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Blog Completes Seventeenth Year

January 07, 2025 — Tred R. Eyerly - Insurance Law Hawaii
Insurance Law Hawaii reaches the end of its seventeenth year this month. We began posting long ago, in December 2007. We seek to keep readers apprised of developments in insurance-related cases from Hawaii and across the country. Coverage issues surrounding the Maui fires have been top of mind this year. We will continue posting on important coverage developments in the next year. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Congratulations to Nicholas Rodriguez on His Promotion to Partner

November 25, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is very proud to announce that Nick Rodriguez has been promoted to the position of partner with the firm! Nick has been with BWB&O since 2019 and is licensed to practice law in California and the U.S. District Courts. Nick’s practice focuses on complex construction defect matters, as well as personal injury and wrongful death claims. During his time with the firm, Nick has successfully represented numerous clients through alternative dispute resolution and has taken matters to trial where he has received favorable jury verdicts. He also supervises and manages a team of associates in the Newport Beach office. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Summary Judgment for Insurer on Construction Defect Claim Reversed

January 07, 2025 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit reversed the district court's granting of summary judgment to the insurer on a construction defect claim asserted against the insured. TIG Ins. Co. v. Woodsboro Farmers Cooperative, 2024 U.S. App. LEXIS 24003 (5th Cir. Sept. 20, 2024). In March 2013, Woodsboro Farmers Cooperative contracted with E.F. Erwin, Inc. to construct two Brock 105' diameter grain silos. Erwin hired subcontract AJ Constructors, Inc. (AJC) to construct the silos. Erwin was responsible for supervising the work. Brock silos were kits shipped by the manufacturer and then assembled according to the manufacturer's manuals and specifications. The silos are constructed section by section. AJC began erecting the silos in May 2013 and completed its work in June or early July. Erwin occasionally inspected the work and found the silos were structurally sound and not defective. AJC left the job site after completing the assembly. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Amazon Can be Liable in Louisiana

August 05, 2024 — Michael J. Ciamaichelo - The Subrogation Strategist
In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims. Amazon Can be a “Seller” Under the Louisiana Products Liability Act Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program. Read the full story...
Reprinted courtesy of Michael J. Ciamaichelo, White and Williams
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

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New Mexico Holds One-Sided Dispute Resolution Provisions Are Unenforceable

November 05, 2024 — Bill Wilson - Construction Law Zone
Dispute resolution provisions that grant one party the unilateral right to choose either litigation or arbitration to resolve disputes are common in the construction industry. The main difference between the two forums is that courts are more likely to strictly enforce contract terms as written as well as the applicable law, while arbitrators make decisions on more equitable considerations, untethered to the contract terms and—to some degree—the law. The party with the sole discretion to select the dispute resolution procedure can select the process most beneficial to its interests based on the nature of the dispute, regardless of who brings the claims. In Atlas Electrical Construction, Inc. v. Flintco, LLC, 550 P.3d 881 (N.M. Ct. App. 2024), the Court of Appeals of New Mexico recently held that an arbitration provision in a subcontract, under which the contractor retained the exclusive right to choose whether disputes arising under the subcontract were litigated in court or arbitrated was unreasonably one-sided, substantively unconscionable, and unenforceable. The Atlas Electrical case involved two sophisticated entities with equal bargaining strength to negotiate the terms of a subcontract. The parties agreed to a subcontract provision which provided in the relevant part:

In the event [contractor] and [subcontractor] cannot resolve the dispute through direct discussions or mediation … then the dispute shall, at the sole discretion of [contractor], be decided either by submission to (a) arbitration … or (b) litigation …

Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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Deterioration of Bridge Infrastructure Is Increasing Insurance Needs

December 03, 2024 — Grace Calengor - Construction Executive
As the world is taken by storm—literally, with increasing hurricanes, tornadoes, wildfires and more—insuring construction projects and infrastructure is becoming more complicated yet more necessary. Sean Pender, senior vice president of construction and development at CAC Specialty, is a leading specialty insurance broker and advisor. As major-storm season for the Northern hemisphere rounds out, he speaks with Construction Executive about the potential risk and insurance implications to the process of ensuring proper repairs, replacements and other forms of maintenance to one of the country’s most pivotal pieces of infrastructure: bridges. What does insurance coverage look like for building bridges in various environments throughout the country? Insurance is essential to protect the entity that owns the bridge during construction. Bridges under construction are at the highest risk of collapse because they are not yet fully stabilized and are exposed to severe weather and natural disasters, which could cause significant damage to the structure or injury to workers and civilians. Therefore, comprehensive liability insurance programs—typically with coverage limits of $50 to $100 million or higher—are crucial, especially with activities on or over waterways. Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

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Construction Litigation Roundup: “Give a Little Extra …”

July 31, 2024 — Daniel Lund III - Lexology
Surplus lines insurers in Louisiana are considered by the state to be “an alternative type of property and casualty insurance coverage for consumers who cannot get coverage on the standard market … for specialty risk or high-risk situations….” As a quid pro quo for undertaking the exceptional risk, a surplus lines insurer argued to the United States Fifth Circuit Court of Appeals that an arbitration clause within its surplus line policy should be enforceable, notwithstanding a Louisiana statute applying to the insurance industry and prohibiting terms in insurance policies “delivered or issued for delivery” in Louisiana which have the effect of “[d]epriving the courts of this state of the jurisdiction or venue of action against the insurer.” La. R.S. 22:868. Historically in Louisiana, arbitration clauses have been understood to divest courts of jurisdiction, and, consequently, §22:868 has been held to memorialize an “anti-arbitration policy,” although the statute does not specifically mention arbitration. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Construction and AI: What Contractors Need to Know from ABC’s New Report

November 05, 2024 — Aarni Heiskanen - AEC Business
The Associated Builders and Contractors (ABC) has just released its fourth annual construction technology report, which dives deep into AI’s evolving role in the construction industry. “ABC contractor members and the overall contracting community want more information on AI and how it can help them improve safety, quality and profitability—and win more work,” said Matt Abeles, ABC vice president of construction technology and innovation. The newly released ABC AI Tech Report delivers on this need, highlighting AI-driven case studies, resources, and thought leadership from ABC’s Tech Alliance. Understanding AI’s Role in Construction The report provides a comprehensive AI Resource Guide, breaking down the basics of artificial intelligence and how it applies to construction. Understanding AI is key for contractors to stay competitive in the rapidly changing industry. Read the full story...
Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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