SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insolvency of Primary Carrier Does Not Invoke Excess Coverage

January 06, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insured failed to present any argument for excess coverage after the insolvency of the primary carrier. Canal Ins. Co. v. Montello, Inc., 2015 U.S. App. LEXIS 20625 (10th Cir. Nov. 27, 2015). Montello distributed an oil drill containing asbestos between 1966 and 1985. Montello was sued by individuals claiming injuries due to exposure to the asbestos. Montello was insured by The Home Insurance Company from March 1975 to March 1984. In 2003, Home was declared insolvent. Home did not pay any claims for bodily injury on Montello's behalf. 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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Pulled from the Swamp: EPA Wetland Determination Now Judicially Reviewable

September 15, 2016 — CDJ STAFF
Landowners and developers bogged in an EPA wetland determination were recently thrown a life line when the United States Supreme Court determined The Army Corps of Engineer’s (Corps) “jurisdictional determinations” (JD) regarding wetland designations are reviewable by the court. United States Army Corps of Engineers v. Hawkes Co. Inc. Under the Clean Water Act (CWA) landowners and developers who do not have the proper permits can face severe criminal and civil penalties for releasing any pollutant into “the waters of the United States.” Anybody stuck wading through the permitting process will tell you it is difficult, time consuming, expensive, and may eventually prohibit the intended use of the property. Furthermore, there is yet to be a consensus on the definition or scope of the term “waters of the US”. Consequently, a landowners or developers may never be certain whether a permit is necessary before conducting any activity that may discharge a pollutant into a “water of the United States”. Read the court decision
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Reprinted courtesy of Sean Minahan, Lamson, Dugan and Murray, LLP
Mr. Minahan may be contacted at sminahan@ldmlaw.com

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Quick Note: Staying, Not Dismissing, Arbitrable Disputes Under Federal Arbitration Act

July 31, 2024 — David Adelstein - Florida Construction Legal Updates
As you hopefully know from posted articles, arbitration is a creature of contract. Stated differently, there must be a contractual basis to have a dispute resolved through binding arbitration. The Federal Arbitration Act (FAA) applies to transactions involving interstate commerce. Oftentimes, lawsuits are filed despite an arbitration provision in a contract because parties can, if they desire, waive their rights to have their dispute resolved through binding arbitration. In what should not be a shocker, the United States Supreme Court in Smith v. Spizzirri, 144 S.Ct. 1173, 1178 (2024), held that when a federal “district court finds that a lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, section 3 of the FAA compels the court to stay the proceeding.” Dismissing the lawsuit should not be the option. Staying the lawsuit should. 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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Contract’s Definition of “Substantial Completion” Does Not Apply to Third Party for Purposes of SOL, Holds Court of Appeal

June 15, 2020 — Garret Murai - California Construction Law Blog
Those of you in the construction industry know that the two primary statutes of limitation are the 4-year year statute of limitations for patent defects and 10-year statute of limitations for latent defects. Both statutes begin to run on “substantial completion.” In Hensel Phelps Construction Co. v. Superior Court of San Diego, Case No. D076264 (January 22, 2020), the 4th District Court of Appeal examined whether the term “substantial completion,” as used in Civil Code section 941, which applies to residential construction, can be defined by the parties’ contract and applied to third-parties. The Hensel Phelps Case Hensel Phelps Construction Co. entered into a prime construction contract with the owner and developer of a mixed-use project in San Diego. Hensel Phelps was the general contractor on the project. The project included a residential condominium tower which would eventually be managed and maintained by Smart Corner Owners Association. Smart Corners was not a party to the contract. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Coyness is Nice. Just Not When Seeking a Default Judgment

March 04, 2019 — Garret Murai - California Construction Law Blog
As Morrissey of the Smith’s sang: Coyness is nice, but Coyness can stop you, from saying all the things in life you’d like to. It’s not uncommon in litigation to see a complaint asking for “damages according to proof.” Call it laziness. Call it hiding the ball. Call it coy, even. I call it risky. And here’s why: If a defendant doesn’t appear and you need to seek a default judgment against him, her, or it, you are barred from doing so, since you are limited to recovering the amount you sought. And last I checked, something of nothing is nothing. In Yu v. Liberty Surplus Insurance Corporation, California Court of Appeals for the Fourth District, Case No. G054522 (December 11, 2018), one plaintiff found this out the hard way, although perhaps not quite in the way they expected it. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

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State And Local Bid Protests: Sunk Costs and the Meaning of a “Win”

July 11, 2022 — Amy Anderson - ConsensusDocs
Across the United States, state and local agencies often use competitive bidding to award contracts for various types of work. Generally speaking, a bid protest is when an unsuccessful bidder challenges the award by the state or local agency to another competitive bidder. Procurement at this level is entirely distinct from federal procurement. The details of any bid protest will be specific to the locality. However, a question that very often comes up when a state or local agency uses competitive bidding: what happens when I lose the bid? More specifically, if I should not have lost because my bid was the lowest or best value, can I make the state or local agency award the bid to me? Read the court decision
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Reprinted courtesy of Amy Anderson, Jones Walker LLP (ConsensusDocs)
Ms. Anderson may be contacted at aanderson@joneswalker.com

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Three Reasons Late Payments Persist in the Construction Industry

December 22, 2019 — Patrick Hogan - Construction Executive
Construction professionals are all too familiar with the payment issues that plague the construction industry. Contractors, subcontractors and material suppliers often have to deal with payment delays and even nonpayment—affecting cash flow and their ability to meet expenses. According to an Atradius study, a quarter of all B2B invoices issued in North America are overdue. The construction industry accounted for one-third of those past-due invoices, and many contractors and construction business owners do not have a positive outlook on the industry's payment issues. The same survey found 55% of U.S. firms think there will be no change in the industry’s payment practices over the coming months—one-third even expects an increase in late payments. These findings show that managing cash flow is a significant challenge in the construction industry. Having a negative cash flow will push the company toward financial trouble, which may ultimately lead to its demise. Understanding the reasons why payment issues persist in construction will help contractors protect their business, prevent these issues from happening or at least minimize their effect on the current operations. Reprinted courtesy of Patrick Hogan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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California Supreme Court Holds that Design Immunity Does Not Protect a Public Entity for Failure to Warn of Dangerous Conditions

June 26, 2023 — Garret Murai - California Construction Law Blog
Get ready for more street signage. The California Supreme Court, in Tansavatdi v. City of Rancho Palos Verdes, (2023) 14 Cal.5th 639, has held that Government Code section 830.6, which protects public entities from claims alleging dangerous conditions on public property if the design was approved by a public agencies’ legislative body or their designee, does not shield a public entity from claims that the public entity should have warned the public of known dangers. We wrote about the Tansavatdi case a while back when it was before the Court of Appeals. The case involves a very sad set of facts. A young boy was killed by a semi-trailer while waiting at a stoplight on his bicycle in Rancho Palos Verdes, California. The area where the boy was killed did not have a bicycle lane although stretches of the same road did. The 2nd District Court of Appeal, on appeal from a motion for summary judgment, held that even if the public entity could establish that it was immune from liability under Government Code section 830.6, the trial court should have considered whether the public entity should have been liable for failing to warn of a dangerous condition on public property. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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