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May 2018

legislation

New Maryland Law Makes General Contractors Liable for Paying Their Subcontractors’ Employees

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At the tail-end of the 2018 legislative session, the Maryland General Assembly passed Senate Bill 853, making construction general contractors jointly and severally liable for the failure of their subcontractors to pay their employees in compliance with Maryland’s wage and hour laws. This new law will become effective October 1, 2018. California recently passed a similar measure, AB 1701, which is applicable to construction contracts entered into in that state on or after January 1, 2018. This controversial new Maryland law contains both a multiplier and an attorneys’ fees provision, dramatically increasing its impact. Under existing law, an employer that fails to pay an employee in accordance with Maryland’s wage and hour laws may be liable to the employee for up to three times the wages owed, plus reasonable attorneys’ fees and other costs. Until now, this liability has largely been confined to the direct employer-employee relationship. SB 853 expands the reach of Maryland’s wage and hour law, making a general contractor on a construction services project jointly and severally liable for a subcontractor’s failure to properly pay its employees. The term “construction services” is broadly defined to include “building, reconstructing, improving, enlarging, painting, altering, and repairing” in connection with real property. Notably, the liability imposed by this new law is not limited to first-tier subcontractors; rather, it expressly applies “regardless of whether the subcontractor is in a direct contractual relationship with the general contractor.” So, a general contractor is now liable for every wage and hour law violation occurring on a construction project, including those committed by subcontractors far down the construction chain. The time frame for this liability is also expansive. A claimant may make a claim against both the general contractor and the non-paying party as soon as two weeks after a violation occurs, and as late as three years after the occurrence. For balance, the new law requires subcontractors to indemnify the general contractor for “any wages, damages, interest, penalties, or attorney’s fees owed as a result of the subcontractor’s violation.” This protection, however, is only as strong as the subcontractor’s ability to pay such damages and costs. SB 853 increases the likelihood that employees will sue both the general contractor and their direct employer when they believe they have not been properly paid. Because general contractors are now a target for additional litigation, the potential costs subject to indemnification by subcontractors will be increased by the general contractor’s costs of defense. Additionally, because the general contractor will not always be the direct employer of the plaintiff bringing such a claim, it may not have in its possession the employee-related documents necessary to defend a claim, including a potentially fraudulent claim. Notably, the law outlines two express exceptions to indemnification: (1) when indemnification is provided for in a contract between the general contractor and the subcontractor; or (2) when a violation arose due to the general contractor’s failure to make timely payments to the subcontractor. The potential consequences for subcontractors are also significant, as general contractors will likely require subcontractors to obtain a bond or insurance policy to protect against the possibility of wage claims brought by the subcontractor’s employees. No doubt, a general contractor will want coverage for three times wages, anticipated attorneys’ fees, and costs, not just for the subcontractor, but for lower tier subcontractors as well. Notably, because the limitation period for wage claims in Maryland is three years, bonds or insurance policies should be maintained for at least that period of time. All of these financial layers will necessarily increase the cost of construction projects in Maryland, making the environment even more challenging for smaller and newer subcontractors. While the law does not go into effect until October 2018, and the full impact is yet to be determined, general contractors should take steps now to minimize potential damages when a subcontractor fails to pay its employees in compliance with the Maryland wage and hour laws. https://www.jdsupra.com/legalnews/new-maryland-law-makes-general-57093/

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US agency asked to investigate miner’s reclamation bonds

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BILLINGS, MONT. Federal officials are being asked to investigate whether a financially-troubled coal company has posted sufficient bonds to cover future reclamation work at its mines in the U.S. and Canada. The Western Organization of Resource Councils, a Montana-based conservation group, said Wednesday that it was concerned that a bankruptcy by Westmoreland Coal Company could leave taxpayers to cover future reclamation costs. The group asked the Interior Department to investigate. Westmoreland, which is based in Englewood, Colorado, told The Associated Press in a statement that it is in full compliance with bonding regulations for all of its mines. “Westmoreland is 100 percent bonded by independent surety companies for the full costs of reclamation at all of its sites worldwide,” the company said. Bonds are required under U.S. and Canada laws to cover potential cleanup and reclamation costs incurred by taxpayers if a mining company is unable to carry out the work. Westmoreland sold 50 million tons of coal last year from its mines in Montana, Wyoming, New Mexico, Texas, North Dakota, Ohio, Alberta and Saskatchewan. Environmental regulators in Montana, Wyoming, North Dakota and Ohio told AP that Westmoreland was up to date on its bond obligations. In Texas, Westmoreland has been asked to provide an additional $3.2 million in bonds for its Jewett mine south of Dallas. The request came after the mine’s reclamation costs were recalculated by regulators, said Ramona Nye, a spokeswoman for the state Railroad Commission, which oversees the energy industry. Documents provided by Westmoreland showed that one of its customers, the power company NRG, is under contract to cover any additional bond obligations for Jewett. In Alberta, which holds $149 million in securities for the company’s mines, officials said they did not know if that amount was sufficient to cover reclamation costs because Westmoreland has not yet submitted its annual liability report. Information on Westmoreland’s mines in New Mexico and Saskatchewan was not immediately available. “It’s not clear to us what mines are sufficiently bonded versus what mines are not,” said Beth Kaeding, chair of the Western Organization of Resource Councils. “We don’t know what will happen in a mine area that’s not sufficiently bonded. We don’t believe it’s the taxpayer’s responsibility. It’s the company’s.” The Interior Department’s Office of Surface Mining Reclamation and Enforcement did not have an immediate response to the group’s request for an investigation, agency spokesman Chris Holmes said. Westmoreland disclosed last month in an annual report submitted to securities regulators that it was considering filing for bankruptcy protection. It appeared to get a temporary reprieve this week, receiving an extension until June 15 on the default date for a loan previously valued at more than $300 million, securities filings show. The company reported $673 million in surety bonds and letters of credit to cover future reclamation work, and listed $773 million in “projected final reclamation costs” for its mines. Read More … http://www.star-telegram.com/news/state/texas/article211246604.html

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Carl Icahn files lawsuit against AmTrust, controlling family

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(Reuters) – Activist investor Carl Icahn filed a lawsuit on Monday against AmTrust Financial Services Inc (AFSI.O) and the family that controls the company, accusing them of trying to take the insurer private at the wrong time and at the wrong price. The lawsuit filed in the Court of Delaware accuses Karfunkel-Zyskind family of engaging in a transaction which will transfer “huge amounts of value” belonging to the company’s public stockholders to the controlling family. Earlier on Monday Czech-based Arca Capital, which own 2.4 percent of total outstanding shares of AmTrust, said it plans to work with Carl Icahn and other minority shareholders in opposing the proposed privatization transaction. Icahn had disclosed a 9.38 percent stake in AmTrust on May 17. On March 1, AmTrust said it would be acquired in a $2.7 billion deal by a group of shareholders including its founding family, chief executive officer and private equity funds – a move that Icahn has strongly opposed. https://www.reuters.com/article/us-amtrust-fin-serv-stake-icahn/carl-icahn-files-lawsuit-against-amtrust-controlling-family-idUSKCN1IM1UJ

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Contractor wins motion for summary judgment [AmTrust]

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ORLANDO — A Florida contractor was granted its request against a former partner, according to a May 7 opinion of the U.S. District Court in the Middle District of Florida Orlando Division. Defendant Archer Western Contractors, LLC was hired by the Florida Department of Transportation to help with the construction of the Central Florida Commuter Rail Transit Station Project (Sunrail Project). Archer then went into partnership with Prince Land Services Inc., whose responsibilities were to do landscaping and irrigation for the Sunrail Project. Developer Surety and Indemnity Company (DSIC), the plaintiff, operated as surety when it provided a subcontractor performance bond with Prince named as a subcontractor and DSIC as surety, and Archer as obligee. The working relationship went awry after Prince allegedly defaulted on the subcontract. DSIC requested a declaratory judgment that Archer violated the bond agreement when it hired another subcontractor to replace Prince. DSIC and Archer filed a motion for summary judgment after Archer filed a counterclaim and stated DSIC was the party to breach the bond agreement, that Archer was justified in hiring a replacement contractor, and that DSIC is responsible to pay Archer the cost of remediating Prince’s default. It also stated DSIC owes Archer $631,148.65 plus fees and cost. The district court denied DSIC’s motion for summary judgment. It stated Archer did not violate the bond when it replaced Prince amid its default. The court pointed out the company’s actions during DSIC’s notice that Prince was in default stopped DSIC from moving forward with settling Prince’s default. The district court pointed out that hiring the replacement company was a good move as DSIC was unable to solve Prince’s default status. The district court also ruled Archer didn’t breach the bond when it didn’t provide DSIC with information to prove Prince’s claimed breach. Considering this, the court denied DSIC’s motion for summary judgment. The court then granted Archer’s motion concerning its counterclaims in requesting a declaratory judgement that DSIC breached the bond, as well as claims the company is responsible for the costs of remediating Prince’s default. It found DSIC is responsible to Archer through the terms of the bond and subcontract. “Archer acted in accordance with the subcontract and the bond at every stage, while DSIC’s conduct breached the bond,” the court ruled.

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Decade-old trouble comes to an end for Keystone Airpark [Hanover]

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KEYSTONE HEIGHTS – After being awarded over $2 million in damages, the Keystone Heights Airpark can start repairing problems that started after the 2008 construction of two new hangars. About 10 years ago, in October 2008, the small airport entered into a contract with Pipeline Contractors Inc., a Starke-based company that was awarded the bid for a hangar construction project. Once Pipeline had finished, the airport started noticing problems with the work. The pavement outside and concrete flooring inside the two new hangars had started to heave upward and form cracks throughout. The airport stopped payment while officials looked into why the materials used in the project had failed. Their research determined the flaws were a problem with the sub-base layer used in the building process. In 2010, Pipeline filed a suit against the Keystone Airpark Authority for non-payment. Airpark officials answered back with a counter-suit, claiming breach of contract against Pipeline had resulted in the brand new and now-cracked taxiways and concrete floors surrounding their clients’ stored planes, as well as seeking payment from The Hanover Insurance Company who had taken out a performance bond on Pipeline’s fulfillment of the contract with the airport. About seven years after the suits were filed, they went to court for a seven-day trial in October of last year in Clay County’s Fourth Judicial Court with Circuit Judge Don Lester hearing the case “As is usual in construction disputes, there can be no question that a failure occurred,” Lester wrote in his judgment. “The core matter to be resolved by the court is why the failure occurred.” In his report, Lester starts by outlining Pipeline’s responsibility under the contract, which boils down to two things: the company is to provide all of its own work and materials, and guarantee that work and those materials after the project’s completion. Pipeline is also required to get approval of materials from the project’s engineer. It was discovered that Pipeline had used a material known as EZBase underneath the asphalt and buildings in the airport project. EZBase, though allowed at the time, has since been banned in Clay County after a 2013 vote from the Board of County Commissioners. The material is a byproduct of burning coal that was marketed and delivered in the area by the Jacksonville Electric Authority. The BCC vote came following environmental concerns and overall unpredictability of the material as well as a push to ban it outright in the state of Georgia. Soil samples from the site showed that EZBase was not necessary for this project as the soil maintained the necessary properties for use as a sub-base natively with no additives. Judge Lester wrote that the use of a sub-base material when none was necessary was a breach of Pipeline’s duty to material selection under the contract, furthering his point in that they breached the contract again by failing to get the EZBase material inspected or approved by the engineer before placing it at the site. Read More … http://www.claytodayonline.com/stories/decade-old-trouble-comes-to-an-end-for-keystone-airpark,11449

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JDG Associates Seeks President for Surety & Fidelity Association of America

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May 15, 2018 – Rockville, MD-based search firm JDG Associates has been selected to find the next president of the Surety & Fidelity Association of America (SFAA). Lynn M. Schubert, the group’s current president, announced in December that she would be retiring at the end of this year. Paul Belford, principal at the recruitment firm, is spearheading the search. Ms. Schubert, who has led Washington, D.C.-based SFAA for 22 years, is assisting the organization’s search committee in finding her successor. Among her accomplishments, she was the first woman to head a national insurance trade association. The next president, who will oversee a $5.5 million annual budget and a full-time staff of 16, will be charged with providing vision, direction and leadership in promoting and preserving the use of surety and fidelity bonds in the public and private markets, said JDG Associates. The president provides the board of directors with information and guides the association in taking policy positions, and is responsible for advocacy of those positions. Broad Responsibility The president role includes responsibility for all aspects of SFAA’s work, including its member services as well as external activity, said the search firm. The leader manages the financial viability of the association, balancing services against current market conditions, and oversees and provides guidance to the board on all management issues, including staffing and benefits. The successful candidate will lead a highly regarded, financially sound association whose member company products protect the public interest in infrastructure and related projects nationally, said JDG Associates. The individual will work with highly-engaged senior-most executives of national and local companies who rely on the quality of its statistical resources and advisory services in the management of their companies. Ms. Schubert, the search firm said, is leaving her successor with a solid platform and position to promote and advance the benefits of surety and fidelity products. The next president will be expected to provide the leadership, management and motivational spirit needed to continue that success. SFAA’s next leader will also be expected to provide guidance to the board on all association-related issues as well as implement its policies and programs. The individual will act as the industry leader in promoting and protecting surety and fidelity bonds, strengthening policy maker and industry leader awareness of their benefits and utility, to include testifying before Congress and other bodies, as appropriate, said the search firm. A Range of Duties Other responsibilities will include: positioning SFAA as the industry expert for regulators, legislators and public entities on all matters related to surety and fidelity bonds; developing and supporting SFAA staff capabilities in all substantive, statistical, actuarial and legal matters related to surety and fidelity bonds, managing all officers and direct reports to ensure an effective, efficient and positive working environment throughout SFAA; serving as a trustee for the Surety Foundation, overseeing its activities and being a resource to it; and managing all fiscal matters including investment policies, reserve policies, and SFAA’s budgets, benefits, retirement plans, assessments and non-dues revenue generation, among other duties Candidates must at least have a bachelor’s degree, although a law degree is preferred. They should also have experience in insurance and finance fields; knowledge of the surety and fidelity field is highly desirable. Prospects must have leadership abilities, including experience in working with CEO-level executives of national firms, said JDG Associates. They must also have excellent oral and written communication skills, with a successful track record in representing an organization before policy makers and with industry leaders on legislative and regulatory matters SFAA would further like prospects to have had success in expanding an organization’s market reach, such as increasing private-sector use of surety bonding. Demonstrated success in working with a board of directors or similar body is highly desirable. Excellent relationship development skills, a collaborative mindset as well as success in consensus development are required. Candidates should also show strengths in strategic thinking and direction-setting as well as attention to detail. The job also calls for an understanding of the role and dynamics of a fully functioning and highly effective trade association. SFAA, founded in 1908, is licensed as a rating or advisory organization in all states and it has been designated by state insurance departments as a statistical agent for the reporting of fidelity and surety experience. SFAA serves as a trade association of more than 400 insurance companies that write the vast majority of surety and fidelity bonds in the U.S. Veteran Recruiters JDG Associates has been providing executive recruitment services to Fortune 1000 corporations, associations and non-profits, federal, state and local governments, research & consulting firms, and defense contractors since 1973. Mr. Belford has completed nearly 300 association searches during his career, mostly for CEO roles. A professional search consultant since 1990, he joined JDG Associates in 1993. His clients have ranged from regional and state groups with staffs of 10 or fewer to national organizations with budgets up to $75 million. He has worked with trade associations and professional societies from a wide range of service areas, including heavy industry, information technology, finance, healthcare, engineering, government relations, communications, finance and administration. https://huntscanlon.com/jdg-associates-seeks-president-for-surety-fidelity-association-of-america/

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legislation

S.C. governor signs insurer cyber security into law

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South Carolina became the first state to have a cyber security law requiring insurers to establish a “strong and aggressive” program to protect companies and their consumers from a data breach, with Gov. Henry McMaster’s signing of legislation this week, according to the state insurance department. “South Carolina is now the first in the nation to pass a comprehensive data security insurance law. This sets South Carolina apart and shows we are dedicated to keeping insurance information safe,” said South Carolina Insurance Director Raymond G. Farmer in the statement issued by the department. The statement said Gov. McMaster signed the South Carolina Department of Insurance Data Security Bill into law Tuesday. Mr. Farmer chaired the National Association of Insurance Commissioners’ Cybersecurity (EX) Working Group that drafted the law. The department said the law creates rules for insurers, agents and other licensed entities covering data security, investigation and notification of breach, including maintaining an information security program based on ongoing risk assessment; overseeing third-party service providers; investigating data breaches and notifying regulators of a cyber security event. http://www.businessinsurance.com/article/20180511/NEWS06/912321232/South-Carolina-governor-signs-insurer-cyber-security-law

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American Family Insurance and The Main Street America Group pursue merger

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MADISON, Wis. & JACKSONVILLE, Fla.–(BUSINESS WIRE)–May 4, 2018–Madison, Wisconsin-based American Family Insurance group and Florida-based The Main Street America Group will pursue a merger, the companies announced today. Approved by the companies’ boards of directors, the merger will improve diversity of risk, promote growth through geographic expansion and provide agents and policyholders broader product offerings. Both American Family Insurance and Main Street America are financially strong mutual holding companies, and the merger does not involve capital outlay by either. Both also have national distribution capabilities, but each with a regional emphasis. The merger, expected to close by year-end, will require approval by mutual policyholder-members of both companies and state insurance regulators. “This merger will give policyholders – particularly small business owners – more insurance products to choose from and more ways to buy them,” said Jack Salzwedel, chairman and CEO of the American Family Insurance group. “Given our focus on policyholders and agents, that’s a win.” “Both companies are able to immediately take advantage of our unique marketplace positions, as well as the ability to bring new value to each of our agency distribution systems,” said Tom Van Berkel, Main Street America’s chairman, president and CEO. “Our ability to sell new products through our independent agent-customers will help us and our agents profitably grow, while simultaneously bringing American Family enterprise products to a different policyholder base.” Policyholder equity combined The combined equity of the merged entities is expected to be more than $9 billion. Upon completion of the merger, Main Street America will operate as a stand-alone brand within American Family Insurance group, similar to The General and Homesite, acquired in 2012 and 2013, respectively. Main Street America will retain its affiliation and strong support of Trusted Choice ®, the global branding program of the Independent Insurance Agents & Brokers of America. In 2017, the American Family group’s written premium was $8.8 billion. The company sells American Family-brand products, including auto, homeowners, life, business and farm/ranch insurance, primarily through exclusive agents in 19 states. American Family affiliates, The General, Homesite and AssureStart, also provide options nationally for consumers who want to buy and manage insurance over the internet or by phone. Main Street America wrote more than $1 billion in premium last year. The company sells commercial and personal insurance as well as surety bonds, all through independent agents. Main Street America has an “A” (Excellent) rating with a stable outlook for financial strength from A.M. Best, the same as American Family. American Family became a mutual holding company in 2017, making mergers like this possible. The American Family Insurance group ended 2017 with approximately 11,300 full-time equivalent employees and Main Street America has approximately 900. At this time, no major employee or operational changes are expected as a result of the merger. Read More … https://www.apnews.com/3f219bf6e4c34c1d91dd5f20e27ab2f9

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Reinsurer Must Assume Payments of Workers’ Compensation Benefits, Mass. Court Says

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ACE American Insurance Co., rather than the state workers’ compensation trust fund, is required to pay benefits to an injured worker pursuant to a reinsurance policy that covered a self-insurer’s surety bond, a Massachusetts appeals court has held. In a May 2 opinion, the Massachusetts Court of Appeals affirmed that G. L. c. 152, § 25A(2)(c), of the Workers’ Compensation Act requires ACE as a reinsurer to pay benefits in the event of exhaustion of a self-insurer’s surety bond. Read More … https://harrismartin.com/article/23444/reinsurer-must-assume-payments-of-workers-compensation-benefits-mass-court-says/

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