SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Duty to Defend Sorted Between Two Insurers Based Upon Lease and Policies

November 02, 2017 — Tred R. Eyerly - Insurance Law Hawaii
Two insurers disagreed on which was responsible for defense costs in the underlying personal injury suit against the insured. Nautilus Ins. Co. v. Westfield Ins. Co., 2017 U.S. Dist. LEXIS 158480 (E.D. Pa. Sept. 27, 2017). Knerr Group, Inc. lease property to Podcon, Inc. pursuant to a written lease. A man named Anthony Postell suffered an injury in an accident on the premises during the term of the lease. Postell filed a personal injury action against Knerr and Podcon, among others. Nautilus provided a defense to Knerr in the Postell case pursuant to a policy Nautilus issued to Knerr. Podcon was insured by Westfield. 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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When Does a Contractor Legally Abandon a Construction Project?

January 24, 2018 — Rick Erickson - Real Estate Litigation Blog
Lately, we’ve been spending more time as litigators pursuing and defending claims of abandonment against contractors. It has become apparent that abandonment is often misinterpreted in its legal meaning and effect. Here are some thoughts on abandonment to consider. On its face, the concept of abandonment is simple enough. For any number of reasons, a contractor abandons a project when the contractor stops showing up. Abandonment is major concern for all players on the project because it causes critical path delays and significant costs to replace the contractor with another contractor, many times at a much higher cost than the original contractors’ bid. Read the court decision
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Reprinted courtesy of Rick Erickson - Snell & Wilmer
Mr. Erickson may be contacted at rerickson@swlaw.com

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Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The Eighth Circuit determined a jury instruction regarding the applicability of the "all-risk" policy’s exclusion for "collapse" was inadequate. See KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 2011 U.S. App. LEXIS 22158 (8th Cir. Nov. 3, 2011).

KAAPA had nine large, cylindrical, stainless steel tanks fabricated at its location. Soon after operations began in 2003, some of the tanks experienced unusual movement and began to shift. A geotechnical engineer found "silty clay" had been used for infill instead of compacted granular fill called for in engineering drawings. A year long plan to repair all nine tanks was implemented.

Affiliated’s "all-risk" policy excluded damage caused by faulty workmanship. It also excluded damage caused by settling or cracking. The settling exclusion went on to provide, "This exclusion will not apply to loss or damage resulting from collapse of: a building or structure; or material part of a building or structure." Affiliated denied coverage because of the faulty workmanship and settling exclusions.

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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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North Carolina Court Rules In Favor Of All Sums

July 13, 2020 — Lorelie S. Masters & Patrick M. McDermott - Hunton Andrews Kurth
A North Carolina court recently ruled in favor of all sums allocation. Duke Energy Carolinas, LLC v. AG Insurance SA/NV, No. 17 CVS 5594 (N.C. Sup. Ct.). In that case, Duke Energy is seeking coverage for “liabilities linked to coal combustion residuals (‘CCRs’), i.e., coal ash, at fifteen Duke-owned power plants in North and South Carolina.” In a recent summary judgment decision, the court resolved a dispute between Duke and TIG Insurance Company, as successor to Ranger Insurance Company, about whether all sums allocation or pro rata allocation applied. The court found that “the non-cumulation provisions make plain” that all sums allocation applied. It also noted that “a large majority of the courts in other jurisdictions that have considered this issue have recognized that non-cumulation provisions such as those here compel all sums rather than pro rata allocation.” The decisions to the contrary, according to the court, had ruled “done so on public policy grounds” and not based on “the application of the rules of contract interpretation.” Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Patrick M. McDermott, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. McDermott may be contacted at pmcdermott@HuntonAK.com Read the court decision
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Certified Question Asks Washington Supreme Court Whether Insurer is Bound by Contradictory Certificate of Insurance

January 21, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit certified a question to the Washington Supreme Court as follows:

Under Washington law, is an insurer bound by representations made by its authorized agent in a certificate of insurance with respect to a party's status as an additional insured under a policy issued by the insurer, when the certificate includes language disclaiming its authority and ability to expand coverage?

T-Mobile USA Inc. v. Selective Ins. Co lf Am., 2018 U.S. App. LEXIS 31863 (9th Cir. Nov. 9, 2018). In 2010, T-Mobile entered into a Field Services Agreement (FSA) with Innovative Engineering, Inc. under which Innovative would provide services in connection with the construction of rooftop cellular antennae towers in New York City. The FSA required Innovative to maintain general liability insurance naming T-Mobile as an additional insured, and required that Innovative provide T-Mobile with certificates of insurance documenting the coverage. Innovative obtained coverage from Selective Insurance Company of America. 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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Travelers’ 3rd Circ. Win Curbs Insurers’ Asbestos Exposure

May 03, 2017 — Gregory D. Podolak - Saxe Doernberger & Vita, P.C.
In breaking news this week, LAW360.com posted that the Third Circuit ruled Friday that “a common exclusion found in a Travelers policy bars coverage for claims arising out of asbestos in any form, limiting insurers’ potential exposure to asbestos injury claims by precluding policyholders from arguing that the exclusionary language is ambiguous and doesn’t extend to products containing the carcinogen.” In its detailed analysis of the decision, LAW360 turned to Greg Podolak for his analysis. Gregory D. Podolak, managing partner of Saxe Doernberger & Vita PC’s Southeast office, said the ruling is a cautionary tale that should galvanize policyholders and their insurance brokers to take a closer look at policies to delete or curtail broad “arising out of” language in exclusions. Otherwise, insureds could find themselves without any coverage for claims even remotely related to a certain product, he said. Read the court decision
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Reprinted courtesy of Gregory D. Podolak, Saxe Doernberger & Vita, P.C.
Mr. Podolak may be contacted at gdp@sdvlaw.com

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TOP TAKE-AWAY SERIES: The 2023 Fall Meeting in Washington, D.C.

November 13, 2023 — Marissa L. Downs & Jennifer M. Kanady - The Dispute Resolver
Over 500 construction lawyers, experts, and consultants descended on Washington last week for the Forum’s 2023 Fall Meeting. Newly minted Forum Chair John Cook and Program Coordinators Catherine Delorey and Brian Zimmerman put together a stellar program focused on navigating government construction. For this installation of the post-meeting post, I'm teaming up with guest contributor, Jennifer Kanady, to bring you 10 of our top take-aways from this unique program. 10. Contracting with the government is replete with risk that could easily trap the unwary. Nobody likes to be taken advantage of. But hell hath no fury like the U.S. Government scorned. Erin Cannon-Wells and Aaron Silberman, gave a (truly) delightful, Indiana-Jones-inspired presentation on the regulations that can doom the unwitting contractor who is less than perfectly forthright in its dealings. The government has created financial incentives for members of the public to report your company’s violations as part of a qui tam action. When you consider the number of potential whistleblowers in the bidding process and the contracting chain, a qui tam action would seem more likely than not. Add to that the sanctions contractors might face for even innocent errors either by their own companies or their downstream subs, and government contracting begins to sound increasingly like the Temple of Doom. Oh, and in case you were only focused on affirmative claims, beware the “reverse false claim” which is concealing information that would rightfully entitle the government to a credit… Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP and Jennifer M. Kanady, FAC Services, LLC Ms. Downs may be contacted at mdowns@lauriebrennan.com Ms. Kanady may be contacted at JKanady@facfin.com Read the court decision
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Montana Trial Court Holds That Youths Have Standing to Bring Constitutional Claims Against State Government For Alleged Climate Change-Related Harms

September 18, 2023 — Paul A. Briganti & Julia Castanzo - White and Williams LLP
On August 14, 2023, in a “landmark” ruling, a Montana state court held that youth plaintiffs had standing to assert constitutional claims against the State of Montana, its governor and state agencies for “ignoring” the impact of greenhouse gas (GHG) emissions on climate change. Held v. State of Montana, Cause No. CDV-020-307 (1st Judicial Dist. Ct., Lewis & Clark Cty., Mt.). Agreeing with the plaintiffs, the court concluded that a limitation in the Montana Environmental Policy Act (MEPA), which prohibited the state from considering climate impacts when issuing permits for energy projects, violated the plaintiffs’ right under the state constitution to a “clean and healthful environment.” MEPA, enacted in 1971, states that its purposes include “provid[ing] for the adequate review of state actions in order to ensure that . . . environmental attributes are fully considered by the legislature in enacting laws to fulfill constitutional obligations . . . .” In 2011, the legislature amended the statute to curtail the scope of environmental reviews. Under the so-called MEPA limitation, Montana agencies cannot consider “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Mont. Code Ann. § 75-1-201(2)(a). In 2023, the legislature added a provision that eliminated equitable remedies (i.e., the ability to “vacate, void, or delay a lease, permit, license, certificate, authorization, or other entitlement or authority”) for litigants who “claim that [an] environmental review is inadequate based in whole or in part upon greenhouse gas emissions and impacts to the climate in Montana or beyond Montana’s borders . . . .” Id. § 75-1-201(6)(a)(ii). Reprinted courtesy of Paul A. Briganti, White and Williams LLP and Julia Castanzo, White and Williams LLP Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Ms. Castanzo may be contacted at castanzoj@whiteandwilliams.com Read the court decision
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