Appraisal Panel Can Determine Causation of Loss under Ohio Law
February 19, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court granted the insured's motion to compel an appraisal that would include a determination of causation of the loss. Eagle Highland Owners Association v. State Farm Fire and Casualty Co., 2023 U.S. Dist. LEXIS 220937 (S.D. Ohio Dec. 12, 2023).
Plaintiff argued its property suffered wind and hail damage from a storm on June 18, 2021. A claim was submitted to State Farm. State Farm's investigation determined the loss to be $0.00. Plaintiff's investigator determined the loss to be $586,647.08 in repair costs.
State Farm opposed appraisal because, in its view, the damage arose from a loss in 2019, not from the June 18, 2021 storm. Plaintiff submitted a loss claim in 2019 for damage that State Farm alleged was exactly the same as the damage alleged in the loss claim for the June 18, 2021 storm. Therefore, State Farm did not view the matter as a dispute over an amount of loss, but rather over whether a loss even occurred on June 18, 2021.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Plaintiffs’ Claims in Barry v. Weyerhaeuser Company are Likely to Proceed after Initial Hurdle
January 28, 2019 —
Frank Ingham - Colorado Construction LitigationOn December 18, 2018, Federal Magistrate Judge Scott T. Varholak recommended in a written opinion that the Motion of Defendant Weyerhaeuser Company (“Weyerhaeuser”) to Dismiss Amended Complaint Pursuant to F.R.C.P. 12(b)(6) be denied. Barry v. Weyerhaeuser Company, 2018WL6589786 (D. Colo. 2018). As such, we believe District Court Judge Christine M. Arguello will accept this recommendation and the lawsuit will proceed.
At interest in this lawsuit are TJI joists designed, manufactured, and sold by Weyerhaeuser for residential construction. Headquartered in Seattle, Washington, Weyerhaeuser is one of the world’s largest private owners of timberlands, owning or controlling nearly 12.4 million acres in the United States and managing 14 million acres in Canada. It is a public company that trades on the New York Stock Exchange with revenues of $7.2 billion in 2017.[1] In addition to managing forests, Weyerhaeuser has interests in energy, minerals, and wood products.
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Frank Ingham, Higgins, Hopkins, McLain & RoswellMr. Ingham may be contacted at
ingham@hhmrlaw.com
Patriarch Partners Decision Confirms Government Subpoenas May Constitute a “Claim” Under D&O Policy; Warns Policyholders to Think Broadly When Representing Facts and Circumstances to Insurers
January 08, 2019 —
Michael S. Levine, Sergio F. Oehninger, & Joshua S. Paster - Hunton Andrews KurthThe Second Circuit recently confirmed in Patriarch Partners, LLC v. Axis Insurance Co. that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation, which ripened into a “Claim” prior to the policy’s inception date. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Michael S. Levine,
Sergio F. Oehninger and
Joshua S. Paster
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Paster may be contacted at jpaster@HuntonAK.com
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Meet Some Key Players in 2020 Environmental Litigation
May 04, 2020 —
Ellen M. Gilmer - BloombergU.S. courts are set to take up critical environmental law issues in 2020, with pipeline approvals, wildlife protections, and climate change all on the docket for the new year.
Judges will weigh the Trump administration’s deregulatory efforts, the impacts of the president’s promised border wall, and just how far states can go to address climate change.
Leading the legal battles are lawyers from private practice, environmental organizations, local governments, and the Justice Department. Here are some of the players in environmental law in 2020.
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Ellen M. Gilmer, BloombergMs. Gilmer may be contacted at
egilmer@bloombergenvironment.com
Pennsylvania Supreme Court Reaffirms Validity of Statutory Employer Defense
March 31, 2014 —
Michelle Coburn and Michael Jervis – White and Williams LLPIn Patton v. Worthington Associates, Inc., the Pennsylvania Supreme Court reaffirmed the continuing validity of the longstanding statutory employer doctrine and related five-part test of McDonald v. Levinson Steel Co. In doing so, the court overruled the Superior Court and held that Worthington was immune from tort liability as the statutory employer of plaintiff Earl Patton.
Worthington was the general contractor for a project to construct an addition to a church. Worthington subcontracted with Patton Construction, Inc. to perform carpentry work. Earl Patton was an employee and the sole owner of Patton Construction, Inc. He was injured in a scissor lift accident while performing work on the church. Patton sued Worthington alleging failure to maintain safe conditions at the worksite. After a trial, a jury awarded Patton and his wife a little more than $1.5 million in damages.
Before trial, Worthington had moved for summary judgment arguing that it was Patton’s statutory employer and thus immune from tort liability under Pennsylvania’s Workers’ Compensation Act. Under that law, general contractors are secondarily liable for payment of workers’ compensation benefits to employees of subcontractors. Like traditional employers, statutory employers are immune from tort liability for work-related injuries in situations where they are secondarily liable for workers’ compensation payments.
Reprinted courtesy of
Michelle Coburn, White and Williams LLP and
Michael Jervis, White and Williams LLP
Ms. Coburn may be contacted at coburnm@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com
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Supreme Court Holds Arbitrator can Fully Decide Threshold Arbitrability Issue
March 18, 2019 —
David Adelstein - Florida Construction Legal UpdatesThe United States Supreme Court recently decided parties to a contract can agree, under the Federal Arbitration Act, an arbitrator, rather than a court, can fully resolve the initial arbitrability question. Henry Schein, Inc. v. Archer and White Sales, Inc., 2019 WL 122164 (2019). The arbitrability question is whether the dispute itself is subject to arbitration under an arbitration provision. Parties that do not want to arbitrate try to circumvent this process by filing a lawsuit and asking the court to determine the threshold arbitrability question.
In Henry Schein, Inc., the contract at-issue provided:
This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property) shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association. The place of arbitration shall be in Charlotte, North Carolina.
The plaintiff in this case asserted a claim for injunctive relief (among other claims) and argued that, therefore, the dispute is not subject to arbitration based on the exception in the provision. The initial, threshold issue became whether the dispute was subject to arbitration and, importantly, who decides this issue. The Court further looked at whether a trial court can resolve this issue under the “wholly groundless” exception, i.e.,the court can decide the issue if the argument for arbitration is wholly groundless.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Free Texas MCLE Seminar at BHA Houston June 13th
May 29, 2014 —
Beverley BevenFlorez-CDJ STAFFThere are just two weeks remaining to sign up for Bert L. Howe & Associate’s next Texas MCLE seminar, THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.
This activity will be presented on Friday, June 13th at noon, at BHA’s Houston offices, located at:
800 Town & Country Blvd.
Suite 300
Houston, TX 77024
There is no cost for attendance at this seminar and lunch will be provided.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit. The seminar will be presented by Don MacGregor, general contractor and project manager.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation. The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals. Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
*Typical construction materials, and terminology associated with residential construction
*The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
*The parties (subcontractors) typically associated with major construction assemblies and components
*An analysis of exposure/allocation to responsible parties.
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
*A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
*A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
*The ability to identify, both quickly and accurately, potentially responsible parties
*An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
Course #: 901290467 / Sponsor #: 14152. To register for the event, please email Don MacGregor at dmac@berthowe.com. If you have any questions, please feel free to contact Don at (800) 482-1822 (office) or (714) 713-4956 (cell).
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Kahana & Feld P.C. Enhances Client Offerings, Expands Litigation Firm Leadership
March 22, 2017 —
Kahana & Feld, P.C.SANTA ANA, Calif., March 9, 2017 – Celebrating 10 successful years of practice, Managing Partner
Amir M. Kahana, Esq. , of Kahana & Feld P.C. (formally Kahana Law), is pleased to announce he has added as name partner
Jason Daniel Feld, Esq., expanding client offerings to include insurance defense and bolstering its construction defect and real estate law practice.
Feld joins the AV Preeminent firm that for the past decade has become known for its prowess in general business litigation matters, including cases involving employment, construction, real estate and intellectual property law. The firm is home to a group of proven trial attorneys who are among Southern California’s top rated counsel.
Feld brings 18 years of experience, with his practice focusing on defending homebuilders, contractors and developers in Arizona, Texas and California. He primarily chooses to represent smaller, family-owned and operated clients, providing the unique opportunity to also assist with overall best practices and risk prevention. In addition, Feld serves on several prominent insurance carrier panels, allowing him to cultivate valuable relationships with the builder and contactor community. A resident of Tustin Ranch, Feld received his juris doctor cum laude from Whittier Law School and a bachelor’s degree from University of Houston.
“Jason’s breadth of experience, leadership and work ethic are qualities I have admired throughout the many years of our friendship. He embodies the integrity and admirable character that are at the core of our firm’s fabric,” said Kahana, a resident of Irvine. “I am thrilled to have Jason join forces with our firm as we enter our second decade and are poised for significant growth. Our clients will benefit from our expanded areas of practice, allowing us to provide counsel and litigation support in a variety of areas.”
Under Kahana’s leadership, the firm has become known for holding its client relationships in the highest regard while providing premier quality legal services and sound risk assessment at a reasonable cost. With integrity always coming first, the firm’s record of success extends well beyond the office as each associate is proudly involved in his or her community, donating time and resources to a variety of worthy community organizations.
“I feel honored to join Amir and this talented and energetic firm,” said Feld. “I feel fortunate to have found a new home with partners and associates who share the same values and commitment to serving the community. I look forward to helping grow the firm in the years ahead.”
About Kahana & Feld, P.C.
Kahana & Feld, P. C. focuses on general business litigation and insurance defense, with particular emphasis on employment, real estate, construction defect and intellectual property litigation. The AV Preeminent firm is led by attorneys who have been named among Southern California’s Top Rated. The firm was founded with the goal of providing high-quality legal services at fair and reasonable rates. The firm believes that what defines attorneys is not their billing rates, but their record of success, and Kahana & Feld’s track record speaks for itself. For more information, please visit: http://www.kahanafeld.com
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