SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Disputes Over Arbitrator Qualifications: The Northern District of California Offers Some Guidance

August 10, 2021 — Justin K. Fortescue - White and Williams
The selection of an arbitration panel can often lead to disputes between the parties regarding things like whether a particular candidate is qualified, whether a challenge to an arbitrator’s qualifications can be addressed pre-award and whether a party that names an unqualified arbitrator should lose the opportunity to name a replacement. In Public Risk Innovations v. Amtrust Financial Services, No. 21-cv-03573, 2021 U.S. Dist. LEXIS 129464 (N.D. Ca. July 12, 2021), the court provided answers on all three of these issues. In Amtrust, the parties filed cross-motions to compel arbitration. Although both parties agreed the dispute was arbitrable, they disagreed about whether Public Risk Innovations, Solutions and Management’s (PRISM) arbitrator was qualified under the terms of the applicable contract. In seeking to have PRISM’s arbitrator disqualified, Amtrust argued that he: (1) was not a “current or former official of an insurance or reinsurance company”; and (2) was not “disinterested.” Amtrust also argued that because PRISM named an unqualified arbitrator (and presumably the time to appoint had passed), PRISM should be deemed to have failed to select an arbitrator as required by the contract and that Amtrust had the right to select a second arbitrator of its choice. Read the court decision
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Reprinted courtesy of Justin K. Fortescue, White and Williams
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com

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'There Was No Fighting This Fire,' California Survivor Says

September 14, 2020 — The Associated Press (Brian Melley & Terence Chea) - Bloomberg
Berry Creek, Calif. (AP) -- John Sykes built his life around his cabin in the dense woods of Northern California. He raised his two children there, expanded it and improved it over time and made it resilient to all kinds of disaster except fire. So when the winds started howling Tuesday and the skies became so dark from smoke that he had to turn on his lights at midday, he didn’t hesitate to leave it all behind in an instant before any evacuation order. With the disaster two years ago in nearby Paradise, in which 85 people perished in the deadliest and most destructive fire in modern state history, still fresh on his mind, Sykes got his wife and a friend into his car and left with only a change of clothes each. “All I could do is look in the rear view mirror and see orange sky and a mushroom cloud and that told me it was hot and to keep going,” Sykes said Friday. “It was a terrifying feeling.” Read the court decision
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Reprinted courtesy of Bloomberg

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Insurer’s Duty to Indemnify Not Ripe Until Underlying Lawsuit Against Insured Resolved

February 03, 2020 — David Adelstein - Florida Construction Legal Updates
A liability insurer has two duties: 1) the duty to defend its insured; and 2) the duty to indemnify its insured. With respect to the second duty – the duty to indemnify – this duty is typically “not ripe for adjudication unless and until the insured or putative insured has been held liable in the underlying action.” Hartford Fire Ins Co. v. Beazer Homes, LLC, 2019 WL 5596237, *2 (M.D.Fla. 2019) (internal quotation omitted). For instance, Beazer Homes involved an insurance coverage dispute stemming from construction defects. An owner sued its general contractor for construction defects relating to stucco problems. The general contractor paid for the repairs. The general contractor then sued its stucco subcontractor to recover the costs it incurred. The subcontractor tendered the defense of the lawsuit to its commercial general liability insurer which is defending its insured-subcontractor under the commonly issued reservation of rights. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Hawaii Federal District Court Denies Motion for Remand

December 21, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court refused to remand the insureds' case after the insurer removed from state court. Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2016 U.S. Dist. LEXIS 15681 (D. Haw. Nov. 10, 2016). The underlying case was filed in state court on Maui. The underlying plaintiffs were condominium owners who brought claims against the insured, Maui Land and Pineapple Co., Inc. (MLP), and other defendants allegedly involved in the development of the project. Ryan Churchill, one of the named defendants, served as president of MLP and was on the board of the project's Association of Apartment Owners (AOAO). The underlying plaintiffs asserted claims for: breach of fiduciary duty; seeking access to books and records of the AOAO; and for injunctive/declaratory relief against MLP, Mr. Churchill, and all other defendants. 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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New York Court of Appeals Finds a Proximate Cause Standard in Additional Insured Endorsements

June 15, 2017 — Geoffrey Miller - Saxe Doernberger & Vita, P.C.
In The Burlington Insurance Company v. NYC Transit Authority, et al., No. 2016-00096, the New York Court of Appeals issued a landmark decision with regard to the meaning of “caused, in whole or in part, by” in the additional insured context. In a split decision, the court rejected Burlington Insurance Company’s argument that the language implied a “negligence” standard, but held that coverage was provided to the additional insured only where the named insured’s acts or omissions were the proximate cause of the injury:

While we [the majority] agree with the dissent that interpreting the phrases differently does not compel the conclusion that the endorsement incorporates a negligence requirement, it does compel us to interpret ‘caused, in whole or in part’ to mean more than ‘but for’ causation. That interpretation, coupled with the endorsement’s application to acts or omissions that result in liability, supports our conclusion that proximate cause is required here.[1]

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Reprinted courtesy of Geoffrey Miller, Saxe Doernberger & Vita, P.C.
Mr. Miller may be contacted at gjm@sdvlaw.com

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1 De Haro: A Case Study on Successful Cross-Laminated Timber Design and Construction in San Francisco

November 06, 2023 — Cait Horner, Adam J. Weaver & Allan C. Van Vliet - Gravel2Gavel Construction & Real Estate Law Blog
At the intersection of San Francisco’s SOMA, Potrero Hill and Showplace Square districts, a first-of-its-kind building offers an example of the potential widespread success of mass timber construction in the United States. 1 De Haro, a 134,000-square-foot, 4-story office and light industrial project built by Bay Area developer SKS Partners is not only the first cross-laminated timber (CLT) building in the San Francisco, it is also the first multistory mass timber building of its type to be fully executed in California and the first CLT project in the United States to be delivered via railways. We recently sat down with Yvonne Fisher and Lee Ishida of SKS to discuss the unique design process, marketing success and overall industry buzz surrounding one of their latest projects. Reprinted courtesy of Cait Horner, Pillsbury, Adam J. Weaver, Pillsbury and Allan C. Van Vliet, Pillsbury Ms. Horner may be contacted at cait.horner@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com Read the court decision
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Reprinted courtesy of

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Amazon Feels the Heat From Hoverboard Fire Claims

January 20, 2020 — William L. Doerler - The Subrogation Strategist
In State Farm Fire & Cas. Co. v. Amazon.com, Inc., No. 3:18CV166-M-P, 2019 U.S. Dist. LEXIS 189053 (Oct. 31, 2019), the United States District Court for the Northern District of Mississippi considered a Motion for Judgment on the Pleadings filed by defendant Amazon.com, Inc. (Amazon). Amazon argued that, because it was a “service provider” who cannot be held liable under Mississippi’s Product Liability Act (MPLA), Miss. Code § 11.1.63, the negligence and negligent failure to warn claims filed against it by plaintiff State Farm Fire & Casualty Company (State Farm) failed as a matter of law. The court, looking beyond the MPLA, held that State Farm’s complaint stated a claim against Amazon. In State Farm, Taylor and Laurel Boone (the Boones), State Farm’s subrogors, purchased two hoverboards from third parties in transactions facilitated by Amazon. They purchased the first hoverboard on October 31, 2015 and the second on November 10, 2015. The Boones started using the hoverboards on or about December 25, 2015. On March 16, 2016, the hoverboards caught fire and the fire spread to destroy the Boones’ home. As alleged in the amended complaint, the hoverboards were “manufactured by unknown manufacturers from China.” State Farm, as the Boones’ subrogee, filed suit asserting negligence and negligent failure to warn claims against Amazon. Amazon filed a Motion for Judgment on the Pleadings, arguing that State Farm’s claims against it were governed by the MPLA and, as a service provider, it was not liable under the MPLA. In response, State Farm argued that Amazon was liable because it acted as a “marketplace” and that, rather than MPLA claims, Amazon is subject to common law negligence and failure to warn claims. The District Court agreed with State Farm. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Avoiding Lender Liability for Credit-Related Actions in California

October 27, 2016 — Anthony J. Carucci – Snell & Wilmer Real Estate Litigation Blog
Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real Est. § 35:3 (explaining that the business of lending money is subject to the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., the Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq., the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq.). Specifically, lenders have been held liable for credit-related actions where, among other things, the lender (1) breached a loan commitment; (2) committed fraud; or (3) breached a fiduciary duty owed to the borrower. The Lender-Borrower Relationship As a general rule, a lender does not owe a duty of care to a borrower when the lender’s involvement in a transaction does not exceed the scope of its conventional role as a lender of money. Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 466 (“[I]t is established that absent special circumstances . . . a loan transaction is at arms-length and there is no fiduciary relationship between the borrower and lender.”); Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 (holding lender owed no duty of care to a borrower in preparing an appraisal of the real property that was security for the loan when the purpose of the appraisal is to protect the lender by satisfying it that the collateral provided adequate security for the loan, and noting that “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money”). Read the court decision
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Reprinted courtesy of Anthony J. Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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