Construction Defect & Insurance Claim Research Center

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December 2013

Effective Negotiation of Construction Claims

Insurance Companies Using Preferred Contractors to Settle Claims Not in Policyholders Best Interest

Recent U.S. Supreme Court Opinion Supports Forum Selection Clauses in Interstate Contracts

Unintended Third-Party Beneficiaries Created Through Flow Down Clauses in Subcontracts

Pennsylvania Appeals Court Confirms Insurance Coverage for Product Liabilities and Distinguishes “Faulty Workmanship”

A Trap for the Unwary: Construction Contracts Under Seal (Law note)

Construction Defect Coverage Summary 2013: The Business Risks Shift To Insurers

Uncommon Occurrence: New Jersey Assembly Takes Up Bill Covering Contractors for Construction Defects

Construction Defects More Likely to be Accidents for Insurance Coverage

U.S. Supreme Court Holds That Forum Selection Clauses In Construction Contracts Should Be Rigorously Enforced

Written Construction Defect Repair Agreements: Avoid Developer Disputes and Effectuate Proper Repair of Construction Defects

South Carolina Research Lab Aims to Change Building Methods

Construction Defect Center Now Urges Homeowners In the South Or Midwest Who Have A Atlas Chalet Shingle Roof To Call Them If Their Roof Has Failed

Crossing the Rubicon – Contract Termination for Total or Material Breach

Emerging Trends And Changing Perspectives On Construction Defect Claims

Construction Defects in Florida: Florida Statutes Chapter 558 and the KB Home Nightmare at the Willowbrook Condos

Coverage for "Direct Physical Loss or Damage" Under a Policy Does Not Include Cost to Re-Design or Modify a Golf Hole To Restore its Difficulty

Dealing With Out-of-State Vendors – Where Can You Be Sued?

November 2013

Supreme Court Rejects Clear Test for Determining Priority of Mechanic’s Liens

The Scarlet Letter: Asbestos Litigation for the New or Low-Profile Defendant

Sovereign Immunity to a Surety’s Subrogation Claims? Not in Georgia

Will Hurricane Katrina Legal Issues Be Resurrected in Sandy Claims?

Courts, Rather than Arbitrators, Presumably to Decide Whether Arbitration Clauses Authorize Classwide Arbitration

Florida Supreme Court Limits Economic Loss Doctrine to Product Liability Cases

Building the Visual Foundation of Your Construction Defect Case

It Defends Me, it Defends Me Not: Are You Sure That Your Defense Costs are Covered?

Video: California Court of Appeal Opens Doors for Construction Defect Claims Outside of the Right to Repair Act

U.S. Supreme Court May Strongly Enforce Forum Selection Clauses: Many Businesses Will Breathe a Sigh of Relief, While Smaller Contractors Might Brace for Impact

Illinois Supreme Court to Decide Who Pays When the General Contractor Goes Bust

6th Circuit Affirms Award of All Expert Fees, Despite Limiting Attorney's Fees

October 2013

Insurance Policy’s “No Voluntary Payment” Clauses Lose Some Bite in Colorado

Top 10 Questions Regarding Condominium Construction Defects

The Importance Of Expert Witnesses To Support Damages In Insurance Claim Investigations

Design Professionals May Be Liable For Economic Loss Caused to Residential Homeowners Under California's SB 800 Law

“Off-the-Cuff Decision” Admitting Expert Testimony Doesn’t Cut it in First Circuit

Time Is of the Essence When It Comes to Residential Construction Liens

Mississippi Court Finds That Noxious Gasses Emitted By Defective Drywall Are "Pollutants" For Purposes Of Applying Total Pollution Exclusion

Subrogation vs. Right to Repair in Defective Construction Claims

Notice of Defect: Now What?

Essential Apps for Trial, Round Two

South Carolina Supreme Court’s Interpretation of an "Occurrence" Affords Expansive Scope of Coverage Under General Liability Policies

Construction Risk Insights: A Word to the Wise About Construction Defects

Get It in Writing … Please!

Alabama Supreme Court Weighs in Again on Faulty Workmanship as an “Occurrence”

“Just ‘Cause I Said It, Don’t Mean That I Meant It” – Not When it Comes to Construction Contracts

Issue and Claim Preclusion When Forced to Litigate Similar Issues in Different Forums: White River Village, LLP v. Fidelity and Deposit Company of Maryland

Colorado’s Federal District Court Finds Carriers Have Joint and Several Defense Duties

The Changing Landscape of Defective Construction Claims and Commercial General Liability Policies

New Home Construction Defects in Georgia: Your Rights Against the Builder

5 Document Management Strategies that Reduce Burdens of E-Discovery in Construction Claims

Be Sure to Keep Up with Mechanic's Lien Changes

Does Right to Repair Act Eliminate a Property Owner’s Common Law Rights and Remedies for Actual Damages?

Subcontractor Default Insurance — a Cautionary Tale

Tweaked & Overhauled: The Latest on Virginia Construction Law

Claims, Public Records & the Work Product Exception

Contract Notice Requirements

Resolving Conflicts in Design Criteria

California Appellate Court Expands Rights to Homeowners in Construction Defect Cases beyond Remedies Provided in the California Right to Repair Act

Is Faulty Workmanship an Occurrence Under a CGL Policy? West Virginia Now Says Yea

Florida Homeowners Are Entitled to Replacement Cost Without First Entering Into a Contract or Incurring the Costs

September 2013

Economic Loss in Colorado

New Mexico’s Economic Loss Rule—It Exists, but Its Limits are To Be Determined

Utah’s Economic Loss Rule

California’s Economic Loss Doctrine – Limits on Tort Recovery

Summary of Nevada Law on the Economic Loss Doctrine in the Context of Commercial Construction Disputes

Application of the Economic Loss Rule in Arizona Since Flagstaff Affordable Housing Ltd. v. Design Alliance, Inc.

Arizona Court to Architect: You Have One Less Payment Tool than Your Contractor Counterparts

Zhang v. Sup. Ct.: Violation of Unfair Insurance Practices Act May Support Unfair Competition Claim

Construction Concepts Tip #6: Architects

Arizona Contractors and Design Professionals Receive Additional Protections Under Arizona’s Public Anti-Indemnity Statutes

California Appellate Court Expands Rights to Homeowners in Construction Defect Cases Beyond Remedies Provided in the California Right to Repair Act

Why Do Lawyers Focus on Certain Things in OSHA Inspections?

Important Terms in Construction Contracts – Part I

Stresscon v. Travelers: A Victory For Policy Holders

Wisconsin Joins Other States Which Regulate Exterior Storm Repair And Insurance Claim Practices

Air Quality Thresholds of Significance Not a “Project” Under CEQA

Soon as I Get Paid - The Use of Joint Check Agreements on Construction Projects

Views From The Expert: The Misuse of the Term “Industry Standards”

Court Rejects Expert Report Update as Too Much, Too Late

The Duty to Defend Is Broader Than the Duty to Indemnify

California Court of Appeal Opens the Door for Construction Defect Claims Outside of SB800

What Role Should the Federal Government Play in Our Industry?

How To More Effectively Use An Expert Witness

Insurer Must Cover Total Amount of Settlement Even Absent Consent

August 2013

Construction Defects: The Duty To Preserve Evidence Of The Defects

With Home Warranties, Getting to Home Base Not Necessarily a Home Run

Establishing Contractor Compliance Programs, Part I

Establishing Contractor Compliance Programs, Part II

Establishing Contractor Compliance Programs, Part III

Georgia's Highest Court Clarifies that Defective Construction can be an "Occurrence" when the Damage is to the "Work" of the Insured and when the Insured is Sued for Breach of Warranty

10 Tips for Navigating the Bad Faith Maze

Waiver of Right of Appraisal in Property Insurance Claims

Two Steps Forward, One Step Back For General Contractors

Three Things to Know about Occurrence-Based Insurance

A (wiki) Construction Defect Timeline: Great Failures in Building History

Arizona Supreme Court has the Final Word—again—on Economic Loss Doctrine

Proof of Loss Pointers and Practical Observations

Nevada Supreme Court Extends Design Professional Economic Loss Rule Defense to Negligent Misrepresentation Claims on Commercial Construction Projects

California Supreme Court Finally Decides How a UCL Claim and First Party Bad Faith Claim Can Co-Exist

July 2013

Limitation of Liability Contract Provision Enforced – Hotel Owner Loses $4.1 Million

A Claim Without Foundation — how Concrete are your Definitions?

Top 3 Things Contractors Need To Do When The Actual Work Site Differs From The Expectations

Construction Law Insight: Important Change To Minnesota's Anti-Indemnification Law

Spoliation of Evidence: An Overview of Factors to Consider on a Construction Project

Job Site Accidents Can Lead to Negligent Spoliation of Evidence

Spoliation in Minnesota Construction Defect Cases: The Duty to Preserve Evidence is Not Absolute

Spoliation: Notice and Opportunity to Inspect

Indemnity Clauses, Anti-Indemnity Legislation and Additional Insureds

Implied Warranty of Habitability

Economic Loss Rule and Tort-based Claims

Replacement Cost Property Policies Cover Contractor's OH&P -- says Florida Supreme Court

Indemnity for Active Negligence or Willful Misconduct now Prohibited in California

West Virginia Joins Increasing Majority of States Finding Coverage for Defective Construction

Personal Property Insurance: You Are What You Own

California Decision Approves Shortening Statutes Of Limitation And Eliminating The Discovery Rule Via Contract

Pay-if-Paid Clauses and Payment Bonds

Can Expert Statements Inadvertently Waive Protection?

June 2013

New Considerations With Respect to Statute of Ultimate Repose

Solar Construction: Too Hot to Handle?

What Lies Ahead As Florida Transitions To Daubert

New York Court Refuses To Limit The Scope Of Appraisal

Say it Ain’t So Joe! – Developer Learns There is More Than One Meaning for SOL

Contractual Obligations to Indemnify and Insure: the Language Does Matter

Owner and Developer Implied Duties in Construction Projects

Rick Scott Signs Expert Witness Standard Overhauls into Law

Home Insurance Bill Protects Against Dropped Coverage After Loss From Catastrophe

CT Supreme Court Capstone Decision Limits Scope Of Insurers’ Liability

Sophisticated Parties? You May Shorten Both The Start And Length Of The Statute Of Limitations In CA Commercial Construction Contracts

6 Factors Impacting the Claims Caseload

May 2013

When Is The Best Time To Hire An Expert?

Resulting Property Damage To Non Faulty Work Is An “Occurrence”

Understanding Florida's Mechanic's Lien Laws: What Is A Notice Of Commencement?

Confusion Over Construction Defect Liability Spawns Legal Battles

Appraisal May be Appropriate in New York, Even if There Are Coverage Issues

Legal Matters: Law Clears up Confusion on Defect Claims

Will My Construction Defect Claim Be Covered In Texas

50 Top Apps for Independent Agents

The Mechanics of Mechanics Liens

Florida Enacts Law to Protect Design Professionals

A Step in the Right Direction: Appraisal Awards Satisfy Condition Precedent to Bad Faith Actions

Florida Appellate Court Holds That Appraisal Panel Cannot Set Amount Of Loss For Ordinance and Law Until That Expense Is Incurred

Xactware Provides Pre- and Poststorm Roof InSight

Two Cases Analyze Faulty Workmanship Claims Under CGL Policies, With Contrary Results

Cracked Houses: What the Boom Built

Florida Appellate Court Holds Water Loss That Results From A Deteriorated Pipe Is Covered

Missed Your Lien Deadline – What Now?

In Faulty Workmanship Cases, Insuring Clause Dogs are Wagged by Exclusion Tails

Careful Drafting Can Prevent Dispute Clauses from Being Ignored

Surviving a "Gatekeeping" Challenge – Expert Rulings Shed Light

April 2013

Views From The Expert: Top 3 Liabilities Facing Design Professionals

Expert Witness Bill Could be in Jeopardy

Consulting Experts – The Danger of Discovery

An Appraisal Award May Not Be Binding in Illinois: A Policy Must Unambiguously Waive the Policyholder's Access to Court

Lawmakers Kill Lawsuit Limits on Condo Defects

Superstorm Sandy Is Causing New York And New Jersey Legislators To Reconsider Passing Legislation That Would Establish A Private Right Of Action For Bad Faith Claim Handling

Space Mountain Closed: Three Disneyland Attractions Closed for OSHA Violations

Florida Property Owners: Be Aware Of This Procedure Before Filing A Construction Defects Claim

Construction Corner: the Legal Consequences of Construction Delays – (a Refresher)

Superstorm Sandy: Multiple Occurrences Could Help Maximize Coverage

California Plumbs The Depths Of Water Damage Exclusions

Drowning in a Sea of Tort: The Florida Supreme Court Reels in the Economic Loss Rule

Pay-If-Paid Clauses: Unfairness in Private Construction?

Insurance Carriers Have Duties Too Once They Receive Notice Of A Loss

Should Insurance Companies Fight Their Customers During Appraisal

Bad Faith Claims Cannot Be Based Solely On Breach Of Contract And Must Allege More Than Conclusory Allegations

Umpire Selection--Can a Neutral Umpire Really Be Selected?

Insurance Coverage Lessons From Katrina: Insurance Companies Should Be Protecting Policyholders, Not Insurance Companies

Differing Site Condition Denial

A Valid Contract Limits the Amount of a Mechanic's Lien, even Against a Party with No Direct Contract with a Contractor

Views From The Expert: The Misuse of the Term “Industry Standards”

Contractor Insurance Issues - Are You Covered?

March 2013

Construction Law And Litigation Committee Newsletter - Economic Loss Rule

Complying With New ADA Standards For Accessibility

Colorado Court of Appeals Rules that Contractors may be Liable for Dangerous Site Conditions Before and After Work is Complete

Two Recent Cases Underscore Daubert’s Flexibility

California Supreme Court Case Sets New Standards for Expert Testimony

The Architect's Role In The Construction Project

Arbitration or Arbitrary? A Guide to Help You Decide Whether to Arbitrate Construction Disputes

Essential Provisions In A Construction Contract

Supreme Court Insurance Ruling a Setback for Class Action Claimants

Who is liable for faulty Florida construction, insurer or contractor?

Awesome Apps for Adjusters- Part I

Importance of Using Consistent Terms in a Construction Contract

When Negligence = Murder: Building Defects Result in Manslaughter Charges

Bad Faith Statute Available to Additional Insured for Defense Costs Reimbursement

Oopsy Dixit: Expert Witness Challenges

New York and New Jersey Announce Mediation Program for Superstorm Sandy Related Insurance Claims

Texas Court – Appraisal Award Insufficient to Defeat Insured’s Breach of Contract Claim

Sworn Proof of Loss Is a Condition Precedent, and Presumption of Prejudice Applies: Florida’s 3rd DCA Reverses Summary Judgment for Insurer

Do Expert Witness Fees Impact Access? High Court Considers

February 2013

Contractor Obligated To Care for Its Collaborative Partner, the Designer

The Economic Loss Rule (ELR)

Mechanic's Liens: is it too Late?

Is Defective Construction an “Occurrence”? The Answer isn’t so Concrete

Recent Minnesota Supreme Court Case May Limit Additional Insured’s Rights And Indemnity Obligations In Construction Contracts

Insurance Companies Beware: Refusing to Pay Sinkhole Claims May Lead to Bad Faith Damages

State Courts Limit CGL Coverage for Property Damage Arising from Defective Construction

Lay Down the Swords and Mediate your Construction Dispute

Regulating the Appraisal Industry---Is it Time?

Insurance Appraisal as an Insurance Claim Dispute Resolution Tool

Construction Defect Claims, Part 2a: Defining An Occurrence

Appraisals, Breach of Contract and Bad Faith: Is There a Connection?

January 2013

State Farm v. Campbell Should Be Revisited – Punitive Damages in Insurance Bad Faith Claims

The Hidden Dangers of Construction Defect Litigation: A Redux

What Pet Peeves Attorneys have about Professional Clients

First Expert Rule: Keep It Concrete

Do Not Become a ‘Damaged’ Expert

Late Expert Disclosure & Sanctions – Is ‘Clarity’ Needed?

Are we About to See a Flood of New OSHA Rules?

Cause and Effect: Managing the Construction Defect Claim

Sworn Proof of Loss is a Condition Precedent, and Florida’s 5th DCA Applies Presumption of Prejudice Rule

CGL Coverage - "Occurrence" Defined in Ohio

The Strange Case of the Losing Winner

Legal Matters: A Closer Look at Four Pivotal Construction Law Cases

New Wave of “Occurrence” Statutes Doesn’t Affect Old Policies

Attorneys’ Fees and Prejudgment Interest Recovery in Appraisal Context: Florida Federal Court Determines Attorneys’ Fees Are Appropriate, but Prejudgment Interest Is Not


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