Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits
August 10, 2020 —
Christine Kroupa, John Palmeri & Katelyn Werner - Gordon & ReesDespite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met.
The Bill:
On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:
- The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
- The information is not available to the insurer without the assistance of the insured;
- The written request provides the insured 60 days to respond;
- The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
- The insurer gives the insured an opportunity to cure, which must:
- Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
- Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.
Reprinted courtesy of Gordon & Rees attorneys
Christine Kroupa,
John Palmeri and
Katelyn Werner
Ms. Kroupa may be contacted at ckroupa@grsm.com
Mr. Palmeri may be contacted at jpalmeri@grsm.com
Ms. Werner may be contacted at kwerner@grsm.com
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National Demand Increases for Apartments, Refuting Calls for Construction Defect Immunity in Colorado
September 08, 2016 —
Jesse Witt – The Witt LawfirmFor the last four years, the homebuilders’ lobby has been aggressively pushing the idea that consumer protection laws are stifling condominium construction in Colorado. The lobbyists claim that the fear of liability for construction defects has forced many local developers to build apartments instead of condominiums. They have dismissed the notions that the shift to apartments merely reflects supply and demand, or that modern families might actually prefer to rent rather than buy. To support this theory, they have touted high condominium sales in other states. A new story from NPR’s Here & Now refutes this claim, however.
Contrary to what the lobbyists have been saying, data now confirm that large numbers of Americans prefer to rent, not buy, their homes. NPR reported today that home ownership in the U.S. fell to its lowest rate since 1965, while the share of U.S. households who rent is nearing a 50-year high. This trend appears nationwide and can hardly be blamed on consumer protection laws in Colorado.
Reprinted courtesy of
Jesse Howard Witt, Acerbic Witt
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Mr. Witt welcomes comments at www.witt.law
Utah’s Highest Court Holds That Plaintiffs Must Properly Commence an Action to Rely on the Relation-Back Doctrine to Overcome the Statute of Repose
August 20, 2018 —
Shannon M. Warren - The Subrogation StrategistEarlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back[1] to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action.
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Shannon M. Warren, White and Williams LLPMs. Warren may be contacted at
warrens@whiteandwilliams.com
There’s Still No Amazon for Housing, But Fintech’s Working on It
February 14, 2022 —
Patrick Clark - BloombergIt’s hard to imagine a better scenario for real estate technology than the one that played out in 2021. Low interest rates and pent-up demand ignited the hottest housing market on record, while the pandemic gave buyers and sellers new reasons to conduct business virtually.
And yet the year will be better remembered for the way some of the biggest names in the industry struggled. The highest-profile flop was Zillow Group Inc., the online listings giant that pulled the plug on its nascent instant homebuying operation in the face of mounting losses. Compass Inc., the tech-driven real estate brokerage, saw its shares plummet 50% as part of a broader selloff in property-related technology stocks. Better, an online mortgage company, fired 9% of its staff.
The bumpy year underscored a problem that’s been holding back the adoption of technology in real estate for the past two decades. Each sale of a home involves hundreds of thousands if not millions of dollars, and no two properties are exactly alike. Silicon Valley-backed companies have gone a long way in making searching for homes and advertising them simpler and faster. But it’s a difficult process to move fully online and involves a lot of people such as agents, appraisers, brokers, and contractors, as well as entrenched interests. For example, Zillow’s house buying business—billed as a way for customers to get out of their homes quickly and speed the moving process—faltered in part because the company couldn’t find enough contractors to fix up those homes to resell them.
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Patrick Clark, Bloomberg
Former Hoboken, New Jersey Mayor Disbarred for Taking Bribes
September 17, 2014 —
Beverley BevenFlorez-CDJ STAFFThe New Jersey Law Journal reported that Peter Cammarano III, a former Hoboken, New Jersey, mayor, was disbarred after admitting “four years ago that he took $25,000 in bribes from a federal informant in exchange for promising his help in getting approval for a high-rise.” Cammarano “was one of 44 public officials and rabbis arrested in July 2009 as part of a massive federal investigation, known as Operation Bid Rig, into public corruption and money laundering operations.”
The Disciplinary review board had recommended a three year suspension, however, the New Jersey Supreme Court rejected that recommendation.
“An elected official who sells his office—who offers favored treatment in exchange for money—betrays a solemn public trust,” Justice Barry Albin wrote for the court, as quoted by the New Jersey Law Journal. “This form of corruption is corrosive to our democracy and undermines public confidence in honest government, and its rippling pernicious effects are incalculable.”
“I believe the Disciplinary Review Board’s decision was right,” Joseph Jr. Hayden, Cammarano’s attorney, told the New Jersey Law Journal. “There were sufficient mitigating factors to justify only a suspension.”
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Federal Court of Appeals Signals an End to Project Labor Agreement Requirements Linked to Development Tax Credits
October 20, 2016 —
Gregory R. Begg & Aaron C. Schlesinger – Peckar & Abramson, P.C.What Action Should Owners, Developers and Contractors Take in Anticipation of Successful Challenges to PLA Requirements?
Recently, a federal court in New Jersey issued a decision which very well may invalidate all Project Labor Agreements (“PLA’s”) entered into as a condition to receipt of tax incentives for private development. Tax incentives utilized to promote private development are different, according to the court, than typical public works projects where PLA requirements have generally been held valid. Owners, developers, contractors and governmental entities must assess the consequences of this decision upon contracts already and to be awarded in the future where tax benefits may be linked to a PLA requirement.
In 1993, in what has become known as the Boston Harbor Case, the United States Supreme Court held that state and local governmental entities may condition the award of public works contracts on the contractor’s agreement to enter into PLA’s.
That decision has been followed nationwide since then to uphold the validity of various state and local law bidding conditions requiring successful bidders to negotiate and enter into project labor agreements as a condition to the award of public works contracts. The rationale is that when the government, like any other private party, is participating in an economic market, it may exercise its discretion in setting terms and conditions it believes best suit its interests in the efficient procurement of goods and services in that market. Therefore, a PLA requirement by a governmental entity engaged in market activity is no more or less valid than a PLA requirement on a purely private project.
Reprinted courtesy of
Gregory R. Begg, Peckar & Abramson, P.C. Aaron C. Schlesinger, Peckar & Abramson, P.C.
Mr. Begg may be contacted at gbegg@pecklaw.com
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
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Insurers Must Defend Allegations of Faulty Workmanship
June 20, 2022 —
Tred R. Eyerly - Insurance Law HawaiiGranting the insured's motion for partial judgment on the pleadings, the court determined the insurers had a duty to defend. Suez Treatment Solutions, Inc. v. Ace Am. Ins. Co. & Liberty Mut. Fire Ins. Co., 2022 U.S. Dist. LEXIS 59044 (S. D. N. Y. March 30, 2022).
Suez Treatment Solutions, Inc. held policies from Chubb and Liberty Mutual Fire Insurance Company to cover its operations in connection with the development of a pollution treatment system in North Carolina. When the project ultimately failed, an underlying action sought damages from Suez, alleging breach of contract, negligence, and fraud. Suez filed this case seeking a declaratory judgment that Chubb and Liberty were each obligated to defend and indemnify Suez in the underlying case.
The City of High Point hired Suez to upgrade the facilities at its wastewater treatment plant staring in 2021. Because mercury levels were too high in emissions from sewage-sludge incinerators, Suez began working on the installation of a Mercury Removal System. After installation, a leak occurred in a component known as the heat exchanger. The leak caused the system to shut down and weeks-long repairs began.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
November 15, 2017 —
Jeff Dennis & Ivo Daniele – Newmeyer & Dillion, LLPThe European Union (“EU”) has enacted a strict, comprehensive framework of security regulations aimed to protect its citizens. These regulations, known as the General Data Protection Regulation (“GDPR”), provide a blueprint for a combination of required legal, technological and work habits within an organization. Although this is an EU regulation, the new laws will apply to any organization within or outside the EU that collects or processes data of EU citizens. Therefore, U.S. companies must analyze their data and processes to determine whether compliance with the GDPR is necessary. A quickly-approaching deadline of May 25, 2018 must be met to avoid massive fines.
What is the GDPR?
In order to address the creation of social networking sites, cloud computing, and location-based services, the EU set in motion a process to implement a vigorous set of rules to ensure the right to personal data protection for all European citizens. In April 2016 the European Parliament, the Council, and the Commission adopted a new GDPR, which will take affect on May 25, 2018.
This GDPR will streamline cooperation between the data protection authorities on personal data issues allowing companies to deal with one authority - not each of the 28 EU member states. This will allow for quicker decisions by the data protection authorities and greatly reduce the red tape in both compliance and enforcement under the GDPR. This will also create a level playing field by forcing non-EU companies to comply with the same strict regulations - regardless of whether or not the company is established in the EU.
Territorial scope of the GDPR
The GDPR applies directly to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU - regardless of whether the processing takes place in the EU. Additionally, there are specific provisions under the GDPR that apply to non-EU companies if their processing activities relate to (a) the offering of goods or services (irrespective of whether a payment of the data subject is required) or (b) monitoring the behavior of individuals within the EU. Therefore, all companies must determine whether they process or monitor information of EU citizens. If a company falls within one of these categories, compliance with the GDPR is mandatory.
What happens if a company fails to comply with the GDPR?
Failure to comply with the GDPR could subject a company to crushing administrative fines.
The supervisory authority has the power to impose administrative fines under the GDPR. The following violations and breaches would subject a company to administrative fines:
- Not adhering to the core principles of processing personal data,
- Breach of notification to EU citizens by controllers and processors,
- Wrongful transfer of personal data to non-EU countries,
- Breach of obligations regarding certification,
- Ignoring the mandates asserted by the supervisory authority,
- Breach by those responsible for impact assessment, and
- Wrongful processing of employee data.
The extent of the violation and type of personal data involved will dictate the severity of the administrative fines imposed on a company. For example, under the GDPR, a company could be subject to administrative fines up to 20,000,000 EUR, or up to 4% of the total worldwide annual revenue of the preceding financial year. Obviously, these fines would be financially crippling to any company.
Preparing for May 25, 2018
The May 25, 2018 deadline is fast approaching and preparing for full compliance with the GDPR is paramount. Simple steps should be taken to ensure compliance including to:
(1) Review and analyze data repositories for sensitive data,
(2) Perform an analysis/accounting of procedure for data collection, and
(3) Create an oversite committee dedicated to data activities and compliance.
Most importantly, however, is to determine whether compliance with the GDPR is necessary, and strictly follow the requirements of the GDPR to protect from potentially massive fines.
Jeffrey M. Dennis currently serves as Newmeyer & Dillion’s Managing Partner and as a business leader, advises his clients on cybersecurity related issues, introducing contractual and insurance opportunities to lessen their risk. You can reach Jeff at jeff.dennis@ndlf.com.
Ivo Daniele is a seasoned associate in Newmeyer & Dillion’s Walnut Creek office. His practice includes representing private and public companies with both their transactional and litigation needs. You can reach Ivo at ivo.daniele@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
