Can a party repeatedly object to the arbitrator’s jurisdiction, continue in the arbitration process, and then contest the arbitration award after the fact? That issue was recently considered by a federal court in Michigan. The court held that a subcontractor who filed a counterclaim and participated in discovery and arbitration hearings, had waived its rights to contest the jurisdiction of the arbitrator, despite written objections periodically placed on the record. This is another warning to those who want or need to seriously challenge the jurisdiction of arbitrators: don’t continue in the process if you’re going to object to arbitrability![Read More]
28 Feb · Fri 2014
Arbitrator Jurisdiction: Don’t Just Talk the Talk, But Walk the Walk
18 Feb · Tue 2014
Itemization of Mechanic’s Lien Not Necessary Where Construction Contract Apprised Owner of Lienor’s Claim
Section 38 of the NY Lien Law requires a holder of a mechanic’s lien to supply an itemized statement of labor and/or material which make up the amount for which a lien is claimed. The itemization is necessary to apprise the owner of the details of the lienor’s claim. The itemization, however, may excused in the limited circumstance where the lienor alleges that it has fully performed a fixed price construction contract.[Read More]
11 Feb · Tue 2014
Bertha and the Big (or not so big) Warranty
05 Feb · Wed 2014
Waiver of Subrogation – Two Reminders
30 Jan · Thu 2014
Duane Morris' Robert Hendrickson and Ron Oliner on "Public Works Projects and Municipal Bankruptcies"
22 Jan · Wed 2014
Lifespan of a Bridge Span
17 Jan · Fri 2014
Personal Privacy vs Public Records Laws (prevailing wage version)
07 Jan · Tue 2014
Strict Liability Standard for Prevailing Wage Law Violation
The Massachusetts high court has applied a strict liability standard to the prevailing wage law, similar to standards applicable to other employment wage laws. The fact that one violation arose from a clerical error, discovered and rectified even before the citation issued, was no defense. A contractor can be liable for penalties even for unintentional violations. This is a cautionary tale for all contractors.[Read More]
25 Nov · Mon 2013
Dealing With Out-of-State Vendors – Where Can You Be Sued?
20 Nov · Wed 2013
Lien Equals Security Interest, but Lien Does Not Equal Proof of Amount Due
A lien claimant has learned the hard way that proof of the amount due must be established at trial, and one cannot simply rely on the existence of the lien claim to prove what is due. Absent the necessary proof, the lien will be dismissed.[Read More]
07 Nov · Thu 2013
Prevailing Party Clauses – Draft With Care
06 Nov · Wed 2013
"Negligent Entrustment" of Construction Equipment
01 Nov · Fri 2013
Duane Morris Named Law Firm of the Year for Construction Law by U.S. News-Best Lawyers for the Second-Consecutive Year
Only one law firm is recognized as the 2014 Law Firm of the Year per practice group. According to U.S. News Best Lawyers, Duane Morris received this designation for Construction Law due to its impressive overall performance.
For the full story, please click here.
30 Oct · Wed 2013
Department of Buildings Expands Online Filings and Approvals
18 Oct · Fri 2013
Overlooked Obtaining an Additional Insured Endorsement? You Might be Saved by the Automatic Additional Insured Endorsement – or Might Not.
Many CGL policies typically include an endorsement that contains a clause providing for automatic additional insured status without a project specific schedule listing names of additional insureds. (See, for example, form CG 2033 0704, "Additional Insured-Owners, Lessees or Contractors – Automatic Status When Required in Construction Agreement With You"). By this endorsement the "Who is An Insured" provision is amended "to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy." That can be a fail-safe mechanism when upstream contracting parties neglect to obtain necessary written endorsements naming specific parties. However, it only goes so far.
In a recent decision  , a court concluded this endorsement means exactly what it says when a construction manager and owner sought additional insured status from a general contractor's plumbing subcontractor. The construction manager and owner relied on the automatic additional insured endorsement as there was no specific naming endorsement reflecting those parties as additional insureds. The court found it was undisputed that there was no written agreement between the subcontractor and the construction manager or owner. Thus, there was no coverage for them. Even considering arguments that the subcontract incorporated by reference the general contractor's contract with the construction manager, which required the general contractor – and thus arguably the subcontractor - to name the owner and construction manager as additional insureds, those organizations simply did not qualify under the terms of the endorsement (viz. "when you and such person or organization have agreed in writing"). It is the terms of the policy that controls the insurers obligation, not the terms of the contract. Only the general contractor had a written agreement with the subcontractor and thus qualified, and the coverage clams by the others were accordingly dismissed.
Getting a specific naming endorsement - and one without the limiting language of the automatic clause noted above – is the only way to proceed. The contract terms themselves will not suffice, nor will a certificate of insurance, as we all know.
As an alternate, the Insurance Services Office has recently published a series of modified additional insured endorsement forms including a new one, CG 2038 0413, which adds the following to A. Section II – Who is an Insured: "any other person or organization you are required to add as an additional insured under the contract or agreement described in Paragraph I above."
That should address that problem. Not solved, however, is the problem with that form’s - as well as its alternate CG 2033 0413 - exclusive application to on-going operations with no coverage to additional insureds for completed operations of the named insured.
 Turner Construction Co. v. The Harleysville Worchester Insurance Co., 2013 N.Y. Misc. LEXIS 4183, 2013 N.Y. Slip Op 32209(U), Supreme Court, New York County, September 13, 2013.
 The endorsement is quoted by the court but not identified by form number but likely was the 0704 edition of CG 2033 because the policy was issued for 2007