South Carolina’s New Insurance Data Security Act: Pebbles Before a Landslide?
June 13, 2018 —
Richard Borden, Sedgwick Jeanite & Joshua Mooney - White and Williams LLPThe ramp-up of cybersecurity regulation, albeit in a patchwork fashion through state-level legislation, has begun. On May 18, 2018, South Carolina enacted the Insurance Data Security Act (Act), becoming the first state to pass legislation based upon the Insurance Data Security Model Law that was approved by the National Association of Insurance Commissioners (NAIC) last October. The Act makes very little change to the model law’s text, which in turn, is based on 23 NYCRR § 500, et seq., the cybersecurity regulations promulgated by the New York State Department of Financial Services in March 2017. The Act establishes stringent standards for both data security programs, and an entity’s response to a “cybersecurity event” through an organized and methodical investigation and notification to the state’s Department of Insurance. Like New York’s cybersecurity regulations, the Act requires insurers to submit to the Department of Insurance annual certification of compliance and has a ratcheted implementation of portions of the legislation on insurers and brokers operating or otherwise licensed to do business in the state. It does not create a private cause of action.
Reprinted courtesy of White and Williams LLP attorneys
Richard Borden,
Sedgwick Jeanite and
Joshua Mooney
Mr. Borden may be contacted at bordenr@whiteandwilliams.com
Mr. Jeanite may be contacted at jeanites@whiteandwilliams.com
Mr. Mooney may be contacted at mooneyj@whiteandwilliams.com
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Palo Alto Considers Fines for Stalled Construction Projects
November 20, 2013 —
CDJ STAFFThe city of Palo Alto, California is considering adopting a law that would fine residents with expired building permits. The City Council took up the issue in response to complaints from residents about stalled construction projects in their neighborhoods.
In the public testimony, one resident noted that a site near her home was fenced off in 2007, with the home demolished in 2008, after which nothing has happened. The City Council is proposing fines of $200 per day, after a 30-day grace period, increasing to $400 per day two months after that, going to $800 per day on the 121st day.
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Addressing the Defective Stucco Crisis
November 28, 2018 —
Wally Zimolong - Supplemental ConditionsI received several emails regarding the expose by Caitlin McCabe and Erin Arvedlund in the Philadelphia Inquirer titled “Rotting Within.” The story outlines the epidemic of defective stucco and other “building envelope” issues in Southeastern Pennsylvania that is causing homes to literally rot from within. Having litigated several of these cases, they are frustrating for both the attorneys that handle them and the homeowners who must deal with the reality that their home is rotting away. The story points to the multiple (and all too common) causes for the epidemic: unskilled subcontractors, lack of oversight and care, and poor construction drawings. The is no quick solution to the crisis and litigation regarding these defects is sure to proliferate.
However, there is one potential solution that the story does not cover and which could help alleviate some of the challenges homeowners face in recovering damages for their claims. The Pennsylvania Legislature must act to change the insurance laws in Pennsylvania to make defective construction covered by a developer’s, contractor’s, and subcontractor’s commercial general liability policy (“CGL”). Most homeowners and many attorneys incorrectly assume that defective construction is covered by insurance. This assumption makes sense. If someone operates a car in a negligent manner and hits your car and causes damage, the negligent driver’s insurance company with cover your loss. In reality, Pennsylvania courts follows a minority of states that holds that generally speaking defective workmanship is not a “covered occurrence” under an insurance policy. (There are several exceptions to this rule and thorough discussion is beyond this blog post and would probably bore you.)
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation
June 05, 2017 —
Jon A. Turigliatto & Chelsea L. Zwart - CGDRB News & PublicationsThe Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract.
In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development. The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building. At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development. The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages.
MWI filed a motion for a directed verdict prior to the jury’s verdict and motion for judgment notwithstanding the verdict following the entry of judgment, both on the grounds that the HOA had failed to present any evidence that MWI had caused a SB800 violation as a result of its negligence or breach of contract, and had therefore failed to prove negligence and causation as required by SB800. MWI relied on the Fourth District’s prior decision in Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, and its interpretation therein of Civil Code §936, which states, in relevant part, that the statute applies “to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract….” (emphasis added.) However, the trial court denied both motions, relying on the last sentence of Civil Code §936, which states in part, “[T]he negligence standard in this section does not apply to any…material supplier…with respect to claims for which strict liability would apply.”
Reprinted courtesy of
Jon A. Turigliatto, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Mobile Home Owners Not a Class in Drainage Lawsuit
March 01, 2012 —
CDJ STAFFComparing it to a “complex construction defect action,” the California Court of Appeals for Orange County has rejected the claims of a group of mobile home owners that they should be certified as a class in their lawsuit against Huntington Shorecliffs Mobilehome Park. The Appeals court sustained the judgment of the lower court. The court issued a decision in the case of Criswell v. MMR Family LLC on January 17, 2012.
The claims made by the group were that the owners and operators of the mobile home park had known of an “on-going and potentially worsening shallow groundwater condition on the property” and had “exacerbated the problem by changing ‘the configuration and drainage related to the hillside that abuts’ the park.” The homeowners claimed that the class should consist of “any past or current homeowner during the same time frame” who had experienced “the accumulation of mold, fungus, and/or other toxins,” “property damage to his/her mobilehome and/or other property resulting from drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins,” emotional distress related to drainage problems or mold, and finally health problems “resulting from exposure to drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins, in or around one’s home, lot, or common areas of the park.”
The lower court concluded that while the limits of the class were identifiable, they failed to constitute a class in other ways. First, the people affected were small enough in number that they could be brought together. They “are not so numerous that it would be impracticable to bring them all before the Court.”
The court noted that while many of the homeowners would have issues in common, they did not find “a well-defined community of interest among the class members.” The Appeals Court wrote that “the individual issues affecting each mobile home and homeowner will predominate over the common issue of the presence of standing or pooling water in and around the park.” The court noted that each home would be affected differently by water and “the ‘accumulation of mold, fungus, and/or other toxins.’”
While the court conceded that there would be common issues, such as the “defendants’ alleged concealment of excess moisture conditions and their allegedly negligent roadwork and landscaping,” they noted that “these common issues would be swamped by the swarm of individual determinations of property damage, emotional distress, and personal injury.” The Appeals Court cited an earlier case that ruled against certification “if a class action ‘will splinter into individual trials.’” The court affirmed the judgment of the lower court that they could not proceed as a class.
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While You Were Getting Worked Up Over Oil Prices, This Just Happened to Solar
October 29, 2014 —
Tom Randall – BloombergEvery time fossil fuels get cheaper, people lose interest in solar deployment. That may be about to change.
After years of struggling against cheap natural gas prices and variable subsidies, solar electricity is on track to be as cheap or cheaper than average electricity-bill prices in 47 U.S. states -- in 2016, according to a Deutsche Bank report published this week. That’s assuming the U.S. maintains its 30 percent tax credit on system costs, which is set to expire that same year.
Even if the tax credit drops to 10 percent, solar will soon reach price parity with conventional electricity in well over half the nation: 36 states. Gone are the days when solar panels were an exotic plaything of Earth-loving rich people. Solar is becoming mainstream, and prices will continue to drop as the technology improves and financing becomes more affordable, according to the report.
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Tom Randall, BloombergMr. Randall may be contacted at
trandall6@bloomberg.net
Arizona Supreme Court Confirms Eight-Year Limit on Construction Defect Lawsuits
July 18, 2011 —
CDJ STAFFActing on the case of Albano v. Shea Homes Ltd. Partnership, the Arizona Supreme Court has ruled that Arizona’s eight-year statute of repose applies. The case was referred to the court by the Ninth Circuit Court of Appeals which had asked for a clarification of Arizona law. The case focused on three questions:
1. Does the filing of a motion for class certification in an Arizona court toll the statute of limitations for individuals, who are included within the class, to file individual causes of action involving the same defendants and the same subject matter? 2. If so, does this class-action tolling doctrine apply to statutes of repose, and more specifically, to the statute of repose for construction defects set forth in Arizona Revised Statutes ("A.R.S.") § 12-552? 3. If the doctrine applies to statutes of repose, and specifically § 12-552, may a court weigh the equities of the case in determining whether, and to what extent, an action is tolled?
The litigation at hand has a lengthy history, starting with a case referred to as “Hoffman” in 2003. The Albano plaintiffs were not able to join in Hoffman, and they filed their own lawsuit in 2006. An additional lawsuit was filed by the Albano plaintiffs in 2007. The courts decided that the Albano plaintiffs’ lawsuit was untimely.
The Arizona Supreme Court concluded that the statute of repose was the appropriate standard for this case. They noted that “the eight-year statute of repose period began to run on November 6, 1997, the date of the Town of Gilbert’s final inspection. Albano II was filed on November 5, 2007.”
The court found that the plaintiffs had waited too long for start their suit. As a result, they found it unnecessary to answer the first or third questions. Justice A. John Pelander of the Arizona Supreme Court wrote the opinion, dated June 30, 2011.
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War-Torn Ukraine Looks to Europe’s Green Plans for Reconstruction Ideas
July 18, 2022 —
Laura Millan Lombrana - BloombergUkrainian officials and architects are already thinking about how to rebuild cities torn by the Russian invasion in a way that is also respectful to the environment and helps fight climate change.
Mariupol city hall officials have started to assess the damage caused by Russian shelling as a first step to rebuild the city once the war is over, Deputy Mayor Sergei Orlov told an audience in Brussels at the New European Bauhaus festival, running through Saturday in several European cities. A coalition of Ukrainian and international experts in urban planning, heritage, energy and the circular economy are working toward the same goal.
“We will reconstruct Ukraine, we have to do that and we will do that,” European Commission President Ursula von der Leyen said at the festival. “It’s not only in our interest, it’s our moral obligation to do that — but when we are reconstructing Ukraine, let’s do it the right way, let’s do it in the spirit of the New European Bauhaus.”
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Laura Millan Lombrana, Bloomberg
