Seattle Washington Building Expert Directory

If a Defect Occurs During Construction, Is It an "Occurrence?"

February 12, 2024 — Brendan J. Witry - The Dispute Resolver
Establishing insurance coverage for construction defects is almost as important as establishing liability in the underlying construction defect litigation itself. The risk to the defendant contractor of defending a construction claim can place significant burdens on a contractor’s operations and an uninsured judgment might even put the contractor out of business. For owners, suing a contractor for construction defects can become academic if there is no prospect of insurance coverage; obtaining a $1 million judgment against a contractor with limited assets would be a pyrrhic victory. Commercial General Liability (CGL) carriers are obligated to defend claims that potentially fall within the coverage granted by the policy.[1] When presented with a claim, CGL insurers typically have three options: (1) assume the defense without reservation; (2) assume the defense asserting defenses to coverage, and depending on the state, reserving the right to recover defense costs if it later determines there is no duty to defend; or (3) deny the claim outright and seek a declaratory judgment holding that the insurer has no duty to defend or indemnify. An insurer may deny the claim outright and not seek a declaratory judgment, but does so at its peril because it can expose the insurer to significant liability if the insured later shows the insurer in fact had a duty to defend. Read the court decision
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Reprinted courtesy of Brendan J. Witry, Laurie & Brennan LLP
Mr. Witry may be contacted at bwitry@lauriebrennan.com

Don’t Ignore a Notice of Contest of Lien

April 29, 2024 — David Adelstein - Florida Construction Legal Updates
A recent case, Jon M. Hall Company, LLC v. Canoe Creek Investments, LLC, 49 Fla.L.Weekly D812a (Fla. 2d DCA 2024), demonstrates four important things when it comes to liens:

An owner can shorten the time period to foreclose on the lien, whether against the real property or a lien transfer bond, to 60 days by recording a notice of contest of lien;
An owner can transfer a lien to a lien transfer bond during litigation;
An owner can record a notice of contest of lien to force the lienor to amend its lawsuit to sue the lien transfer bond surety within 60 days; and
A contractors’ failure to amend its lawsuit to sue the lien transfer bond within 60 days will extinguish its rights to pursue a claim against the lien transfer bond, and will otherwise extinguish the lien, fairly or unfairly.

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

Seeking the Urban Lifestyle in the Suburbs

March 05, 2015 — Beverley BevenFlorez-CDJ STAFF
As the ‘burbs become more urbanized, the definition of city is changing. Builder Magazine reported that while builders have responded to buyers who wanted an urban lifestyle, “what nearly all of them have learned in the process is that ‘city’ doesn’t mean what it used to. Neither does ‘suburb.’ In fact, nearly every builder that added a post-recession ‘urban’ division has found that home buyers in search of an urban lifestyle aren’t married to living downtown. For many, it seems it’s not ‘the city’ they want at all—it’s the lifestyle.” Leigh Gallagher, assistant managing editor of Fortune and author of The End of the Suburbs: Where the American Dream is Moving, told Builder, “People don’t necessarily want to live in Manhattan. They want a little bit of Manhattan sprinkled right near them.” Read the court decision
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Second Circuit Denies Petitions for Review of EPA’s Final Regulations to Establish Requirements for Cooling Water Intake Structures

August 20, 2018 — Anthony B. Cavender - Gravel2Gavel
On July 23, 2018, the U.S. Court of Appeals for the Second Circuit decided the case of Cooling Water Intake Structure Coalition v. EPA. Environmental conservation groups and industry associations petitioned for review of a final rule promulgated by the U.S. Environmental Protection Agency (EPA) pursuant to section 316(b) of the Clean Water Act (CWA), establishing requirements for cooling water intake structures at existing facilities. Denying the petitions for review, the Court of Appeals summarized:

“Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA 3 gave adequate notice of its rulemaking, we DENY the petitions for review.”

This is a significant CWA and Endangered Species Act (ESA) decision involving the operation of major industrial facilities requiring the daily use of large amounts of water taken from adjacent bodies of water. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Insuring Lease/Leaseback Projects

August 19, 2024 — David G. Jordan & Jeffrey J. Vita - Saxe Doernberger & Vita, P.C.
Overview Several states utilize a unique statutory mechanism to allow school districts to finance the construction of public-school facilities. This arrangement (known as a “lease-leaseback agreement”) allows a school district to lease property to a contractor/developer, who then constructs or renovates a school facility on the property. Once the work is completed, the contractor/developer leases the school building back to the school district. The school district then makes lease payments over time, often many years, which can be structured in various ways to spread out the cost of construction. The arrangement typically requires a site lease for the land leased to the contractor/developer, a facilities lease for the lease-back of the school building to the school district and a traditional construction agreement. In some ways, the arrangement resembles a Public-Private Partnership (PPP) whereby a public entity collaborates with a private entity for the purpose of financing and delivering a project traditionally provided solely by the public sector. Reprinted courtesy of David G. Jordan, Saxe Doernberger & Vita, P.C. and Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. Mr. Jordan may be contacted at DJordan@sdvlaw.com Mr. Vita may be contacted at JVita@sdvlaw.com Read the court decision
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Property Owner Entitled to Rely on Zoning Administrator Advice

May 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In the recent case of In Re Langlois/Novicki Variance Denial, 175 A.3d 1222, 2017 VT 76 (2017), the Vermont court addressed the question of whether a property owner could enforce – by equitable estoppel principles – a representation by a town zoning administrator that no permit or variance was needed for the property owner’s proposed construction. In that case, a landowner wanted to add a pergola to an existing concrete patio on his land. During a social visit at the property, the property owner asked the town zoning administrator if he needed a permit. The town zoning administrator told the property owner that no permit was needed. The property owner thereafter showed the zoning administrator a sketch of the planned construction, and again asked if a permit was required. The town zoning administrator looked at the sketch and repeated his prior advice that no permit was needed. The property owner then spent $33,000 to build the pergola. After incurring the expense, the property owner was advised that the structure violated zoning regulations. The property owner requested a variance, which the zoning board denied. The Court held that the town was estopped from requiring removal of the pergola. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

Hawaii Federal District Court Rejects Insurer's Motion for Summary Judgment on Construction Defect Claims

November 06, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Taking into consideration a "Revised Occurrence Endorsement," the federal district court determined the insurer had a duty to defend. Gemini Ins Co. v. Constrx Ltd., 2018 U.S. Dist. LEXIS 163453 (D. Haw. Sept. 24, 2018). Constrx Ltd. (CRX) contracted with the AOAO to perform remedial construction repairs to condominium buildings and apartment units. CRX asserted that it completed all work, including charge orders and punch list items and it left the site. CRX was paid less that the contract amount and demanded arbitration against the AOAO. In the arbitration the AOAO relied upon a report by Posard Brock & Associates (PBA) Report which set forth the AOAO's claims against CRX, including corrective work, remaining punch list work, construction delay costs, cost overruns, and other items justifying its payment than less that the contract amount. 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

Homeowner Sues Brick Manufacturer for Spalling Bricks

October 22, 2013 — CDJ STAFF
A Columbia, South Carolina homeowner has sued Kinney Brick Co., alleging that the bricks used in his home were defective and are now crumbling. The lawsuit alleges that the manufacturer and the distributor were both aware that the bricks would retain moisture and crumble. Read the court decision
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