Seattle Washington Building Expert Directory

D&O Insurer Must Cover Mortgage Broker’s $15 Million Settlement of Alleged False Claims Act Violations

November 15, 2022 — Michael S. Levine, Geoffrey B. Fehling & Matthew J. Revis - Hunton Insurance Recovery Blog
A Delaware court recently granted summary judgment to a mortgage broker targeted in a federal government investigation for alleged False Claims Act violations, holding that the company’s directors and officers liability (“D&O”) insurer was required to indemnify more than $15 million in settlement costs with the U.S. Department of Justice. Guaranteed Rate, Inc. v. ACE American Insurance Company, No. N20C-04-268 MMJ CCLD (Del. Super. Ct. Sept. 6, 2022). We previously reported on the policyholder’s earlier victory in this case, in which the court held that a Civil Investigative Demand (“CID”) from federal authorities triggered the insurer’s obligation to pay defense costs under the D&O policy. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Matthew J. Revis, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Mr. Revis may be contacted at mrevis@HuntonAK.com Read the court decision
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Arizona Supreme Court Confirms Eight-Year Limit on Construction Defect Lawsuits

July 18, 2011 — CDJ STAFF

Acting on the case of Albano v. Shea Homes Ltd. Partnership, the Arizona Supreme Court has ruled that Arizona’s eight-year statute of repose applies. The case was referred to the court by the Ninth Circuit Court of Appeals which had asked for a clarification of Arizona law. The case focused on three questions:

1. Does the filing of a motion for class certification in an Arizona court toll the statute of limitations for individuals, who are included within the class, to file individual causes of action involving the same defendants and the same subject matter?2. If so, does this class-action tolling doctrine apply to statutes of repose, and more specifically, to the statute of repose for construction defects set forth in Arizona Revised Statutes ("A.R.S.") § 12-552?3. If the doctrine applies to statutes of repose, and specifically § 12-552, may a court weigh the equities of the case in determining whether, and to what extent, an action is tolled?

The litigation at hand has a lengthy history, starting with a case referred to as “Hoffman” in 2003. The Albano plaintiffs were not able to join in Hoffman, and they filed their own lawsuit in 2006. An additional lawsuit was filed by the Albano plaintiffs in 2007. The courts decided that the Albano plaintiffs’ lawsuit was untimely.

The Arizona Supreme Court concluded that the statute of repose was the appropriate standard for this case. They noted that “the eight-year statute of repose period began to run on November 6, 1997, the date of the Town of Gilbert’s final inspection. Albano II was filed on November 5, 2007.”

The court found that the plaintiffs had waited too long for start their suit. As a result, they found it unnecessary to answer the first or third questions. Justice A. John Pelander of the Arizona Supreme Court wrote the opinion, dated June 30, 2011.

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MSJ Granted Equates to a Huge Victory for BWB&O & City of Murrieta Fire Department!

May 30, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
BWB&O Partner Tyler D. Offenhauser and Senior Associate Kevin B. Wheeler prevailed on their Motion for Summary Judgment (“MSJ”) on behalf of a public entity, the City of Murrieta Fire Department today! As a matter of background, authorities were first called to a residence in Murrieta after a report of a gas line rupture. Firefighters and Southern California Gas Company responded to the call. As a crew from SoCalGas was trying to shut off the gas an explosion happened, leveling the home and killing 31-year-old SoCalGas employee Wade Kilpatrick. 30 surrounding homeowners have now alleged personal injuries, including TBI, as a result of the explosion. News agencies reported that Plaintiff Anthony Borel sustained a severe head injury and was placed in a coma. Plaintiff’s injuries included an epidural hematoma, subarachnoid hemorrhage, bilateral corneal abrasions, right orbital fracture, right temporal fracture, right maxillary fracture, frontal skull fracture, 18% partial-thickness burns to the face, abdomen, arms and legs, and a severe TBI with cognitive deficiencies. Plaintiff claimed damages in excess of $20,000,000.00. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Consequential Damage Claims for Insurer's Bad Faith Dismissed

April 22, 2019 — Tred R. Eyerly - Insurance Law Hawaii
Partial dismissal of the insured's complaint seeking consequential damages for the insurer's bad faith was granted by the court. Bryant v. General Cas. Co., 2019 U.S. Dist. LEXIS 15369 (N.D. N.Y. Jan. 30, 2019). Bryant purchased from General Casualty Company of Wisconsin (GCCW) a commercial property and casualty policy to cover the insured premises. While the building was rented to a tenant who operated a restaurant, it sustained a collapse. GCCW refused to cover the loss. Bryant sued. In addition to the cost of repairing and replacing the damage to the property, Bryant alleged he was out the value of rental revenue from his tenant, which was forced to close the restaurant and relocated as a result of the unrepaired damage. 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

No Coverage Under Ensuing Loss Provision

September 09, 2011 — Tred R. Eyerly - Insurance Law Hawaii

The cost of removing and replacing cracked flanges to prevent future leakage was not covered as an ensuing loss under a builder’s risk policy in RK Mechanical, Inc. v. Travelers Prop. Casualty Co. of Am., 2011 U.S. Dist. LEXIS 83958 (D. Colo. Aug. 1, 2011).

The insured, RK Mechanical Inc., was a subcontractor hired to install plumbing for a residential construction project. RK was an additional insured on the general contractor’s policy with Travelers. RK installed approximately 170 CPVC flanges on the project. Subsequently, two of the flanges cracked, allowing water to overflow and causing water damage to the project. Travelers was notified of the flange failure and resulting water damage.

RK subsequently removed and replaced the two cracked flanges and began water remediation. Travelers paid for the cost of the water damage due to the cracked flanges.

RK then examined all of the flanges installed in the project and discovered many were cracked and/or showed signs of potential failure. RK removed and replaced the cracked flanges. RK tendered a claim and demand for indemnity to Travelers for these repair costs. Travelers denied the claim. RK then sued for breach of contract and declaratory relief. The parties filed cross motions for summary judgment.

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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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Be Proactive, Not Reactive, To Preserve Force Majeure Rights Regarding The Coronavirus

March 30, 2020 — David Adelstein - Florida Construction Legal Updates
If you are involved in construction, NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus. Things are beginning to drastically change on a minute-by-minute basis. From travel restrictions, to the suspension or cancellation of events on an international level, to company-wide policies and restrictions, the global uncertainty has led to the possibility that a force majeure delay will occur. Thinking otherwise is not being proactive. The Coronavirus, and the impacts / delays associated therewith, is beyond anyone’s control. Due to the uncertainty, it is hard to fathom at this time a reasonable challenge to someone’s reaction to this concern or their companywide response to the concern.

Revisit your contracts and see what type of force majeure language it has – anything relating to delays beyond your control or epidemics;
Examine to see whether you have a basis for additional compensation AND additional time;
Examine what type of notice you are required to provide for force majeure events;
Be proactive – send notice now of the potentiality that this pandemic can impact / delay the job –no one should take offense to this letter as this pandemic has impacted all walks of life;
If an impact occurs, send follow-up notice accordingly to ensure rights under the contract are preserved; and
For future contracts, incorporate language that specifically addresses epidemics and pandemics now that the occurrence of this issue has become real.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Helsinki is Building a Digital Twin of the City

May 20, 2019 — Aarni Heiskanen - AEC Business
The capital of Finland first tested city modeling as long back as 1987. But the most recent model of the Kalasatama district demonstrates the new state-of-the-art possibilities of this technology: creation of a highly accurate digital twin of the city. My hosts, Helsinki’s city modeling specialists Jarmo Suomisto and Enni Airaksinen, showed me their latest projects. One of them offered a glimpse of history through a lens of the future. With 3D glasses on, I was able to experience the unrealized city plan made by Eliel Saarinen, the father of the world-renowned architect Eero Saarinen. The virtual model in question was a digitized version of a huge physical model from 1915. Being able to stroll the streets and fly over the roofs of the imagined city really made me understand how awesome the original design was. I had seen a scale model of this same plan while it was laid in the foyer of the Museum of Finnish Architecture many years ago, but this experience was quite different. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Newmeyer & Dillion’s Alan Packer Selected to 2018 Northern California Super Lawyers List

July 18, 2018 — Newmeyer & Dillion
WALNUT CREEK, Calif. – JULY 10, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that litigation attorney Alan Packer has been selected to the 2018 Northern California Super Lawyers list. No more than five percent of the lawyers in the state are selected by Super Lawyers each year. Packer is a partner in the firm's expanding Walnut Creek office. He has practiced law in California for over 30 years, mostly representing parties involved in real estate, home building, commercial construction, and insurance matters. He represents business clients, homebuilders, property owners, and others in a broad range of legal matters. Packer is a frequent speaker at seminars and in-house training sessions for clients on issues relating to risk management, construction litigation, and insurance. Earlier this year, Newmeyer & Dillion attorneys in Newport Beach and Las Vegas were also selected to Super Lawyers lists. Packer brings its total to 19 Newmeyer & Dillion attorneys recognized. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations, resulting in a comprehensive and diverse listing of exceptional attorneys.

Alan Packer Partner Walnut Creek Contact 925.988.3200 alan.packer@ndlf.com Practices Business Litigation Construction Litigation Insurance Law Real Estate Litigation About Newmeyer & Dillion For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com. Read the court decision
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