Atlanta Personal Injury Lawyer - http://msweetnam.com - specializing in personal injury, wrongful death, environmental law, construction law and general business representation.
Sweetnam & Schwartz LLC is a multi-disciplinary law firm based in Atlanta, Georgia. We specialize in the practice of personal injury, wrongful death, environmental, construction and general business law. The focus of the Firm is to provide a superior level of legal representation to its clients in a cost effective and conscientious manner.
Operating as usual
Years ago when I was an Assistant Regional Counsel at the Environmental Protection Agency (EPA), Region 4 and the lead attorney for wetlands matters, I debated whether to use EPA's authority under the Clean Water Act (CWA) to veto permits issued by …
In April 2008, the EPA issued final regulations under the Toxic Substances Control Act (TSCA) to address lead-based paint hazards in child-occupied and target housing, including residential structures and public and commercial buildings constructed …
The US Environmental Protection Agency, Region 4 (EPA) proposed initial penalty of over $300,000 for alleged violation of lead based paint (LBP) regulations threatened the economic survival of our client, the owner of a medium-sized apartment complex …
On April 16, 2013, the US Environmental Protection Agency, Office of Solid Waste and Emergency Response (OSWER), released for public comment draft final vapor intrusion guidance documents. The first guidance document is general guidance for all …
The focus on pharmaceutical waste is increasing at the Federal and state levels. The United States Environmental Protection Agency ("EPA") has announced that it will develop a new rule to address the management and disposal of hazardous waste …
The US Environmental Protection Agency ("EPA") issued a proposed rule on Feb. 22, 2013, that would require 36 states, including Georgia, to revise the startup, shutdown, and malfunction ("SSM") rules in their Clean Air Act State Implementation Plans …
On January 10, 2013, Ed Schwartz made a presentation to the Real Estate Section of the Atlanta Bar Association regarding environmental issues in real estate transactions. Ed explained the various environmental laws that may impact the interests of a …
Ed Schwartz successfully resolved an administrative enforcement matter in which the US Environmental Protection Agency, Region 4 alleged multiple violations of the Toxic Substances Control Act (TSCA) by a client involved in chemical manufacturing. …
Expanded Scope Of Liability For Property Insurers In Georgia
Property Insurers need to be aware of a recent decision of the Supreme Court Of Georgia regarding the scope of exposure for damage to real property. The United States Court Of Appeals for the Eleventh Circuit certified a question of law to the Supreme Court Of Georgia in the matter of Royal Capital Development LLC v. Maryland Casualty Company 659 F.3d 1050 (11th Cir. 2011). Essentially the Supreme Court was called upon to decide whether an Insurer was responsible not only for the cost of repair but whether it was further required to compensate the property owner for any diminution in value associated with stigma attached to the property due to it having been damaged? The Supreme Court Of Georgia answered in the affirmative thus potentially expanding significantly the extent of the risks insured against under a contract insuring either residential or commercial property.
Although the measure of damages with regard to injury to real property has long been either the loss in value to the property or alternatively the cost of repair, the Supreme Court reiterated that repair serves "only to abate, not eliminate, the insurer's liability for the difference between pre-loss value and post-loss value." The application of this principle to damage to real property represents a significant expansion of an insurer's potential liability for this kind of injury. By way of example, in the Royal Capital case, Maryland Casualty paid approximately 1.1 million dollars for the costs of repair to Royal Capital's building. The property Owner then filed a lawsuit seeking damages for the diminution in value aspect of its claimed damages in the amount of 5.6 million dollars!
Royal Capital owned an 8 story commercial building in Atlanta which suffered structural damage due to severe vibration caused by construction work on an adjacent site.
The last sentence of the Supreme Court Of Georgia's opinion in this case should be considered carefully by the insurance industry. "Accordingly, whether damages for diminution of value are recoverable under Royal Capital's contract depends on the specific language of the contract itself and can be resolved through the application of the general rules of contract construction".
Whether pursuing or defending a claim property owners and their insurers are well advised to retain counsel familiar with the intricacies of both how to trigger coverage in the first instance and how to limit exposure in the latter. The attorneys at Sweetnam & Schwartz LLC have extensive experience in both arenas.
Expanded Scope Of Liability For Property Insurers In Georgia
Property Insurers need to be aware of a recent decision of the Supreme Court Of Georgia regarding the scope of exposure for damage to real property. The United States Court Of Appeals for the Eleventh Circuit certified a question of law to the Supreme Court Of Georgia in the matter of Royal Capital Development LLC v. Maryland Casualty Company 659 F.3d 1050 (11th Cir. 2011). Essentially the Supreme Court was called upon to decide whether an Insurer was responsible not only for the cost of repair but whether it was further required to compensate the property owner for any diminution in value associated with stigma attached to the property due to it having been damaged? The Supreme Court Of Georgia answered in the affirmative thus potentially expanding significantly the extent of the risks insured against under a contract insuring either residential or commercial property.
Although the measure of damages with regard to injury to real property has long been either the loss in value to the property or alternatively the cost of repair, the Supreme Court reiterated that repair serves "only to abate, not eliminate, the insurer's liability for the difference between pre-loss value and post-loss value." The application of this principle to damage to real property represents a significant expansion of an insurer's potential liability for this kind of injury. By way of example, in the Royal Capital case, Maryland Casualty paid approximately 1.1 million dollars for the costs of repair to Royal Capital's building. The property Owner then filed a lawsuit seeking damages for the diminution in value aspect of its claimed damages in the amount of 5.6 million dollars!
Royal Capital owned an 8 story commercial building in Atlanta which suffered structural damage due to severe vibration caused by construction work on an adjacent site.
The last sentence of the Supreme Court Of Georgia's opinion in this case should be considered carefully by the insurance industry. "Accordingly, whether damages for diminution of value are recoverable under Royal Capital's contract depends on the specific language of the contract itself and can be resolved through the application of the general rules of contract construction".
Whether pursuing or defending a claim property owners and their insurers are well advised to retain counsel familiar with the intricacies of both how to trigger coverage in the first instance and how to limit exposure in the latter. The attorneys at Sweetnam & Schwartz LLC have extensive experience in both arenas.
PROACTIVE PROJECT OWNERS AND GENERAL CONTRACTORS CAN OFTEN DEFEAT FIRST AND SECOND TIER LIEN CLAIMANTS BY IMPLEMENTING BEST PRACTICES
Last year we published a blog entry regarding the importance of notices of commencement and non assignment clauses to general contractors. Both properly filed notices of commencement and non assignment clauses in general contracts and subcontracts can limit the number of entities able to assert viable lien claims. In the first instance, a properly filed notice of commencement renders it incumbent upon second tier sub contractors and material suppliers to properly serve a notice to contractor or risk losing their lien rights. In the second instance any sub subcontractor or material supplier which performs labor for or supplies materials to a prime subcontractor with a non assignment clause in its primary contract must be made known to the general contractor or owner or they too may not be able to assert any lien. (See O.C.G.A. 44-14-365.1(b) and Benning Construction Company v. Dykes Paving, 263 Ga. 16, 426 S.E. 2d 564). As such the proactive project owner or general contractor can set up roadblocks designed to limit exposure to having to pay twice for the same services.
What happens if despite your best efforts and best practices a lien or liens are nonetheless properly filed? A procedure afforded by the revisions made to the Georgia lien statutes can often be effective in defeating even liens which are properly filed. Georgia now allows an Owner or Contractor to file a "Notice Of Contest Of Lien" to shorten the time period a lien claimant has to sue to perfect its claim of lien. The Notice includes the following directive aimed at the lien claimant after some preliminary language identifying the lien being challenged: The above referenced lien will expire and be void if you do not: (1) commence a lien action for recovery of the amount of the lien claim pursuant to O.C.G.A. Section 44-14-361.1 within sixty days from receipt of this notice: and (2) file a notice of commencement of lien action within 30 days of filing the above referenced lien action. A copy must be sent by certified or registered mail or statutory overnight delivery to the lien claimant at the address listed on the lien within seven days of filing and proof of delivery must also be recorded with the superior court clerk. If no Notice Of Commencement Of Lien Action has been filed within 90 days of the filing of the Notice Of Contest the lien becomes extinguished by of law.
Since the amendments to the Georgia lien laws we have filed several Notices Of Contests Of Lien on behalf of Owners. In every case the lien claimants have failed to then follow the statutory steps necessary to perfect their liens and those liens have become void saving our client owners and general contractors significant sums of money.
The Importance Of Careful And Creative Claims and Damages Analysis In Construction Defect Claims
What constitutes an occurrence and covered resulting property damage in the arena of construction defect claims has been the source of pervasive litigation nationwide in recent years. A 2011 ruling by The Supreme Court Of Georgia clarified this issue to some degree and should be carefully studied both by Claimants and Insurers.
In American Empire Surplus Lines Insurance Company v....
Georgia Brownfields Update
In early March 2012, the Georgia legislature passed House Bill 994, which includes an amendment to the Hazardous Site Reuse and Redevelopment Act, O.C.G.A Section 12-8-202(b)(6), commonly referred to as the Georgia brownfields law. The amendment provides that a purchaser of property is no longer required to apply for participation in the brownfields program prior to the purchase of property, at which there has been a regulated release; rather, the purchaser...
Consequential Damages Waivers In Construction Contracts
It has become common practice in the construction industry today for General Contractors to seek to include in any agreement with a Project Owner a clause requiring a mutual waiver of claims for consequential damages. In fact, such a clause has been a standard component of the AIA form construction contracts for well over a decade....
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Lien Waivers And False Swearing
In the current economic environment it is more important than ever that Project Owners and General Contractors be proactive in ensuring that their projects remain lien free and that payments they issue are properly applied to outstanding debts for labor and materials. This issue has previously been discussed in our Blog concerning notices of commencement and non-assignment clauses....
The Importance Of Notices Of Commencement And Non Assignment Clauses To The General Contractor
The Importance Of Notices Of Commencement And Non Assignment Clauses To The General Contractor
One of the most pressing concerns for a General Contractor on any project is to avoid the exposure associated with subcontractors and material suppliers filing liens against the Owner's property. One way to do this is to properly file a Notice Of Commencent....
Adequate Insurance Coverage
Adequate Insurance Coverage
Most Americans are badly underinsured. Imagine you are sitting at a red light and a drunk driver slams into you from behind causing you serious and debilitating injuries. The negligent driver who hit you has only minimal insurance coverage (or possibly none at all). You have $50,000.00 in medical bills and your claim in the hands of skilled personal injury counsel is worth several hundred thousand dollars....
Allstate And State Farm Continue To Rank Among The Worst Insurers
While so called tort reform rhetoric continues to be heard from politicians especially among republicans, the reality in the marketplace stands in stark contrast to the claims being made by the advocates for reform. Major insurance companies continue to routinely deny claims in bad faith. According to badfaithinsurance.org, Allstate and State Farm are consistently among the worst insurers....
Liens For Medical Bills Are Important Considerations For Any Georgia Injury Victim
If you have been in an accident and have no medical health insurance there is a real and substantial risk that any settlement or verdict you obtain could be dramatically reduced by outstanding debts to medical providers. It is essential to be represented by an experienced Georgia injury attorney when dealing with medical providers.
Under Georgia law a medical provider such as a doctor's office or a hospital has the ability...
Strong Enforcement of Environmental Laws Anticipated For 2011
In a speech given on January 13, Assistant Attorney General Ignacia Moreno addressed 2011 priorities for the Environment and Natural Resources Division of the US Department of Justice. Ms. Moreno stressed the commitment of the Division to strong enforcement of all environmental laws to ensure the protection of air, water, and other natural resources, as well as the health of all Americans....
Perfecting Construction Liens In Georgia
There have been a number of changes made to the requirements for properly filing and perfecting a construction lien in Georgia. This legislation took effect on March 31, 2009. Experienced construction counsel should always be consulted when seeking to properly enforce a contractor's lien.
1. The lien form itself has been altered in two respects....
Liability of Corporate Officers In Georgia
Directors and officers are being held liable at an increasing rate for violations of environmental laws and regulations by their corporations. A recent case, in which our Atlanta environmental law firm was involved, from a federal court in Georgia demonstrates the ever-widening scope of personal liability of corporate officers.
In Draper v....
Property Manager in Georgia Liable for Hazardous Waste Disposal of Tenant
In a lawsuit in which this environmental law firm participated, the US District Court for the Northern District of Georgia held that a property manager of a shopping center, although not liable as an owner, was liable as an operator of a hazardous waste disposal facility under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA),42 U.S.C §§ 9601 et seq., and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C....
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