SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Excess Carrier's Declaratory Judgment Action Stayed While Underlying Case Still Pending

June 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court determined the excess carrier's declaratory judgment action to establish it had no coverage obligations should be stayed while the underlying case was still pending. Scottsdale Ins. Co. v. Ortiz & Assocs., 2014 U.S. Dist. LEXIS 64286 (D. Ore. May 9, 2014). The subcontractor's employee was killed on the job site when struck by a dump truck owned by the general contractor, Inland Asphalt Co. Island was sued for wrongful death. Island was an additional insured under the subcontractor's primary policy and excess policy with Scottsdale. Inland put Scottsdale on notice of the underlying wrongful death lawsuit, but did not tender its defense to Scottsdale. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Eleven WSHB Attorneys Honored on List of 2016 Rising Stars

September 01, 2016 — Beverley BevenFlorez-CDJ STAFF
Wood Smith Henning & Berman LLP (WSHB) announced that eleven of their lawyers were recognized on the list of 2016 Rising Stars®:

• Raymond Babaian: Partner, Rancho Cucamonga
• Emil Macasinag: Senior Counsel, Los Angeles
• Amy Pennington: Partner, Los Angeles
• Christopher Perez: Senior Counsel, Rancho Cucamonga
• Keith Smith: Partner, Riverside
• Kevin Gillispie: Partner, Concord
• Alicia Kennon: Senior Counsel, Concord
• Eugene Zinovyev: Senior Associate, Concord
• Timothy Repass: Partner, Seattle and Portland
• Jodi Mullis: Senior Associate, Phoenix
• Vincent Beilman: Partner, Tampa and Miami
“We are pleased to have 11 of our best selected for this year’s lists,” Dan Berman, Firm Chairman and Founding Partner stated. “We value our selections to Rising Stars because the choices come from our peers. It is truly an honor and a validation of all of the great work we do at WSHB.” Read the court decision
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All Risk Policy Only Covers Repair to Portion of Dock That Sustains Damage

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii


A portion of a dock on Lack Michigan operated by the Ports of Indiana suffered visible damage. See Ports of Indiana v. Lexington Ins. Co., 2011 U.S. Dist. LEXIS 130979 (S.D. Ind. Nov. 14, 2011). Lexington Insurance Company insured the port. Lexington agreed that a portion of the dock was damaged and paid $1.2 million for repairs. A dispute arose, however, over whether additional sections of the dock were damaged and whether the damage was the result of more than one "occurrence."

An expert report opined that a significant drop creating record lows in the water level of Lake Michigan in 2007 caused damage to the dock. Lexington maintained that only 128 feet of the dock was damaged; other portions of the dock did not sustain "direct physical loss or damage."

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Charges in Kansas Water Park Death

March 28, 2018 — David Suggs - CDJ STAFF
Caleb Schwab, a 10-year old boy was killed by decapitation on a water slide at a Kansas City water park, Schlitterbahn in 2016. Thirteen other people had suffered injuries on the ride prior to Caleb’s death ranging in severity from broken toes to concussions. Schlitterbahn employees have since claimed that park officials covered up past occurrences of water slide injuries. Three people have been indicted in this case according to a CNN report by Marlena Baldacci, Sheena Jones and Hollie Silverman. Jeffrey Henry, the co-owner of the Schlitterbahn water park, Tyler Austin Miles, the park’s former director of operations and John Schooley. Charges include second-degree murder, involuntary manslaughter, aggravated battery and aggravated child endangerment. Caleb suffered a fatal injury when the raft that he and the two women who were riding with him became airborne and contacted the netting attached overhead. Investigators have found maintenance issues and ride design flaws that violate safety standards leading to lack of prevention of rafts becoming airborne during the ride. Caleb’s family will receive nearly $20 million in the settlement. Caleb’s father Scott, released a statement about placing full trust in the Attorney General Derek Schmidt who is presiding over the investigation and indictments. Read the court decision
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Insured's Claim for Cyber Coverage Rejected

December 29, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Having failed to adequately secure cyber coverage, the insured law firm's lawsuit was properly dismissed by the trial court on summary judgment. Johnson v. Smith Bros. Ins., LLC, 2020 Vt. Unpub. LEXIS 98 (Vt. Sept. 4, 2020). The law firm attended a CLE seminar presented by the Vermont Attorneys Title Insurance Corporation. Scott Garcia, an employee of Smith Brothers, an insurance agency, gave a presentation on professional liability insurance focusing on cybersecurity issues, including fraudulent scams. After the presentation, one of the law firms members spoke with Garcia and expressed an interest in securing a professional malpractice policy with cyber security coverage. Garcia said he would check the firm's current policy, but was confident he could provide better coverage. It was unclear whether the firm ever provided its current policy. A couple of weeks later, the firm submitted an online application for professional liability coverage through the Smith Brothers' website. The application neither referenced the conversation with Garcia nor specifically requested cybersecurity coverage. Smith Brothers then sent the policy covering a one-year period. The policy included coverage for up to $10,000 for losses resulting from a network or security breach in the performance of professional services. A year later, the firm renewed the same policy. 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

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Second Circuit Finds Potential Ambiguity in Competing “Anti-Concurrent Cause” Provisions in Hurricane Sandy Property Loss

November 28, 2018 — CDJ STAFF
The 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 Read the court decision
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How Does Your Construction Contract Treat Float

November 08, 2017 — David Adelstein - Florida Construction Legal Updates
Although there are different types of construction schedule float and more technical definitions, the definition that makes sense to me is that float is the amount of time a particular activity can be delayed without that activity delaying the project’s completion date (substantial completion date). In looking at a construction schedule, this determination is made from looking at the difference between the early start date for an activity and the late start date for that activity or the difference between the early finish date for that activity and the late finish date for that activity in your CPM schedule (which should be the same amount of time). This is often referred to as “total float” and is the float that I usually focus on since it may pertain to a delay to the substantial completion date of the project and can trigger either the assessment of liquidated damages and/or the contractor’s extended general conditions, whatever the case may be. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

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Arizona Supreme Court Holds a Credit Bid at a Trustee’s Sale Should Not be Credited to a Title Insurer Under a Standard Lender’s Title Policy To the Extent the Bid Exceeds the Collateral’s Fair Market Value

March 01, 2017 — Richard H. Herold - Snell & Wilmer Real Estate Litigation Blog
The Arizona Supreme Court recently addressed what impact, if any, a lender’s credit bid at an Arizona trustee’s sale has on an insurer’s liability under Sections 2, 7 and 9 of the standard’s lender’s title policy (“Policy”), holding in Equity Income Partners, LP v. Chicago Title Insurance Company, 241 Ariz. 334, 387 P.3d 1263 (February 7, 2017) as follows: 1. Section 2 of the Policy, entitled “Continuation of Insurance,” not Section 9, entitled “Reduction of Insurance; Reduction or Termination of Liability,” applies when a lender acquires property at a trustee sale by “either a full- or partial-credit bid” since Section 2 directly addresses the existence and amount of coverage in such circumstances. Id. at 1267. Read the court decision
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Reprinted courtesy of Richard H. Herold, Snell & Wilmer
Mr. Herold may be contacted at rherold@swlaw.com

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