Archive: 2018

1
The Tenth Circuit’s Prediction: New York State Likely to Follow Trend Recognizing Damages Caused by Subcontractor’s Faulty Work is a Covered “Occurrence”
2
A New (Sort of) Class Action in Protection of European Consumers
3
In Site – Spring 2018 Edition
4
Sub-clause 20.1 of the FIDIC Under Polish Law – Is It an Enforceable Time Bar?

The Tenth Circuit’s Prediction: New York State Likely to Follow Trend Recognizing Damages Caused by Subcontractor’s Faulty Work is a Covered “Occurrence”

By Frederic J. Giordano, Stephanie S. Gomez                     

The United States Court of Appeals, Tenth Circuit recently issued a favorable decision for policyholders finding property damage arising from a subcontractor’s faulty work arose from an accidental “occurrence” under New York law.  In Black & Veatch Corp. v. Aspen Ins. (UK) Ltd,[1] a 2–1 Tenth Circuit panel agreed with Black & Veatch Corp. (“B&V”) that its excess policy — which contained a New York choice-of-law provision — covered claims for property damage to a third party caused by its subcontractor’s faulty work.[2]  The Tenth Circuit reversed the district court’s ruling that B&V’s subcontractor’s faulty work caused damage to only B&V’s own work and, therefore, was not a covered “occurrence.”[3]  The Tenth Circuit concluded the New York Court of Appeals would likely find the subcontractor’s faulty work was an accidental “occurrence,” following the growing trend of other state high courts that have addressed this coverage issue under commercial general liability (“CGL”) polices.[4]  Policyholders — whose policies are governed by New York law — should take notice and consider the implications of this decision on whether New York will soon join the majority view that faulty workmanship by a subcontractor can be an occurrence under CGL policies.

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A New (Sort of) Class Action in Protection of European Consumers

By Ignasi Guardans

Background
The European Commission (“Commission”) presented this initiative in the context of a proposed revision of the EU framework on consumer protection. The “Package” (as the name goes when several independent legal texts are intended to be negotiated together)  called “New Deal for Consumers,” builds on the Commission review of consumer law rules that was conducted as part of the so called Regulatory Fitness and Performance Program (REFIT). This is a policy program intended to keep EU law simple, removing unnecessary burdens and adapting existing legislation without compromising on policy objectives.

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In Site – Spring 2018 Edition

By Kevin Greene, Inga K. Hall, Nicola J. Ellis, Camilla de Moraes, and Sarah A. Drinkwater, K&L Gates, London

Welcome to the Spring edition of “In Site”. This edition provides an update on the new 2017 FIDIC suite of contracts as well as brief case notes on recent interesting and important cases dealing with:

  • entitlement to an extension of time in circumstances of concurrent delay (in North Midland Building Ltd v Cyden Homes Ltd);
  • payment notices and pay less notices (in Grove Developments Ltd v S&T (UK) Ltd);
  • payment for pre-construction services (in Almacantar (Centre Point) Limited v Sir Robert McAlpine Limited);
  • limitation of liability (in Royal Devon and Exeter NHS Foundation Trust v ATOS IT Services UK Limited); and
  • termination provisions (in Interserve Construction Ltd v Hitachi Zosen Inova AG).

To view the full Spring 2018 Edition of In Site on K&L Gates HUB, click here.

Sub-clause 20.1 of the FIDIC Under Polish Law – Is It an Enforceable Time Bar?

By Dominika Jędrzejczyk

Whether the lapse of the 28-day notification period under sub-clause 20.1 of the International Federation of Consulting Engineers (FIDIC) Red and Yellow Books renders the contractor’s claim time-barred has been a point of interest for courts in civil law jurisdictions for years. Polish courts have also not shied away from commenting upon the legal nature of sub-clause 20.1. The legal landscape seemed relatively settled in this regard until March 2017, when the Supreme Court took an unequivocally pro-employer perspective on the matter.

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