Insurer Must Defend Insured Against Construction Defect Claims
November 14, 2018 —
Tred R. Eyerly - Insurance Law HawaiiFinding various exclusions inapplicable, the Federal District Court ruled that the insurer owed a defense to the general contractor based upon Texas law. Mt. Hawley Ins. Co. v. Slay Engineering, 2018 U.S. Dist. LEXIS 139363 (W.D. Texas Aug. 15, 2018).
Huser Construction had a CGL policy issued by Mt. Hawley Insurance Company. Huser contracted to design and construct a municipal sports complex with the City of Jourdanton. The project consisted of four baseball fields, a softball field, parking lots and swimming pool. Huser subcontracted with Cody Pools, Inc. to design and build the swimming pool. Huser also subcontracted with Q-Haul, Inc. to perform earth work, grading and storm drainage work at the site.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Deference Given To Procuring Public Agency Regarding Material Deviation
April 10, 2019 —
David Adelstein - Florida Construction Legal UpdatesDeference will be given to a procuring public agency in a bid protest, particularly when the issue involves whether a bid is non-responsive and constitutes a material deviation from the solicitation. You do not believe me? Perhaps you will after this holding in Biscayne Marine Partners, LLC v. City of Miami, Florida, 44 Fla.L.Weekly D467a (Fla. 3d DCA 2019):
Consequently, no principle of law is clearly established…as to any obligation of the trial court (and, by analogy, an administrative hearing officer) [in a bid protest] to decide or to defer [whether a bid constitutes a material deviation from the solicitation]. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct.
I do not know about you, but that last underlined sentence is pretty strong language regarding judicial deference!
In this case, Miami (the procuring public agency) issued a Request for Proposals (RFP) for the redevelopment and lease of waterfront property, for the operation of a marina, boatyard, restaurant, wet slips, and a dry storage facility on the property. Miami issued five addenda to the RFP. There were three bidders.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Balancing Risk and Reward: The Complexities of Stadium Construction Projects
April 15, 2024 —
Gregory A. Eichorn - Peckar & Abramson, P.C.From grand designs to opening day, stadium construction projects present a captivating blend of high-profile opportunities and significant challenges and risks. Navigating this complex landscape is not easy, but when managed properly, the potential rewards, both in terms of reputation and finances, can make it a gamble worth taking. While each stadium project is different, some of the more common risks include:
- Securing adequate labor, materials and equipment based on the size of the project;
- Logistical concerns regarding the concurrent performance of multiple trade scopes on a single site;
- Protection of work in place from weather due to the large footprint of the stadium project;
- Cash flow issues caused by protracted change order processing, conflicting and/or onerous payment requirements from project financing entities, and reimbursement of considerable monthly general condition costs; and
- Meeting the schedule requirements for the project.
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Gregory A. Eichorn, Peckar & Abramson, P.C.Mr. Eichorn may be contacted at
geichorn@pecklaw.com
A Recap of the Supreme Court’s 2019 Summer Slate
September 16, 2019 —
Anthony B. Cavender - Gravel2GavelAs usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:
An Offshore Dispute, Resolve – Parker Drilling Management v. Newton
On June 10, 2019, the Court held, in a unanimous ruling, that, under federal law, California wage and hour laws do not apply to offshore operations conducted on the Outer Continental Shelf (OCS). Newton, the plaintiff, worked on drilling platforms off the coast of California, and alleged that he was not paid for his “standby time” which is contrary to California law if not federal law. He filed a class action in state court, which was removed to federal court, where it was dismissed on the basis of a 1969 decision of the U.S. Court of Appeals for the Fifth Circuit, which held that state law applies on the OCS only to the extent that it is necessary to use state law to fill a significant gap or void in federal law, and this is not the case here. On appeal to the Ninth Circuit, that court disagreed with the Fifth Circuit, and ruled that state law is applicable on the OCS whenever it applies to the matter at hand. The Supreme Court, in an opinion written by Justice Thomas, conceded that “this is a close question of statutory interpretation,” but in the end the Court agreed with the argument that if there was not a gap to fill, that ended the dispute over which law applies on the Outer continental Shelf. This ruling, recognizing the preeminent role that federal law plays on the OCS, may affect the resolution of other offshore disputes affecting other federal statutes.
Preemption Prevention – Virginia Uranium, Inc. v. Warren. et al.
On June 17, 2019 the Court decided important cases involving federal preemption and First Amendment issues. In a 6-to-3 decision, the Court held that the Atomic Energy Act does not preempt a Virginia law that “flatly prohibits uranium mining in Virginia”—or more precisely—mining on non-federal land in Virginia. Virginia Uranium planned to mine raw uranium from a site near Coles, Virginia, but acknowledging that Virginia law forbade such an operation, challenged the state law on federal preemption grounds, arguing that the Atomic Energy Act, as implemented by the Nuclear Regulatory Commission, preempts the ability of the state to regulate this activity. However, the majority, in an opinion written by Justice Gorsuch, notes that the “best reading of the AEA does not require us to hold the state law before us preempted,” and that the1983 precedent that Virginia Uranium cites, Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, can easily be distinguished. Justice Gorsuch rejected arguments that the intent of the Virginia legislators in passing the state law should be consulted, that the Court’s ruling should normally be governed by the exact text of the statute at hand. However, both the concurring and dissenting opinions suggest that the what the legislators intended to do is important in a preemption context.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Defects in Texas High School Stadium Angers Residents
March 07, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to WFAA News, many residents of Allen, Texas were upset when their tax dollars were spent on a new high school football stadium, and they are angry now that alleged construction defects may cause the stadium to close, and perhaps not even reopen again this fall.
There “is a disproportionately large amount of our tax dollars that goes just to Allen ISD," Rachel Palmer, an Allen resident, told WFAA News.
However, Ben Pogue, president of Pogue Construction, the stadium’s general contractor called the situation “a road bump.” WPAA News also interviewed Dr. Simon Chao of the Department of Civil Engineering at the University of Texas at Arlington: "Cracking is fairly common in concrete," Chao stated. "The problem is the damage water may cause by getting in the cracks.”
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Haight has been named a Metropolitan Los Angeles Tier 1 “Best Law Firm” and Tier 2 for Los Angeles and Orange County by U.S. News – Best Lawyers® “Best Law Firms” in 2022
November 08, 2021 —
Haight Brown & Bonesteel LLPHaight Brown & Bonesteel LLP is listed in the U.S. News – Best Lawyers® (2022 Edition) “Best Law Firms” list with six metro rankings in the following areas:
Los Angeles
- Tier 1
- Insurance Law
- Personal Injury Litigation – Defendants
- Product Liability Litigation – Defendants
- Product Liability Litigation – Plaintiffs
- Tier 2
- Personal Injury Litigation – Plaintiffs
Orange County
- Tier 2
- Product Liability Litigation – Defendants
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Haight Brown & Bonesteel LLP
Construction Defect Dispute Governed by Contract Disputes Act not yet Suited to being a "Suit"
June 25, 2019 —
William S. Bennett - Saxe Doernberger & Vita, P.C.The Southern District of California recently held that a series of demands for a general contractor to investigate and repair several construction defects at a U.S. Army facility did not constitute a “suit” within the meaning of the general contractor’s commercial general liability (“CGL”) policy.
In Harper Construction Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., the U.S. Government hired Harper Construction Company (“Harper”) to construct a U.S. Army training facility for the Patriot Missile System in Fort Sill, Oklahoma. No. 18-cv-00471-BAS-NLS (S.D. Cal. Mar. 28, 2019). During the project, Harper hired Harper Mechanical Contractors (“Harper Mechanical”), an independent company, as a subcontractor “to perform demolition, grading, and other work at the Project.”
After Harper completed the project, the government informed Harper of property damage at the project, “including, but not limited to, gypsum wallboard cracks and binding doors.” Harper attempted to repair the issues, but the problems continued. The issues were apparently the result of Harper Mechanical’s grading work. Subsequently, the government sent two letters requesting an investigation and asking Harper to “propose a plan to correct the issues.” As Harper undertook an investigation spanning multiple years, the government became increasingly frustrated with the delays. The government threatened to initiate “formal administrative recourse” and to demolish the project, forcing Harper to re-build from the ground up. It also sent Harper another letter requesting Harper submit a formal proposal to correct the issues.
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William S. Bennett, Saxe Doernberger & Vita, P.C.Mr. Bennett may be contacted at
wsb@sdvlaw.com
Sometimes you Need to Consider the Coblentz Agreement
January 19, 2017 —
David Adelstein – Florida Construction Legal UpdatesSince insurance, particularly liability insurance, is such an important component when it comes a construction project, understanding certain nuances such as a
Coblentz Agreement (a what kind of agreement agreement?!?—keep reading) becomes helpful.
If there is a construction defect claim / lawsuit, the implicated parties (e.g., contractor, design professional, subcontractor, sub-consultants) are going to tender the claim / lawsuit to their respective liability insurer. This is what they should be doing – notifying the insurer so that the insurer can defend them from the claim / lawsuit and indemnify them from covered damages associated with the claim / lawsuit.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com