Seattle Washington Building Expert Directory

Earth Movement Exclusion Precludes Coverage

July 20, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The Federal District Court, District of Hawaii, found the earth movement exclusion barred coverage for the contractor when a landslide damaged the property. North River Ins. Co. v. H.K. Constr. Corp., 2020 U.S. Dist. LEXIS 90110 (D. Haw. May 22, 2020). Bruce and Yulin Bingle sued HK for damage caused to the Bingle property. HK was hired as the contractor for the construction of a new residence and improvements on their property in Kaneohe. HK excavated near the boundary of the neighbors' and the Bingle's property in order to cut the existing slope to build a retaining wall. Due to the excavation work, the slope on the Bingle property failed and soil eroded away. At the time, the Bingles were selling their property. Due to the landslide, the buyer decided not to buy the property. The Department of Planning and Permitting issued a Notice of Violation for failure to obtain a grading permit. HK notified its carrier, North River. North River agreed to defend under a reservation of rights, but then filed suit against HK for a declaratory judgment. 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

Hawaii Supreme Court Finds Subcontractor Has No Duty to Defend Under Indemnity Provision

July 14, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii Supreme Court vacated the decision of the Intermediate Court of Appeals [see prior post here] and determined that a subcontractor did not have a duty to defend the developer upon tender under an indemnify provision in the parties' contract. Arthur v. State of Hawaii, 2016 Haw. LEXIS 155 (June 27, 2016). A simplified version of the detailed facts and procedural history follows. The case involved the wrongful death of Mona Arthur. Mona typically gardened on the hillside behind her home. She would cross a concrete drainage ditch and climb over a two-foo-high chain length fence to reach the hillside. Mona was found lying in a concrete ditch with severe head injuries, which ultimately led to her death. Her husband and estate sued for her wrongful death. Claims were asserted for negligence in failing to build a fence higher than two feet, which would have prevented Mona from having access to the garden. Defendants included the Department of Hawaiian Home Lands; Kamehameha Investment Corporation ("KIC"), the developer; Design Partners, Inc., the architect; Coastal Construction Company, the general contractor; and Sato and Associates, the civil engineer. The second amended complaint sought punitive damages against KIC. 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

General Partner Is Not Additional Insured For Construction Defect Claim

August 26, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that the project owner's general partner was not an additional insured entitled to a defense and indemnity against claims for construction defects. St. Paul Fire & Marine Ins. Co. v,. Cypress Fairway Condo. Ass'n, 2015 U.S. Dist. LEXIS 94012 (M.D. Fla. July 20, 2015). Construction of the Cypress Fairway Condominium project took place in 1999 and 2000. Cypress Fairway Ltd. ("Cypress") was the owner and Vineland Partners , LLC ("Vineland") was its general partner. The general contractor was Winter Park Construction Company ("WPC"). Water intrusion and property damage occurred, but it was unclear when or whether the damage was known. Cypress' expert indicated that the damage began shortly after the end of construction. In 2004, the complex was sold to Cypress Madison Ownership Company. In 2010, the Cypress Fairway Condominium Association sued Cypress and Vineland. Count V of the underlying complaint asserted there were construction defects that Cypress and Vineland were responsible for when they owned and managed the project. Count VI alleged that Cypress and Vineland negligently supplied information which the Association relied on for the purchase of the condominiums. 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

Appellate Court Lacks Jurisdiction Over Order Compelling Appraisal

January 16, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit recently held that the district court's order compelling appraisal and staying the proceedings pending appraisal was an interlocutory order that was not immediately appealable under 28 U.S.C. 1292 (a) (1). Positano Place at Naples Condominium Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 27961 (11th Cir. Oct. 20, 2023). Postiano Condominium Association suffered damage from Hurricane Irma. Pastiano notified its insurer, Empire, seven months later. Empire investigated the claim and inspected the property. Positano sent a written request for appraisal. Empire did not respond and Pastiano filed suit, alleging that the parties' dispute was not a coverage dispute but a dispute over the amount of the loss. Postiano moved to compel appraisal and to stay the proceedings pending completion of the appraisal. 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

Quick Note: Be Careful with Pay if Paid Clauses (Both Subcontractors and General Contractors)

June 17, 2015 — Christopher G. Hill – Construction Law Musings
Aside from waiver of lien rights (something that will be illegal in Virginia after July 1, 2015), the most troublesome contractual impediment to payment for a subcontractor or supplier on a project often is the “pay if paid” clause. As a general rule, in Virginia, these clauses where drafted in the proper fashion, are enforceable. As I have said many times, in Virginia freedom of contract almost always wins out. While this is the case, I emphasize that such clauses must be very explicit and specific. Furthermore, and in something that should be obvious, these clauses are generally limited by the Courts of Virginia to only be enforceable and to only forgive the need for payment if the upstream contractor on the construction job has not been paid for the work that the sub claiming non payment has done. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Testing Your Nail Knowledge

September 03, 2014 — Beverley BevenFlorez-CDJ STAFF
Tools of the Trade provided “ten things you probably don’t know about nails.” For instance, “[I]n 2013 the U.S consumed 629,716 tons of steel nails.” Frane, the author of the article, said that if that “many nails were melted down and cast into a block of solid steel, the block would cover the area of a football field to a depth of 45’.” Another fact is that only 21% of nails used in the U.S. were made in the U.S. Furthermore, the leading U.S. supplier of nails is Mid Continent Nail Corporation, and they are located in Poplar, Missouri. Read the court decision
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Contractors Pay Heed: The Federal Circuit Clarifies Two Important Issues For Bid Protestors

September 13, 2021 — Andrew Balland - ConsensusDocs
The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently decided two cases that are relevant to many disappointed offerors considering a bid protest. One decision rendered in March 2021 confirmed the authority of the United States Court of Federal Claims (COFC) to hear a protest based on an agency’s breach of an implied-in-fact contract. A second decision issued in February 2021 reversed a COFC decision from last year regarding the timeliness requirements to obtain a CICA stay and their interplay with Department of Defense (DoD) enhanced debriefing regulations. Federal Circuit Confirms The Court Of Federal Claims’ Jurisdiction Over Procurement-Related Implied Contract Claims When a contractor’s bid protest is denied by the Government Accountability Office (GAO), the unsuccessful protestor may challenge the GAO’s decision as arbitrary and capricious in an action before the COFC. While 28 U.S.C. § 1491(b)(1) authorizes the COFC to hear such procurement-related challenges, § 1491(a) also permits the court to adjudicate claims against the United States based on any express or implied contracts. Read the court decision
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Reprinted courtesy of Andrew Balland, Watt, Tieder, Hoffar & Fitzgerald, LLP

Architect Responds to Defect Lawsuit over Defects at Texas Courthouse

October 08, 2013 — CDJ STAFF
Lee County, Texas has sued the architect responsible for designing the drainage system at its historic courthouse. The suit seeks $1.7 million in damages to pay for replacing the defective system and repairing the building from damage sustained due to soil saturation. Dale A. Rabe responds that the county commissioners were more concerned with “beautifying the building” than on needed foundation repairs. Further, Mr. Rabe notes that “Lee County contracted directly with a civil engineering firm to design a drainage system.” But according to Mr. Rabe what they used instead was “a cheaper pump-based design to save money.” And even there, “Lee County failed to maintain the drainage system properly. Read the court decision
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