Appellate Court Lacks Jurisdiction Over Order Compelling Appraisal
January 16, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventh Circuit recently held that the district court's order compelling appraisal and staying the proceedings pending appraisal was an interlocutory order that was not immediately appealable under 28 U.S.C. 1292 (a) (1). Positano Place at Naples Condominium Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 27961 (11th Cir. Oct. 20, 2023).
Postiano Condominium Association suffered damage from Hurricane Irma. Pastiano notified its insurer, Empire, seven months later. Empire investigated the claim and inspected the property. Positano sent a written request for appraisal. Empire did not respond and Pastiano filed suit, alleging that the parties' dispute was not a coverage dispute but a dispute over the amount of the loss. Postiano moved to compel appraisal and to stay the proceedings pending completion of the appraisal.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Prolonged Effects on Commercial Property From Extreme Weather
January 29, 2024 —
The Hartford Staff - The Hartford InsightsAs evidenced by the extraordinary heat in the Southwest, a string of tornadoes in South and Midwest, and heavy rains in California and Florida, 2023 was a banner year for extreme weather. However, 2024 may be no different, which means now is the time for businesses to rethink the way they approach volatile weather, as well as the frequency and severity of storms and natural disasters.
The risks and challenges that businesses face as extreme weather becomes stronger and causes more property damage, requires innovative technology with specialized insurance solutions. Through updated building codes, advancements in technology and meaningful infrastructure improvements, businesses can make a difference in protecting their property and reducing losses.
Stronger Building Codes To Withstand Storms
It is not uncommon to see the destruction that a hurricane or tornado leaves behind. However, stronger building codes are one of the best ways to make sure property can withstand catastrophes. Florida for example implemented changes to its building codes after Hurricane Andrew, and then again in 2007 after the Hurricanes of 2004 and 2005. New construction since then has made houses and buildings significantly more hurricane proof. Buildings constructed 30 years ago were likely built with codes that may have neglected the impact of strong winds from an extreme hurricane or significant rainfall that a storm can bring, especially along the Atlantic and Gulf coasts.
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The Hartford Staff, The Hartford Insights
Creeping Incrementalism in Downstream Insurance: Carriers are Stretching Standard CGL Concepts to Untenable Limits
October 17, 2023 —
Eric M. Clarkson - Saxe Doernberger & VitaIn the construction sector, the importance of closely vetting downstream parties’ insurance has never been more critical. The markets have been hardening with no seeming end in sight and carriers are looking for any way to get an edge. Owners and general contractors need to be on the lookout for ever broader carrier-specific expansions of standard insurance provisions that are perilous for risk transfer. We are seeing more and more terms that go against the intent of ISO standard which is what is almost universally required in construction contracts.
One area where carriers are deviating from standard concepts is within pre-existing injury or damage exclusions in Commercial General Liability (“CGL”) policies. It is almost a universal requirement that downstream parties provide additional insured coverage to owners and general contractors on ISO form CG 00 01. Generally, ISO standard language provides coverage for sums the insured becomes legally obligated to pay as damages because of bodily injury or property damage. One of the few main requirements to trigger coverage is that the injury or damage must occur during the policy period. Over the years, ISO standard language has evolved to exclude injury or damage if an insured or certain persons knew that it had occurred before the policy period. Additionally, injury or damage is deemed to have been known to have occurred under certain circumstances.
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Eric M. Clarkson, Saxe Doernberger & VitaMr. Clarkson may be contacted at
EClarkson@sdvlaw.com
AGC’s 2024 Construction Outlook. Infrastructure is Bright but Office-Geddon is Not
February 12, 2024 —
Garret Murai - California Construction Law BlogThe Associated General Contractors of America has issued its
2024 Construction Outlook. According to its survey of construction contractors throughout the United States, contractors have a mixed outlook for 2024 with firms predicting transitions in the demand for projects, the types of challenges they will face and technologies they plan on embracing. According to the survey, contractors continue to cope with significant labor shortages, the impact of higher interest rates and input costs and a supply chain which, while better than in past few years, is still far from normal.
Of the 17 categories of construction types included in the survey, respondents expected a net positive growth in 14 of those categories, with infrastructure projects leading the net positive readings following the passage of the
Infrastructure Bill in 2021, and commercial retail and office leading the net negative readings as a result of the continuing
office-geddon:
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
The New York Lien Law - Top Ten Things You Ought to Know
December 23, 2023 —
Ralph E. Arpajian - White and Williams LLPOver the course of my career, I have had the privilege of working with and representing numerous construction lenders (and borrowers/developers) in the financing of some of the largest commercial projects in the United States.
A number of these projects have been in New York, where one encounters the New York Lien Law (the “Lien Law”). Many of my clients, particularly those lenders, borrowers, and their counsel, located outside of New York, are often perplexed by my advice regarding the Lien Law and the loan structuring requirements which result. In the hope that it would be helpful (especially for non-New York counsel), I have compiled a “top ten” list outlining, in my view, the most critical (and most perplexing) aspects of structuring New York construction loans under the Lien Law.
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Ralph E. Arpajian, White and Williams LLPMr. Arpajian may be contacted at
arpajianr@whiteandwilliams.com
If a Defect Occurs During Construction, Is It an "Occurrence?"
February 12, 2024 —
Brendan J. Witry - The Dispute ResolverEstablishing insurance coverage for construction defects is almost as important as establishing liability in the underlying construction defect litigation itself.
The risk to the defendant contractor of defending a construction claim can place significant burdens on a contractor’s operations and an uninsured judgment might even put the contractor out of business.
For owners, suing a contractor for construction defects can become academic if there is no prospect of insurance coverage; obtaining a $1 million judgment against a contractor with limited assets would be a pyrrhic victory.
Commercial General Liability (CGL) carriers are obligated to defend claims that potentially fall within the coverage granted by the policy.[1] When presented with a claim, CGL insurers typically have three options: (1) assume the defense without reservation; (2) assume the defense asserting defenses to coverage, and depending on the state, reserving the right to recover defense costs if it later determines there is no duty to defend; or (3) deny the claim outright and seek a declaratory judgment holding that the insurer has no duty to defend or indemnify. An insurer may deny the claim outright and not seek a declaratory judgment, but does so at its peril because it can expose the insurer to significant liability if the insured later shows the insurer in fact had a duty to defend.
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Brendan J. Witry, Laurie & Brennan LLPMr. Witry may be contacted at
bwitry@lauriebrennan.com
New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works Contracts
December 16, 2023 —
Nicholas J. Zaita & Brian Glicos - Peckar & Abramson, P.C.Introduction
In a matter of “first impression,” on November 30, 2023, the Appellate Division affirmed the New Jersey Superior Court decision in
Ernest Bock & Sons-Dobco Pennsauken Joint Venture v. Township of Pennsauken and Terminal Construction Corp., finding that the New Jersey Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48 to -56.57 (“PWCRA” or the “Act”), applies to a joint venture formed for the sole purpose of bidding on a public works contract. Therefore, the Court held that the PWCRA requires any joint venture bidding on public works projects in New Jersey to be registered under the Act at the time of bid submission. Accordingly, the Township of Pennsauken acted within its authority and properly rejected the bid submission of the Ernest Bock & Sons-Dobco Joint Venture which was not registered under the Act in the name of the joint venture at the time of its bid submission, despite the individual members of the joint venture being registered.
Reprinted courtesy of
Nicholas J. Zaita, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Zaita may be contacted at nzaita@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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A Brief Primer on Perfecting Your Mechanics Lien When the Property Owner Files Bankruptcy
January 22, 2024 —
William L. Porter - Porter Law GroupOverview of the Mechanics Lien Law
This is a brief description of steps to be taken when the Owner of property on which you have recorded a mechanics lien files bankruptcy.
The California mechanics lien is a powerful tool for contractors, subcontractors and materials suppliers to secure payment of unpaid construction debts. A contractor, subcontractor or materials supplier is allowed to record a mechanics lien on real property, based on the value added to the property by the claimant during the construction process.
The recorded mechanics lien provides the claimant with legal right to force the sale of the improved real property and thereby obtain the funds necessary to pay the delinquent debt. Under the usual procedure, the first step is the recording of the mechanics lien with County Recorder’s office in the County where the property is located. A lawsuit to foreclose on the lien must then be filed in the County Superior Court of that County, within ninety (90) days after the mechanics lien is recorded. The goal of the lawsuit is to obtain a judgment for foreclosure on the mechanics lien in order to force a sale of the property. The net proceeds of the sale will be used to pay the unpaid construction debt secured by the recorded mechanics lien, assuming sale proceeds exceed the amount of senior liens and encumbrances.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com