Breach of Contract Exclusion Bars Coverage for Construction Defect Claim
March 19, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined the policy's breach of contract exclusion precluded coverage for a claim against the general contractor insured for construction defects. Mt. Hawley Ins. Co. v. McAtamncy, 2024 U.S. Dist. LEXIS 497 (N. D. Cal. Jan. 2, 2024).
McAtamney, a general contractor dong business as Kilrea Construction, was hired by Jeffrey Horowitz for a home-renovation project. After completion of the project, Horowitz discovered defects in the work. He filed a complaint alleging that Kilrea breached obligations to construct and complete the work in an expeditious and workmanlike manner, free from any faults and defects. He brought claims for breach of contract, breach of implied warranty, negligence, neglignet supervision, and declaratory relief.
Kilrea's insurer, Mt. Hawley, agreed to defend, but reserved the right to later deny coverage for any uncovered claims. The breach of contract exclusion provided there was no duty to defend a claim for property damage arising from breach of an express or implied contract or warranty.
Read the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Word “Estimate” in a Contract Matters as to a Completion Date
February 12, 2024 —
David Adelstein - Florida Construction Legal UpdatesLanguage in a contract matters. The word “estimates” or “estimated” matters particularly when it comes to a date certain such as a substantial completion or completion date. Remember this.
Here is an example.
In Parque Towers Developers, LLC v. Pilac Management, Ltd., 49 Fla.L.Weekly D190a (Fla. 3d DCA 2024), a trial court held that the developer did not complete the construction of five condominium units by the date in the purchase agreements. The developer appealed because “[t]he agreements contain no date certain for the completion of the units, but rather include a clause that ‘Seller estimates it will substantially complete construction of the Unit, in the manner specified in this Agreement, by December 31, 2017, subject to extensions resulting from ‘Force Majeure (the ‘Outside Date’).’” Parque Towers, supra. Another provision in the purchase agreements stated, “[w]henver this Agreement requires Seller to complete or substantially complete any item of construction, that item will be understood to be complete or substantially complete when so completed or substantially completed in Seller’s opinion. Id.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
ASCE Releases First-of-its-Kind Sustainable Infrastructure Standard
October 24, 2023 —
American Society of Civil EngineersRESTON, VA — The
American Society of Civil Engineers (ASCE) today released a first-of-its-kind standard, ASCE/COS 73-23: Standard Practice for Sustainable Infrastructure, which provides guidance for infrastructure owners to develop and implement sustainable solutions through a project's entire life cycle. It is a non-mandatory, performance-based standard designed for civil infrastructure ranging from transportation projects to water systems to the energy grid, developed over a period of five years involving a multitude of diverse stakeholders.
ASCE President Maria Lehman noted, "This is a transformational standard that for the first time will establish consensus guidance on how infrastructure owners should address sustainability in their projects. As of early September, there have been 23 confirmed weather/climate disaster events in the U.S. with losses exceeding $1 billion. That's almost one every week and a half. Sustainability and resilience are more important than ever. Infrastructure owners and designers have a responsibility to develop and implement practices that promote sustainability and long-term reliability of infrastructure projects, while also being cost-effective and collaborative with community stakeholders."
The standard complements existing ASCE standards and tools like the Envision rating system.
A discussion and examination of the ASCE/COS 73-23 standard will be held at the
ASCE INSPIRE 2023 Conference in Arlington, Virginia from November 16th-18th. Print copies of the standard will also be available for purchase at the conference.
Click here to register for the event and learn more about sustainable and resilient innovations in the civil engineering space.
To purchase the standard, visit
the link here.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
Real Estate & Construction News Roundup (10/11/23) – Millennials Struggle Finding Homes, Additional CHIPS Act Funding Available, and the Supreme Court Takes up Hotel Lawsuit Case
November 16, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, EV charging stations become more prevalent at commercial locations, home ownership becomes more difficult for younger Americans, Macy’s announces plans to build additional stores within strip malls, and more!
- Due to several factors including overpriced housing and student debt, millennials will not have the same level of home ownership as previous generations. (Jordan Rosenfeld, Yahoo)
- With the U.S. being short about 3.8 million housing units according Freddie Mac, 3-D printing may prove to be the answer while also being cost effective and environmentally friendly. (Lesley Stahl, Aliza Chasan, Shari Finkelstein and Collette Richards, CBS)
- The Department Commerce of announced a new initiative to funnel $500 million in CHIPS Act funding to projects with capital investments below $300 million that support the construction, expansion or modernization of semiconductor-related facilities in the U.S. (Sebastian Obando, Construction Dive)
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team, Pillsbury
AAA Revises its Construction Industry Arbitration Rules and Mediation Procedures
April 02, 2024 —
Garret Murai - California Construction Law BlogThis one is for the lawyers. Or for those of you who are claims-minded . . .
Effective March 1, 2024, the American Arbitration Association (“AAA”) revised its Construction Industry Arbitration Rules and Mediation Procedures. For those involved in construction, this is important since the AAA Rules are the default arbitration rules contained in AIA form contracts and are often the arbitration rules referenced in other construction contracts as well.
So, what are the changes?
- General: Fax numbers have gone the way of the Dodo bird and replaced by email addresses for all parties. Also, while already done in practice, preliminary hearings may now be held via videoconference in addition to telephone and in-person (Rule R-23).
Read the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
6 Ways to Reduce Fire Safety Hazards in BESS
January 02, 2024 —
The Hartford Staff - The Hartford InsightsRenewable energy sources, such as solar and wind, are projected to generate 44% of all power in the U.S. by 2050, which is increasing the need for battery energy storage systems (BESS).1
BESS are electrochemical devices that collect energy from a power grid, power plant or renewable source, hold it, and then discharge that energy later to provide electricity on demand.
“A BESS does not itself create or produce energy, it is a storage system. The energy is produced by other means, including different types of renewable sources. Think of a cellphone – you charge it overnight and then it runs throughout the day off that battery power,” says Stacie Prescott, head of energy for middle and large commercial at The Hartford.
Read the full story...Reprinted courtesy of
The Hartford Staff, The Hartford Insights
Atlanta Office Wins Defense Verdict For Property Manager On Claims By Vendor, Cross-Claims By Property Owner
January 08, 2024 —
Lewis Brisbois NewsroomAtlanta, Ga. (December 18, 2023) – Atlanta Partner
Adi Allushi and Associate
Cecilia Walker recently secured a defense verdict for a national property management corporation on claims brought by a vendor and cross-claims lodged by the property owner. Lewis Brisbois’ client is a national corporation, over a century old, that managed over 140 properties with 40,000 units.
In 2019, the client entered the Georgia market managing three apartment complexes owned by a hedge fund in New York. The owner terminated without cause the client within six months, and several vendors – including the plaintiff, who was a remedial services provider – were not paid during the last few months and the transition period. The plaintiff sued the owner for the unpaid services, as well as an incorrect entity it believed to be the client. The owner cross-claimed against the client for fraudulent misrepresentations. Based on the misnomer statute, the court granted default judgment against the client.
Read the full story...Reprinted courtesy of
Lewis Brisbois
Parties Can Agree to Anything In A Settlement Agreement………Or Can They?
October 17, 2023 —
Alexa Stephenson & Ivette Kincaid - Kahana FeldA settlement agreement is a contract. When parties to pending litigation enter into a settlement, they enter into a contract. Such a contract is subject to the general law governing all contracts. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204 Cal. Rptr. 143, 682 P.2d 338] [offers by a party to compromise under Code Civ. Proc., § 998].) Courts seek to interpret contracts in a manner that will render them “lawful, operative, definite, reasonable, and capable of being carried into effect’” without violating the intent of the parties. (Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241, 272–273; Kaufman v. Goldman, (2011) 195 Cal. App. 4th 734, 745.
A settlement agreement like a contract is a document that is typically negotiated between the parties to the agreement and it is up to the parties to determine its terms. Settlements take time and sometimes negotiating the settlement terms takes longer. This is especially true in complex litigation and multiparty matters where negotiating the settlement terms is just as contentious as litigating the matter. Just like contracts, in a settlement agreement the parties cannot agree to terms that violate public policy. A contract is thought to be against public policy if it results in a breach of law, harms citizens, or causes injury to the state. Contracts that are voided on public policy grounds carry no legal obligations. For example, an employer cannot force an employee to sign a contract that forbids the worker from joining a union.
Reprinted courtesy of
Alexa Stephenson, Kahana Feld and
Ivette Kincaid, Kahana Feld
Ms. Stephenson may be contacted at astephenson@kahanafeld.com
Ms. Kincaid may be contacted at ikincaid@kahanafeld.com
Read the full story...