Insurer Must Pay To Defend Product Defect Claims From Date Of Product Installation
January 31, 2018 —
Michael S. Levine & Brittany M. Davidson - Insurance Recovery BlogAn Iowa federal court recently ruled that an insurer must pay its policyholder’s defense costs from the date of installation of the allegedly faulty product, even though the underlying suits failed to allege when damage purportedly occurred. The ruling opens the door under each of the policyholder’s successive liability policies from 2000 to 2008, allowing the policyholder to recover millions of dollars in defense costs.
The policyholder sought summary judgment concerning the date(s) on which the insurer’s defense obligation was triggered by fourteen of the fifteen claims asserted against it. The policyholder argued that the duty attached from the moment property damage potentially occurred, meaning the time when the underlying claimant installed or potentially could have installed the windows at issue in the underlying claims. The policyholder cited to the following evidence to support its claim: actual dates of installation (where available), dates of delivery, purchase or manufacture of the windows; and policy period referenced in the insurer’s claims notes as being potentially implicated by the claim.
Reprinted courtesy of
Michael S. Levine, Hunton & Williams and
Brittany M. Davidson, Hunton & Williams
Mr. Levine may be contacted at mlevine@hunton.com
Ms. Davidson may be contacted at davidsonb@hunton.com
Read the court decisionRead the full story...Reprinted courtesy of
California Home Sellers Have Duty to Disclose Construction Defect Lawsuits
October 21, 2013 —
CDJ STAFFIf you’re selling a home in California that has been the subject of a construction defect lawsuit, you probably have to disclose this, according to Steven G. Lee, an attorney at Reid & Hellyer. Mr. Lee notes that California law mandates the disclosure of “any lawsuits by or against the Seller threatening to or affecting the Property, including any lawsuits alleging a defect or deficiency.” He further notes that “for those selling units in a condominium or townhouse development, this includes defects in the common areas.”
He notes that failure to disclose will not invalidate the sale, but the seller may be “liable for actual damages suffered by the buyer.” Merely disclosing the former defect may not be enough. Mr. Lee notes that the California Court of Appeals ruled in one case that although buyers had been informed of past water intrusion, knowledge of the construction defect lawsuit may have affected the buyer’s decision.
Read the court decisionRead the full story...Reprinted courtesy of
4 Lessons Contractors Can Learn From The COVID-19 Crisis
May 25, 2020 —
Patrick Hogan - Handle.comAt the start of 2020, the industry outlook in construction was positive. Many contractors were optimistic about what the year had in store for construction businesses in terms of profit, expansion of operations, and even payment issues. That was until the COVID-19 pandemic put a wrench in everyone’s business plans.
There’s no question about how huge the impact of the novel coronavirus crisis is on business operations. With the federal and state governments implementing strict measures to slow down the spread of COVID-19, construction businesses are experiencing significant delays and disruptions in their operations. Because of the lockdowns and stay-at-home orders, many construction projects are forced to postpone operations or, worse, cancel them altogether.
Nevertheless, there are lessons in the COVID-19 pandemic that contractors can learn. Here are some of them.
1. Contractors need to be proactive in meeting preliminary notice requirements
Cash is tight in times of crisis. As the economy comes to a standstill, construction businesses will need to deal with decreasing profits. They may even have to dip into their own cash reserves to cover fixed expenses and their employees’ salaries.
In times like this, it is crucial that contractors perform due diligence in protecting their right to get paid. The first step in doing so is to prepare
preliminary notices. These notices are an important step in the mechanics lien process and without them, chances contractors will not be able to recover the unpaid compensation for the materials they furnished and services they rendered.
2. Force majeure provisions are crucial parts of a contract
The novel coronavirus pandemic has highlighted the importance of force majeure provisions in construction contracts. Before the COVID-19 crisis hit business operations, force majeure provisions were typically considered as simple boilerplate clauses. This means they were just there as a standard part of contracts.
However, the same force majeure clauses, as well as impossibility of performance provisions, have become crucial in the current crisis. As many construction businesses experience difficulties with their operations, they may not be able to fulfill their contractual responsibilities. The said clauses can give contractors a much-needed reprieve.
As the current crisis continues, contractors should review contracts as these provisions can give them more time to finish the job. And in the hopefully near future when the crisis ends, business owners should review the contract creation process and ensure that these clauses included in contracts will be able to address the impact of situations similar to COVID-19.
3. Having solid internal communication is crucial
There’s a lot of uncertainty with the COVID-19 situation. With work operations temporarily stopping, the circumstances can be quite stressful for employees. There will be doubts and fears within your workforce on whether work will be back to normal as soon as possible or not.
Keeping your workforce well-informed and trusting of your organization is crucial, especially in this time of uncertainty. That is why it is paramount that you have a solid internal communication infrastructure to disseminate information about the current work situation and the next steps that the business will take. In addition, only through proper employee communication can the implementation of social distancing and hygiene measures be effective.
4. Contractors can benefit from flexible work arrangements
As the coronavirus crisis has made it necessary for everyone to stay at home, construction businesses should look for ways to continue operations. Expanded work arrangements such as work-from-home setups may just be the solution.
Of course, most of the physical work that is needed to be done on-site will be impossible to do at home, but office-based functions such as sales, client relations, design, and administrative roles can still continue. This can even have additional benefits to productivity and health. And when the crisis is over, business owners should consider incorporating these work arrangements into their operations permanently.
The COVID-19 crisis is not showing any sign of stopping soon, and even when it ends, it will take quite a long time before we can be back to business as usual. As the crisis continues, however, business owners should take the situation as a learning experience.
Once the COVID-19 crisis is over, it will take a long time for things to go back to normal. In fact, things may not end up going back to the way they were before and businesses will need to adapt to the new normal. However the situation evolves, business owners should take this opportunity to learn new things and maintain resilience in trying times.
About the Author:
Patrick Hogan is the CEO of Handle.com, where they build software that helps contractors, subcontractors, and material suppliers with late payments. Handle.com also provides funding for construction businesses in the form of invoice factoring, material supply trade credit, and mechanics lien purchasing.
Read the court decisionRead the full story...Reprinted courtesy of
The California Privacy Rights Act Passed – Now What?
November 09, 2020 —
Heather Whitehead - Newmeyer DillionThe ballot initiative, Proposition 24, has been passed by voters in yesterday’s election. What does this proposition entail and how does it impact the California Consumer Privacy Act (CCPA)?
What’s Covered in Proposition 24 - The California Privacy Rights Act (CPRA)
The CPRA, among other things, does the following:
- Revises the existing CCPA to expand consumer rights with respect to personal information and sensitive personal information;
- Creates a new agency responsible for enforcing the CPRA; and
- Increases penalties for violations related to the personal information of children under the age of 16.
As for additional consumer rights, the CPRA offers consumers the opportunity to request a correction of inaccurate personal information. In addition, a consumer may direct a company to “limit its use of the consumer's sensitive personal information” to a use that an average customer would expect.
Read the court decisionRead the full story...Reprinted courtesy of
Heather Whitehead, Newmeyer DillionMs. Whitehead may be contacted at
heather.whitehead@ndlf.com
Construction Spending Highest Since April 2009
October 25, 2013 —
CDJ STAFFThe Commerce Department has announced that construction spending has increased by 0.6 percent, but that modest gain puts it at the highest it has been in four and a half years. The last time construction spending was this high was April 2009.
The rise in construction spending is due to increases in both public and private construction project. Public construction was up, despite a decrease in spending by the federal government. Private residential construction is at a five-year high.
Read the court decisionRead the full story...Reprinted courtesy of
Newmeyer & Dillion Named for Top-Tier Practice Areas in 2018 U.S. News – Best Law Firms List
November 02, 2017 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – NOVEMBER 2, 2017 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that U.S. News-Best Lawyers® recognized the firm's Orange County office in its "Best Law Firms" 2018 list, ranking five of its practice areas with its highest ranking possible - Tier 1. These areas include Commercial Litigation, Construction law, Insurance law, Litigation - Construction and Litigation - Real Estate.
"We continue to be honored that our clients and peers recognize the foundational principles this firm was built on - personalized service and achieving the best results possible." said Jeff Dennis, Newmeyer & Dillion's Managing Partner.
Firms included in the 2018 "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
The 2018 rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the U.S. More than 21,000 attorneys provided almost 700,000 law firm assessments, and more than 8,0000 clients provided more than 47,000 evaluations.
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 have been given Martindale-Hubbell Peer Review's AV Preeminent highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
Read the court decisionRead the full story...Reprinted courtesy of
U.S. Judge Says Wal-Mart Must Face Mexican-Bribe Claims
October 01, 2014 —
Jef Feeley – BloombergWal-Mart Stores Inc. (WMT) was ordered by a federal judge in Arkansas to face a pension fund’s claims the retailer defrauded shareholders by concealing corruption tied to bribes allegedly paid by officials of its Mexican unit.
U.S. District Judge Susan Hickey in Fayetteville rejected Wal-Mart’s bid to throw out the Michigan-based fund’s lawsuit accusing it of making misleading statements to regulators about claims it paid bribes to facilitate Mexican real-estate deals.
The world’s largest retailer has said it’s spent $439 million since 2012 in connection with investigations into allegations that employees paid bribes in Mexico, China, India and Brazil. Both U.S. and Mexican prosecutors have said they are probing whether executives of Wal-Mart’s Mexican unit were paying off local officials to clear the way for construction of new stores and warehouses.
Read the court decisionRead the full story...Reprinted courtesy of
Jef Feeley, BloombergMr. Feeley may be contacted at
jfeeley@bloomberg.net
What’s in a Name? Trademarks and Construction
April 25, 2022 —
Carol Wilhelm and J.P. Vogel - Construction ExecutiveEvery company, no matter the industry, relies on its name and reputation to develop customers and generate revenue. Think about the brands that dominate American culture such as Nike, Wal-Mart, Amazon or McDonald’s, then imagine those businesses without the ability to adequately protect their names, slogans and logos. No doubt the vultures would circle and brand power would most likely become short lived or otherwise diluted to the point of non-existence. The construction industry is not exempt, and the industry leaders benefit from identifiable names and logos, built over years of reputation and brand building. While the tools necessary to protect your company’s brand exist at the state and federal level, many business owners or leaders are unfamiliar with the trademark process and unaware of the consequences of not utilizing those tools.
Trademark Registration
Trademarks are “concise and unequivocal identifiers” that provide potential customers with essential information about your business. With a single word, tagline, logo, color—essentially anything that can carry meaning—potential customers learn to associate particular product or service characteristics and expected quality level with a particular source. That is, your mark is the way that consumers connect your expertise and reputation to your business and nobody else’s. It serves a critical role in reducing consumer search costs and capturing your hard-earned business opportunities.
Reprinted courtesy of
Carol Wilhelm and J.P. Vogel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Vogel may be contacted at jpvogel@grayreed.com
Ms. Wilhelm may be contacted at cwilhelm@grayreed.com
Read the court decisionRead the full story...Reprinted courtesy of
