Seattle Washington Building Expert Directory

Nevada’s Changing Liability Insurance Landscape—State Insurance Regulator Issues Emergency Regulation and Guidance Addressing Controversial “Defense-Within-Limits” Legislation

August 28, 2023 — Geoffrey B. Fehling & Andrew S. Koelz - Hunton Insurance Recovery Blog
We recently posted about Nevada becoming the first state to prohibit defense-within-limits provisions in liability insurance policies. Defense-within-limits provisions—resulting in what is called “eroding” or “wasting” policies—reduce the policy’s applicable limit of insurance by amounts the insurer pays to defend the policyholder against a claim or suit. In response to uncertainty and industry concern about the potential effects the new law may have on the state’s insurance marketplace, Nevada’s Division of Insurance issued an Emergency Regulation and Guidance to Insurers on the new law to minimize disruption to the marketplace. After noting that the new law “has the potential to eliminate or greatly reduce the availability of certain policies of liability insurance and significantly increase their costs, which will affect all types of Nevada businesses, non-profit entities, and state and local governments,” Nevada’s Division of Insurance addressed three issues relating to the new law in the Emergency Regulation:

The meaning of the term “policy of liability insurance,” as used in the new law.
The insurers to which the new law does not apply.
How defense coverage is required to be made available.

Reprinted courtesy of Geoffrey B. Fehling, Hunton Andrews Kurth and Andrew S. Koelz, Hunton Andrews Kurth Mr. Fehling may be contacted at gfehling@HuntonAK.com Mr. Koelz may be contacted at akoelz@HuntonAK.com Read the court decision
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Colorado’s Abbreviated Legislative Session Offers Builders a Reprieve

October 26, 2020 — David M. McLain – Colorado Construction Litigation
Would you believe me if I told you that this year could have been worse for builders? Had COVID-19 not hit, the Colorado Legislature may have passed bills that would have had a severely negative impact on the home building industry. In response to the COVID-19 pandemic, the Legislature temporarily adjourned in mid-March, 67 days into the 120-day legislative session. After a two-month recess, the Legislature returned for approximately one month to pass critical bills including the state budget, the school finance act and what to do with the money from the federal CARES Act. Of the bills on the calendar when the Legislature temporarily adjourned, legislators focused on those that were “fast, free, and friendly,” and let the others fall by the wayside. Bills that died included SB 20-138, which would have extended Colorado’s statute of repose for construction defect claims from six plus two years to 10 plus two years. The bill also contained a number of accrual and tolling provisions, which would have made it harder for builders to convince tribunals that claims were untimely. This bill died on the Senate floor, for lack of support. We will see whether plaintiffs’ attorneys will revive this effort next year. SB 20-093, while not an outright ban on arbitration or a legislative overturning of the Vallagio decision, would have made it harder to administer and more difficult to get cases into arbitration. The bill died under the “fast, free, and friendly” test, i.e., it faced too much opposition. I expect to see this bill again next year, in some form. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

OSHA Releases COVID-19 Guidance

June 15, 2020 — L. Stephen Bowers & Joshua Tumen - White and Williams LLP
The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance. The COVID-19 outbreak has increased demand for N95 filtering face piece respirators (N95 FFRs), limiting availability for workers in healthcare and emergency response. On April 3, 2020, OSHA issued interim guidance for employers to combat the supply shortages of N95 FFRs and to comply with the respiratory protection standard (29 CFR § 1910.134). This guidance will remain in effect until further notice and applies in all industries. Employers must continue to manage their respiratory protection programs and be mindful of N95 FFR shortages. Specifically, employers should identify and evaluate respiratory hazards in the workplace, and develop and implement written respiratory protection programs. Businesses should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 FFRs. Some examples provided in the guidance include using portable local exhaust systems or moving operations outdoors. Employers may also consider temporarily suspending non-essential operations, to the extent such operations are not already suspended due to state mandates. Reprinted courtesy of L. Stephen Bowers, White and Williams LLP and Joshua Tumen, White and Williams LLP Mr. Bowers may be contacted at bowerss@whiteandwilliams.com Mr. Tumen may be contacted at tumenj@whiteandwilliams.com Read the court decision
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Manhattan to Add Most Office Space Since ’90 Over 3 Years

June 18, 2014 — Jonathan LaMantia – Bloomberg
Manhattan is poised to add the most office space in any three-year period since 1990 as projects including buildings at Hudson Yards and the World Trade Center site are completed, the New York Building Congress said. The borough, home to the largest U.S. office market, probably will add 9 million square feet (836,000 square meters) of office space at nine development sites from last year through 2015, according to the organization, which promotes construction in the New York City area. An additional 10 million square feet at six buildings is likely to become available from 2016 through 2018, the group said in a statement today. “It’s a vote of confidence in the market, which we think is long overdue,” Richard T. Anderson, president of the New York Building Congress, said in a telephone interview. “As a global center of finance and office-related functions, the city needs to regenerate its office space.” Read the court decision
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Reprinted courtesy of Jonathan LaMantia, Bloomberg
Mr. LaMantia may be contacted at jlamantia1@bloomberg.net

LA Lakers Partially Survive Motion to Dismiss COVID-19 Claims

June 13, 2022 — Tred R. Eyerly - Insurance Law Hawaii
While the appellate court affirmed dismissal of a majority of the claims submitted by the Los Angeles Lakers for closure of the Staples Center and other properties due to COVID-19, a portion of their claims survived. L.A. Lakers v. Fed Ins. Co., 2022 U.S. Dist. LEXIS 31503 (C.D. Calif. March 17, 2022). Government orders closed the Staples Center in March 2020. The Lakers alleged they lost tens of millions of dollars in revenue. They further alleged that the presence of coronavirus particles on fixtures and building systems caused physical alterations to the covered properties. The Lakers had to upgrade their properties to include new air filters, touchless light switches, toilets and sinks; sleeves or coatings for high-touch surfaces; and plexiglass dividers. The Lakers also alleged that five Metro stations within a mile of the Staples Center, that was used to get to games, were closed by civil authorities due to the presence of COVID-19. The Lakers submitted a claim for property damage and business interruption to Federal. The claim was denied and the Lakers filed suit. In February 2021, the court granted Federal's motion to dismiss without prejudice, after concluding that the Lakers' allegations of direct physical loss or damage were mere legal conclusions and not sufficient to state a claim. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Corporate Formalities: A Necessary Part of Business

February 18, 2020 — Hannah Kreuser - Porter Law Group
Many benefits exist in choosing to create a corporation or limited liability company (“LLC”) as your business entity. However, what attracts most people to these entities is the protection they afford the business owner(s) against personal liability for the business’ obligations, debts, and other liabilities. Whatever reason prompts your decision to form a corporation or LLC, if you are like many smaller businesses, once the formation process is over its back to business as usual. However, in order to keep the protection against personal liability associated with a corporation or LLC, the business must engage in, what are known as corporate formalities. Corporate formalities are formal actions that must be taken by a corporation or LLC in order to maintain the benefits associated with that business entity. These corporate formalities may be required under California law, by the bylaws, and/or by the operating agreement of your business. When your business is formed as a corporation, many of the corporate formalities exist as part of California’s Corporations Code (“CCC”). These formalities include: (1) holding annual meetings (CCC § 600); (2) regularly electing directors (CCC § 301); (3) keeping meeting minutes (CCC § 1500); and (4) maintaining accurate corporate records (CCC § 1500). While these are only a few of the corporate formalities existing for corporations in the State of California, these formalities are often overlooked or put off by smaller businesses because they are either unknown to the business or are intended to be complied with later, as the actual running of the business takes priority. Read the court decision
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Reprinted courtesy of Hannah Kreuser, Porter Law Group
Ms. Kreuser may be contacted at hkreuser@porterlaw.com

The Clock is Ticking: Construction Delays and Liquidated Damages

September 18, 2023 — Tiffany Harrod - ConsensusDocs
With the on-going shortage of construction workers in the industry and other factors ranging from weather to procurement problems, the threat of project delay is real. When a contract contains a liquidated damages clause for assessing project delays, real financial consequences for contractors can result. Courts have long allowed parties to apportion contractual risks as they deem appropriate especially in the commercial context where the parties are considered to be sophisticated even if their bargaining power is not equal. Liquidated damage provisions such as those for delay that are found in construction contracts are not unusual but they must be crafted in such a way as to be enforceable and not violate public policy. A liquidated damage clause in a construction contract is a customary way for the parties to deal with the possibility of delay in the completion of a project and the potential losses flowing from the delay.[1] In their most basic form, the party in breach, which is more often than not the contractor, is obligated to pay the non-breaching party, usually the project owner, some fixed sum of money for the period that exceeds the designated completion date that was agreed upon in advance and memorialized in the contract. (It is after all no secret that these provisions are primarily for the owner’s benefit.) The non-breaching party is then compensated for losses associated with the delay without the time and expense of having to prove in either a civil suit or an arbitration proceeding what the actual damages are. This option is particularly attractive to project owners because the liquidated damages assessment can simply be withheld from payments owed to the contractor once the agreed-upon completion date has been passed. Read the court decision
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Reprinted courtesy of Tiffany Harrod, Peckar & Abramson
Ms. Harrod may be contacted at tharrod@pecklaw.com

PSA: Performing Construction Work in Virginia Requires a Contractor’s License

March 04, 2019 — Christopher G. Hill - Construction Law Musings
As a Virginia construction attorney, I often get calls for assistance in dealing with payment disputes. Frequently, these calls come from out of state contractors and subcontractors that have performed work in Virginia. One of the first questions that I ask is whether these contractors and subcontractors hold a contractor license from the Commonwealth of Virginia. While most do, some do not, likely because they are unaware of the requirement in Virginia that all contractors be licensed when performing work in the Commonwealth. While I haven’t done an exhaustive survey of the statutes and regulations of every state of the union on this point, the confused silence leads me to believe that such is not a requirement in every state. The most common reaction after “I had no idea I needed one” is that the general contractor holds a license so they did not think they needed to hold one. As I stated above, this is incorrect. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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