ANAHEIM CALIFORNIA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Critical Updates in Builders Risk Claim Recovery: Staying Ahead of the "Satisfactory State" Argument and Getting the Most Out of LEG 3

December 11, 2023 — Gregory D. Podolak & Cheryl L. Kozdrey - Saxe Doernberger & Vita, P.C.
Builders risk claims routinely involve complicated and aggressive debate about the interplay between covered physical loss and uncovered faulty work. However, denials on this front have recently experienced a noticeable uptick in frequency, creativity, and aggressiveness. The insurer arguments concentrate in two key areas with a common theme – that any damage associated with a construction defect is not covered:

1. Defective construction does not qualify as a “physical” loss to trigger the insuring agreement; and
2. Any natural results of defective construction are excluded as faulty workmanship, even with favorable LEG 3 or similar language.

Neither of these arguments should impede access to coverage in the majority of scenarios. To ensure as much, it is incumbent on the savvy policyholder to understand the insurer tactics, be prepared to spot them early, and have thoughtful counter positions at the ready to address them decisively. Reprinted courtesy of Gregory D. Podolak, Saxe Doernberger & Vita, P.C. and Cheryl L. Kozdrey, Saxe Doernberger & Vita, P.C. Mr. Podolak may be contacted at GPodolak@sdvlaw.com Ms. Kozdrey may be contacted at CKozdrey@sdvlaw.com Read the full story...

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Florida's New Pre-Suit Notification Requirement: Retroactive or Prospective Application?

February 05, 2024 — Holly A. Rice - Saxe Doernberger & Vita, P.C.
Florida’s newly formed Sixth District Court of Appeal (“Sixth DCA”) recently certified conflict with Florida’s Fourth District Court of Appeal on the issue of retroactive application of the pre-suit notice requirement contained in Florida Statute §627.70152.1 Earlier this year, the Fourth District Court of Appeal (“Fourth DCA”) held that the pre-suit notice provision applies retroactively, meaning, it applies to all suits filed after July 1, 2021, regardless when the insurance policy was issued.2 The Sixth DCA, in Hughes v. Universal Property & Casualty Insurance Company,3 directly rejected the Fourth DCA’s interpretation and instead found a retroactive application of the pre-suit notice to be unconstitutional under Florida law. Prior to the Fourth DCA’s ruling, most trial courts had found no retroactive application for the pre-suit notice provision.4 In August 2021, shortly after Florida Statutes Section 627.70152 went into effect on July 1, 2021, Rebecca Hughes (“Hughes”) sued Universal Property & Casualty Insurance Company (“Universal Property”) for breach of contract after Universal Property denied her insurance claim. Hughes did not file a pre-suit notice under Section 627.70152. Universal Property moved to dismiss based on Hughes’ failure to file the pre-suit notice, arguing that the pre-suit notice requirement applies to all lawsuits filed after July 1, 2021, even if the claimant’s insurance policy was issued before the statute’s effective date. The trial court agreed with Universal Property and dismissed the lawsuit. Read the full story...
Reprinted courtesy of Holly A. Rice, Saxe Doernberger & Vita, P.C.
Ms. Rice may be contacted at HRice@sdvlaw.com

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Insurer's Bad Faith is Actionable Tort for Purposes of Choice of Law Analysis

January 08, 2024 — Janeen M. Thomas - Saxe Doernberger & Vita, P.C.
When an insurer handles a claim in violation of its duty to act in good faith, policyholders are often eager to sue the insurer for bad faith, seeking extra contractual damages. Before filing suit, however, it is critical that policyholders consider what state’s law applies to the bad faith claim. In the recent case of Scott Fetzer Co. v. Am. Home Assurance Co., Inc.1, the Ohio Supreme Court held that Restatement (Second), Conflict of Laws, § 145 (“Section 145"), governed the choice of law dispute, which meant that the insured would be able to obtain discovery of Travelers’ claims-handling procedures, guidelines, internal documents, and communications relating to the claim.2 The insured, Scott Fetzer, argued that the materials were discoverable because documents evidencing an insurer’s bad faith are not protected by attorney-client privilege in Ohio. In response, Travelers argued that the laws of either Indiana (the place where the parties entered into the insurance contract), or Michigan (the location of the insured risk) governed the discovery dispute because Restatement (Second) § 193 (“Section 193”) governs the choice of law analysis for claims that “arise out of insurance contracts.”3 The laws of either Indiana or Michigan were more favorable for Travelers because Indiana does not allow discovery of materials covered by attorney-client privilege, and Michigan does not even recognize a cause of action for bad faith. Read the full story...
Reprinted courtesy of Janeen M. Thomas, Saxe Doernberger & Vita, P.C.
Mr. Thomas may be contacted at JThomas@sdvlaw.com

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Appellate Court Lacks Jurisdiction Over Order Compelling Appraisal

January 16, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The 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. 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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Homeowner Who Wins Case Against Swimming Pool Contractor Gets a Splash of Cold Water When it Comes to Attorneys’ Fees

February 05, 2024 — Garret Murai - California Construction Law Blog
Looking outside as of late it seems like the glorious, sun-drenched days of Summer are just a nostalgic memory of days long gone. So, to bring back some of those warm-weather memories, I have a swimming pool case for you. Although, like most of the things we write about here on the California Construction Law Blog it’s not all fun-in-the-sun. The Lee Case In Lee v. Cardiff, 94 Cal.App.5th 398 (2023), Homeowner Dianne Lee entered into a construction contact with contractor David Brian Cardiff doing business as Advantage Pools Bay Area for a swimming pool and landscaping project totaling $231,500. It must have been quite a pool. As these things sometimes go, a dispute arose and Cardiff left the job before its was finished. Lee later sued alleging breach of contract, negligent construction and violation of the Contractor State License Law. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Watchdog Opens Cartel Probe Into Eight British Homebuilders

April 02, 2024 — Damian Shepherd & Katharine Gemmell - Bloomberg
Britain’s top antitrust enforcer has opened an investigation into eight housebuilders to probe potential information sharing, sharpening scrutiny of a sector that’s failing to deliver enough affordable housing to meet demand. The Competition and Markets Authority has opened a cartel investigation into eight developers including Barratt Developments Plc, the Berkeley Group, Persimmon Plc and Vistry Group Plc. The investigation centers on concerns the companies may have exchanged competitively sensitive information, which could be influencing the build-out of sites and the prices of new homes. An initial review will take place until December. CMA Chief Executive Officer Sarah Cardell told Bloomberg Television the watchdog had seen potential evidence of companies exchanging information relating to pricing, sales rates, and incentives offered to new homebuyers. The watchdog has the power to fine firms a maximum penalty of as much as 10% of annual revenue and disqualify directors following cartel investigations. Reprinted courtesy of Damian Shepherd, Bloomberg and Katharine Gemmell, Bloomberg Read the full story...

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Natural Hydrogen May Seem New in Town, but It’s Been Here All Along

April 22, 2024 — Elina Teplinsky & Sheila McCafferty Harvey - Gravel2Gavel Construction & Real Estate Law Blog
When it comes to renewable energy, hydrogen is hailed as a pivotal resource in the zero-carbon game plan. Hydrogen energy is accessible, produces lower greenhouse gas emissions and can use existing gas infrastructure to power electricity and heat, produce other gases and fuels, and more. Recently, a “new” type of hydrogen—has captured the attention of climate scientists. Natural hydrogen—often referred to as gold hydrogen—stands apart from other, more established types of hydrogen, which require extraction and expensive maneuvering to produce. Natural hydrogen exists underground in its pure form (i.e., it’s not combined with other molecules). Estimates vary, but some researchers suspect that Earth holds as much as five million megatons of hydrogen beneath our feet. Extracting just 2 percent of that supply, in theory, has the potential to get us to net-zero emissions for 200 years. From Past Prediction to Accidental Discovery Viacheslav Zgonnik, CEO of the Denver-based startup Natural Hydrogen Energy, told the New York Times that Russian chemist Dmitri Mendeleev (also known as the “Father of the Periodic Table”) wrote about the presence of natural hydrogen as long ago as 1888. Somehow, the information was lost along the way, and when pockets of such hydrogen were occasionally found, they were treated as anomalies. Reprinted courtesy of Elina Teplinsky, Pillsbury and Sheila McCafferty Harvey, Pillsbury Ms. Teplinsky may be contacted at elina.teplinsky@pillsburylaw.com Ms. Harvey may be contacted at sheila.harvey@pillsburylaw.com Read the full story...

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Former NYC Condo Empire Executive Arrested for Larceny, Tax Fraud

March 11, 2024 — Ava Benny-Morrison - Bloomberg
A former New York executive facing lawsuits over the collapse of real estate empire HFZ Capital Group has been arrested in Miami, charged with grand larceny and tax fraud. Nir Meir, 48, was arrested Monday, a spokesperson for the Miami-Dade Police Department confirmed. Meir was detained on an out-of-state warrant, suggesting his arrest may be the result of an investigation by law enforcement in New York. A spokesperson for the Manhattan District Attorney’s Office didn’t immediately respond to a request for comment. Meir’s attorney also didn’t immediately respond to an email. Meir, the former managing principal of HFZ Capital Group, has been battling multiple lawsuits in New York over his involvement in the once-prominent real estate firm. He’s denied wrongdoing. Read the full story...
Reprinted courtesy of Ava Benny-Morrison, Bloomberg

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