contractor to provide upon request proof of the amount and percentage of work the prime contractor committed to provide to one or more DVBEs under the contract in addition to proof of payment for work done by the DVBE. Additionally, prime contractors must now obtain permission before they may replace a listed DVBE.
County of San Joaquin Now Authorized to Establish Bid Preferences (AB 1533, Eggman)
This new law extends to the County of San Joaquin existing law that authorizes local agencies to establish preferences for small businesses, disabled veteran businesses, and social enterprises in facilitating contract awards.
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Smith Currie
Eleventh Circuit Reverses Attorneys’ Fee Award to Performance Bond Sureties in Dispute with Contractor arising from Claim against Subcontractor Performance Bond
February 27, 2019 —
CDJ STAFFOn October 26, 2018, the United States Court of Appeals for the Eleventh Circuit (the “Eleventh Circuit”) issued a decision which reversed an award of prevailing party attorneys’ fees to performance bond sureties in their dispute with a contractor arising from the contractor’s claim against a subcontractor’s performance bond. Had the lower court’s decision been affirmed, the performance bond sureties would have been able to recover prevailing party attorneys’ fees against the contractor even though they were not parties to the underlying subcontract and the subcontract did not contain a prevailing party attorneys’ fee provision.
The underlying case is complicated and arose from the construction of Brickell CityCentre in Miami. Americaribe-Moriarty JV (the “Contractor”) asserted a claim against a performance bond procured by a defaulted subcontractor and issued by International Fidelity Insurance Company and Allegheny Casualty Company (collectively, the “Sureties”). The Sureties filed a declaratory judgment action against the Contractor in the United States District Court for the Southern District of Florida (the “District Court”), seeking a declaration that the Contractor failed to perfect its claim against the performance bond.
Reprinted courtesy of
Gary M. Stein, Peckar & Abramson and
K. Stefan Chin, Peckar & Abramson
Mr. Stein may be contacted at gstein@pecklaw.com
Mr. Chin may be contacted at kschin@pecklaw.com
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President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy
May 20, 2019 —
Anthony B. Cavender - Gravel2Gavel1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:
- (A) states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;
- (B) reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
