Three Firm Members Are Top 100 Super Lawyers & Ten Are Recognized As Super Lawyers Or Rising Stars In 2018
July 28, 2018 —
Scott MacDonald - Ahlers Cressman & Sleight PLLCWith the Fourth of July festivities still ringing in our collective ears, we are having our own celebration at Ahlers Cressman & Sleight PLLC. We avoid using this blog as a platform for self-promotion as we want to keep relevant construction industry news and notes hitting your inboxes. Longtime readers will know, however, that we make an exception to recognize the Super Lawyers of the firm, who are each humbled to receive this peer-voted award. We also share this news in recognition of our clients and industry-partners who have put their trust and confidence in us. Without these relationships, these industry acknowledgments would have no significance.
Super Lawyers is a wholly independent company that identifies outstanding lawyers in the profession. It selects attorneys using a patented multiphase selection process based on legal excellence, industry involvement, and civic leadership. Super Lawyers’ initial pool of candidates is based on peer nominations and evaluations from outside the firm, which is then combined with Super Lawyers’ own third-party research. Only five percent of all lawyers in Washington State are selected for the honor of Super Lawyers and no more than 2.5 percent are selected for the honor of Super Lawyers Rising Stars. What makes this award meaningful is it is based upon evaluation of individual merit—as opposed to a “pay-to-win” award.
John P. Ahlers, one of the firm’s founding partners, is again recognized as one of the 10-Best Lawyers in the State of Washington across all practicing industries.
Founding partner Paul R. Cressman, Jr. and partner Brett M. Hill are also recognized as two of the 100-Best Lawyers across all practicing industries in Washington State.
In addition, three other firm members are also recognized as Super Lawyers: Founding partner Scott R. Sleight, Bruce A. Cohen (of counsel), and Lawrence S. Glosser (partner). In addition, Ryan W. Sternoff (partner), Lindsay (Taft) Watkins (partner), Ceslie A. Blass (associate), and Scott D. MacDonald (associate) were selected as Super Lawyers Rising Stars. Well over half of the firm’s lawyers received Super Lawyers distinction.
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Scott MacDonald, Ahlers Cressman & Sleight PLLCMr. MacDonald may be contacted at
scott.macdonald@acslawyers.com
A Court-Side Seat – Case Law Update (February 2022)
March 06, 2022 —
Anthony B. Cavender - Gravel2GavelIt is already early in 2022, but several important environmental cases have already been decided by the federal district and federal appellate courts.
THE COURTS OF APPEAL
The U.S. Court of Appeals for the Fourth Circuit
West Virginia State University Board of Governors v. The Dow Chemical Company, et al.
On January 10, 2022, the court decided this case, in which Dow and the other defendants attempted to remove a state groundwater contamination lawsuit to federal court, citing the federal officer removal statute and the presence of a significant federal question. Both the federal district court and the appellate court rejected these arguments and remanded the lawsuit to the state court. For many years, Dow and other parties had been engaged in a RCRA hazardous waste cleanup at an industrial site located in Institute, West Virginia. RCRA permits and corrective action authorizations were issued or supervised by EPA. The plaintiffs complained that the groundwater cleanup, insofar as it affected their property, was deficient, which compelled them to supplement the ongoing federal cleanup with a lawsuit based on West Virginia causes of action and unique to their property. After a careful review of the record, the Fourth Circuit held that the defendants were not acting under the “subjection, guidance or control” of the EPA, and therefore the federal officer removal statute did not apply. Moreover, there was no federal question to resolve as the separate state lawsuit did not challenge a CERCLA cleanup nor did it arise from the RCRA remedial measures that had been taken.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Properly Trigger the Performance Bond
January 04, 2018 —
David Adelstein - Florida Construction Legal UpdatesOriginally Published by CDJ on January 5, 2017
A performance bond is a valuable tool designed to guarantee the performance of the principal of the contract made part of the bond. But, it is only a valuable tool if the obligee (entity the bond is designed to benefit) understands that it needs to properly trigger the performance bond if it is looking to the bond (surety) to remedy and pay for a contractual default. If the performance bond is not properly triggered and a suit is brought upon the bond then the obligee could be the one materially breaching the terms of the bond. This means the obligee has no recourse under the performance bond. This is a huge downside when the obligee wanted the security of the performance bond, and reimbursed the bond principal for the premium of the bond, in order to address and remediate a default under the underlying contract.
A recent example of this downside can be found in the Southern District of Florida’s decision in Arch Ins. Co. v. John Moriarty & Associates of Florida, Inc., 2016 WL 7324144 (S.D.Fla. 2016). Here, a general contractor sued a subcontractor’s performance bond surety for an approximate $1M cost overrun associated with the performance of the subcontractor’s subcontract (the contract made part of the subcontractor’s performance bond). The surety moved for summary judgment arguing that the general contractor failed to property trigger the performance bond and, therefore, materially breached the bond. The trial court granted the summary judgment in favor of the performance bond surety. Why?
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Second Circuit Finds Potential Ambiguity in Competing “Anti-Concurrent Cause” Provisions in Hurricane Sandy Property Loss
November 28, 2018 —
CDJ STAFFThe Second Circuit recently held that competing “anti-concurrent cause” provisions in a commercial property policy present a potential ambiguity that could result in favor of coverage for losses sustained by Madelaine Chocolate after storm surge from Hurricane Sandy combined to cause substantial damage to Madelaine’s property and a resulting loss of income.
Madelaine was insured under an all-risk insurance policy issued by Chubb subsidiary Great Northern Insurance Company. By endorsement, Madelaine’s policy added “windstorm” as a covered peril and defined “windstorm” as “wind… regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributed in any sequence to, the loss or damage.” The policy also included a common flood exclusion that removed coverage for loss or damage caused by or resulting from waves, tidal water, or tidal waves, or the rising, overflowing, or breaking of any natural harbors, oceans, or any other body of water, whether driven by wind or not. Like the windstorm endorsement, the flood exclusion contained concurrency language that broadened the exclusion to any loss to which flood contributed, regardless of any other cause or event that directly or indirectly contributed to the loss.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Tae Andrews, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Andrews may be contacted at tandrews@HuntonAK.com
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Product Liability Alert: Evidence of Apportionment of Fault Admissible in Strict Products Liability Action
March 26, 2014 —
R. Bryan Martin and Kristian B. Moriarty - Haight Brown & Bonesteel LLPIn Romine v. Johnson Controls, Inc. (No. B239761, filed March 17, 2014), the California Court of Appeal for the Second District held that a trial court must permit a defendant, in a products liability action, to present evidence of apportionment of fault among settling and non-settling entities. The case involved an automobile collision in which the plaintiff was struck from behind, causing the driver’s seat to recline and propel plaintiff into the back seat where she struck her head. Plaintiff was left quadriplegic as a result.
Plaintiff brought suit against the driver who caused the accident, the Nissan entities who manufactured the car plaintiff was driving, Johnson Controls, Inc. (“Johnson”), Ikeda Engineering Corporation (“Ikeda”), Vintec Co. (“Vintec”), and Autoliv ASP, Inc., who designed and manufactured the driver’s seat of the vehicle plaintiff was driving, and against Faurecia Automotive Seating, Inc. who manufactured the recliner mechanism of plaintiff’s vehicle’s front seat. Ikeda participated in the design of the driver’s seat and Vintec manufactured the driver’s seat. Johnson manufactured the seat belt for the driver’s seat of plaintiff’s vehicle in accordance with Nissan’s design. Prior to trial, plaintiff settled with the defendant driver, the Nissan defendants, the Autoliv defendants, and Faurecia Automotive Seating, Inc. Plaintiff elected to proceed to trial solely on a cause of action for strict products liability against Ikeda and Vintec. Pursuant to a stipulation, Johnson agreed it would be legally responsible for damages awarded to plaintiff at trial based upon the actions of Vintec or Ikeda.
At trial, the court precluded Vintec and Ikeda from offering evidence that: (1) plaintiff would not have been injured if her vehicle’s seat belt was designed in a different manner by Nissan; (2) Nissan chose the manufacturer of the recliner mechanism and required defendants to use that manufacturer and that part in the seat; and (3) The other defendants had already reached settlements with plaintiff.
Reprinted courtesy of
R. Bryan Martin, Haight Brown & Bonesteel LLP and
Kristian B. Moriarty, Haight Brown & Bonesteel LLP
Mr. Martin may be contacted at bmartin@hbblaw.com; Ms. Moriarty may be contacted at kmoriarty@hbblaw.com
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Property Owner’s Defense Goes Up in Smoke in Careless Smoking Case
September 23, 2019 —
Michael J. Ciamaichelo - The Subrogation StrategistProperty owners owe a duty of reasonable care to avoid causing harm to neighboring properties. When a property owner knows or should know about a condition that poses a risk of danger to neighboring properties, the property owner must exercise reasonable care to make the condition safe. The Court of Special Appeals of Maryland recently held that, where hundreds of discarded cigarette butts had accumulated in a bed of mulch over an extended period of time prior to the fire at issue, the owner of the property with the mulch beds owed a duty of care to its neighbors to prevent a foreseeable fire.
In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 2019 Md. App. LEXIS 430 (May 30, 2019), a fire originated in a strip of mulch at property owned by the Steamfitters Local Union No. 602 (Union) and caused damage to neighboring properties. The fire occurred when an unknown person discarded a cigarette butt into the mulch. Following the fire, investigators found “hundreds, if not thousands of cigarettes” in the mulch where the fire originated. A representative for the Union acknowledged that there were more butts in the mulch “than there should have been” and that, “[i]n the right situation,” a carelessly discarded cigarette could cause a fire. The Union, however, had no rules or signs to prohibit or regulate smoking at the property, where apprentices would often gather prior to class.
The insurance companies for the damaged neighbors filed subrogation actions alleging that the Union, as the property owner, failed to use reasonable care to prevent a foreseeable fire. A jury found in favor of the subrogating insurers and against the Union.
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Michael J. Ciamaichelo, White and Williams LLPMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
North Carolina Exclusion j(6) “That Particular Part”
February 10, 2012 —
CDCoverage.comIn Alliance Mutual Insurance Co. v. Dove, 714 S.E.2d 782 (N.C. Ct. App. 2011), claimant Murphy-Brown hired insured Dove to repair a broken elevator belt in a grain elevator in Murphy-Brown’s feed mill. The elevator was inside a metal duct and, to access the broken belt, Dove had to cut out a section of the duct. After replacing the belt, Dove welded the metal section back to the duct. Immediately after Dove completed the welding, dust inside the duct ignited, causing an explosion in the elevator, resulting in property damage to the elevator and other property. Murphy-Brown sued Dove for negligence seeking damages for the repair and replacement of the elevator, repair and replacement of the other property, increased grain handling costs during the repairs, and loss of use.
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Reprinted courtesy of CDCoverage.com
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Court Agrees to Stay Coverage Matter While Underlying State Action is Pending
October 29, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe federal district court granted the insured's motion to stay the coverage action while the construction defect case was pending in state court. Auto Owners Ins. Co. v. Essex Homes Southeast, Inc., 2014 U.S. Dist. LEXIS 133120 (D. S.C., Sept. 23, 2014).
The homeowners sued Essex Homes in state court for construction defects in a home built and sold to them by Essex Homes. The suit sought damages for property damage based on negligence, breach of implied warranty, and breach of express warranties arising out of the alleged construction defects. The complaint alleged that a water leak in the house caused water damage and resulted in mold growth that was not discovered for several years.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
