SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Verdict In Favor Of Insured Homeowner Reversed For Improper Jury Instructions

October 23, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed the jury verdict in favor of the homeowners based upon improper instructions purporting to impose a duty to adjust the claim and how to construe a contract. Citizens Prop. Ins. Corp. v Mendoza, 2018 Fla. App. LEXIS 9497 (Fla. Ct. App. July 5, 2018). The insureds incurred water damage to their home caused by a water heater leak. After a claim was filed, the insurer sent an adjuster to investigate the claim. The insurer denied the claim due to an exclusion for constant or repeated seepage or leakage. At trial, the insurer offered testimony that the leak was a continued and repeated seepage of water over a long period of time, which was excluded under the policy, and not a sudden and accidental discharge of water, which would have been covered. 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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ABC, Via Construction Industry Safety Coalition, Comments on Silica Rule

February 18, 2020 — Rachel O'Connell - Construction Executive
The Construction Industry Safety Coalition (CISC) has responded to OSHA’s request for information regarding changes to the “Occupational Exposure to Respirable Crystalline Silica – Specified Exposure Control Methods Standard,” also known as the silica rule. Specifically, OSHA requested comments in mid-August on potential changes to Table 1, which designates compliance actions for a range of conditions and tasks exposing workers to respirable crystalline silica. CISC, comprised of 26 members including Associated Builders and Contractors, has formally requested that OSHA expand compliance options. “Expanding Table 1 and otherwise improving compliance with the rule is of paramount importance to member associations and contractors across the country,” CISC tells OSHA Principal Deputy Loren Sweatt. “Based upon feedback from contractors, both large and small, compliance with the rule remains challenging.” Reprinted courtesy of Rachel O'Connell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Construction is the Fastest Growing Industry in California

May 20, 2015 — Garret Murai – California Construction Law Blog
We wrote earlier about why construction workers are the happiest employees on Earth, and pointed to one possible factor: That construction, which was one of the hardest hit industries during the 2008 real estate collapse, has since bounced back. This past month, the California Employment Development Department (“EDD”) released data putting some numbers to that hypothesis. And the result: According to the EDD, over the past 12 months, construction was the fastest growing industry in California, adding more than 46,000 jobs within the last year, an increase of 6.9% from 667,000 workers in March 2014 to 713,000 workers in March 2015. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Update Regarding McMillin Albany LLC v. Super Ct.

April 28, 2016 — Richard H. Glucksman and David A. Napper – Chapman Glucksman Dean Roeb & Barger In Focus
The construction industry continues to await the California Supreme Court's highly anticipated decision regarding McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App.5 Dist.). The Supreme Court will attempt to resolve the conflict presented by the Fourth Appellate District Court's holding in Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 and rejection of the same by the Fifth Appellate District Court in McMillin Albany. The issue is whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2013. CGDRB has been closely monitoring the progress of the case and understands that the real parties in interest have submitted their opening brief on the merits. The Court granted Petitioners a further and final extension to file the answer brief on the merits. The answer deadline is Monday April 25, 2016. Stay tuned. Reprinted courtesy of Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and David A. Napper, Chapman Glucksman Dean Roeb & Barger Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com Mr. Napper may be contacted at dnapper@cgdrblaw.com Read the court decision
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Private Statutory Cause of Action Under Florida’s Underground Facility Damage Prevention and Safety Act

July 11, 2021 — David Adelstein - Florida Construction Legal Updates
Florida’s Underground Facility Damage Prevention and Safety Act is set forth in Florida Statutes Chapter 556. Any owner or operator of underground infrastructure as well as contractors that perform underground excavation and demolition operations are familiar (or, need to be familiar) with this Act and the requirements it imposes on them. In a nutshell, this Act requires excavators to notify operators of underground facilities (e.g., pipelines, cables, sewers) through a notification system before excavating or demolishing an underground location. Then notification system gives the operator of the underground facility two days’ advance notice that an excavation will be taking place. After receiving this notice, the operator of the underground facility must mark the area where its infrastructure is located which could be affected by the underground excavation or demolition operations. The Act further imposes duties on excavators to use increased caution, supervise mechanized equipment, perform excavation and demolition operations in a careful an prudent manner, and to re-notify the notification system if the operator’s marking is no longer visible so the location of the operator’s underground facility can be re-marked. 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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Fifth Circuit Requires Causal Distinction for Ensuing Loss Exception to Faulty Work Exclusion

August 29, 2022 — Avery J. Cantor & William S. Bennett - Saxe Doernberger & Vita
In Balfour Beatty v. Liberty Mutual Ins. Co., the 5th Circuit Court of Appeals provided valuable insight on coverage available through ensuing loss exceptions to faulty work and design exclusions in builder’s risk insurance policies. In Balfour Beatty, the Court held that, in order to establish coverage through an ensuing loss exception, the ensuing loss must be causally distinct from the original excluded loss.1 Balfour Beatty, serving as general contractor for construction of a commercial office building in Houston, Texas, subcontracted with Milestone for steelwork on the project. As part of this work, Milestone welded a 2-inch metal plate to external tubing on the eighteenth floor of the building. While welding the plate in place, welding slag fell down the side of the building, damaging exterior glass windows on the floors below. Balfour Beatty and Milestone, along with the developer, sought coverage for the damage to the windows under their builder’s risk policy, issued by Liberty Mutual. Liberty Mutual denied coverage, claiming that the damage was excluded by the policy’s “Defects, Errors, and Omissions” exclusion. The insureds sued, arguing that the ensuing loss exception to this exclusion would carve back coverage because the damage to the windows constituted an “ensuing loss.” Reprinted courtesy of Avery J. Cantor, Saxe Doernberger & Vita and William S. Bennett, Saxe Doernberger & Vita Mr. Cantor may be contacted at ACantor@sdvlaw.com Mr. Bennett may be contacted at WBennett@sdvlaw.com Read the court decision
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California Supreme Court Holds “Notice-Prejudice” Rule is “Fundamental Public Policy” of California, May Override Choice of Law Provisions in Policies

November 12, 2019 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
On August 29, 2019, in Pitzer College v. Indian Harbor Insurance Company, 2019 Cal. LEXIS 6240, the California Supreme Court held that, in the insurance context, the common law “notice-prejudice” rule is a “fundamental public policy” of the State of California for purposes of choice of law analysis. Thus, even though the policy in Pitzer had a choice of law provision requiring application of New York law – which does not require an insurer to prove prejudice for late notice of claims under policies delivered outside of New York – that provision can be overridden by California’s public policy of requiring insurers to prove prejudice after late notice of a claim. The Supreme Court in Pitzer also held that the notice-prejudice rule “generally applies to consent provisions in the context of first party liability policy coverage,” but not to consent provisions in the third-party liability policy context. The Pitzer case arose from a discovery of polluted soil at Pitzer College during a dormitory construction project. Facing pressure to finish the project by the start of the next school term, Pitzer officials took steps to remediate the polluted soil at a cost of $2 million. When Pitzer notified its insurer of the remediation, and made a claim for the attendant costs, the insurer “denied coverage based on Pitzer’s failure to give notice as soon as practicable and its failure to obtain [the insurer’s] consent before commencing the remediation process.” The Supreme Court observed that Pitzer did not inform its insurer of the remediation until “three months after it completed remediation and six months after it discovered the darkened soils.” In response to the denial of coverage, Pitzer sued the insurer in California state court, the insurer removed the action to federal court and the insurer moved for summary judgment “claiming that it had no obligation to indemnify Pitzer for remediation costs because Pitzer had violated the Policy’s notice and consent provisions.” Reprinted courtesy of Timothy Carroll, White and Williams and Anthony Miscioscia, White and Williams Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Read the court decision
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Report to Congress Calls for Framework to Cut Post-Quake Recovery Time

February 01, 2021 — Bruce Buckley - Engineering News-Record
Engineers and government agencies along with model building code and standard developers should work together to create a national framework more focused on earthquake resilience and post-quake recovery time, according to a report delivered to Congress last week. While current seismic codes address life safety, the report says stakeholders should also consider re-occupancy and functional recovery time, taking into account the potential impacts to a community as a whole. Reprinted courtesy of Bruce Buckley, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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