SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Colorado’s Federal District Court Finds Carriers Have Joint and Several Defense Duties

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
An issue that has plagued builders in Colorado construction defect litigation is the difficulty of getting additional insured carriers to fully participate in the builder’s defense, oftentimes leaving the builder to fund its own defense during the course of the litigation. Many additional insurers offer a variety of positions regarding why they will not pay for fees and costs during the course of a lawsuit. Some insurers argue that, until after trial, it is impossible to determine its proper share of the defense, and therefore cannot make any payments until the liability is determined as to all of the potentially contributing policies. (This is often referred to as the “defense follows indemnity” approach.) Others may make an opening contribution to defense fees and costs, but fall silent as fees and costs accumulate. In such an event, the builder may be forced to fund all or part of its own defense, while the uncooperative additional insured carrier waits for the end of the lawsuit or is faced with other legal action before it makes other contributions. Recent orders in two, currently ongoing, U.S. District Court cases provide clarity on the duty to defend in Colorado, holding that multiple insurers’ duty to defend is joint and several. The insured does not have to go without a defense while the various insurers argue amongst themselves as to which insurer pays what share. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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New Jersey Appellate Court Reinstates Asbestos Action

March 05, 2015 — Beverley BevenFlorez-CDJ STAFF
According to the New Jersey Law Journal, an asbestos case involving “a long-time ship worker who died of mesothelioma was reinstated by a New Jersey appellate court on March 3.” A lower court judge had “dismissed the claims against them based on his view that the evidence presented by the plaintiff was insufficient to show that the ships on which he worked contained asbestos and that he was exposed to it.” However, the appeals judges disagreed. “Although the summary judgment motion was decided on a very narrow ground, we conclude that the record as a whole establishes a triable issue as to whether plaintiff was exposed to asbestos or asbestos-containing products on defendant’s dredges,” judges Susan Maven and Henry Carroll stated, according to the New Jersey Law Journal. Read the court decision
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APROPLAN and GenieBelt Merge, Creating “LetsBuild” – the Build Phase End-to-End Digital Platform

March 18, 2019 — Aarni Heiskanen - AEC Business
Responding to a rising need to deliver an all-in-one solution, supporting on-site planning, progress communication, snagging, drawings and checklists, GenieBelt and APROPLAN have decided to merge to form LetsBuild – the European leader in delivering an end-to-end solution to the global construction industry. For the past five years, GenieBelt CEO Klaus Nyengaard and APROPLAN CEO Thomas Goubau have met on a regular basis to discuss developments in the construction technology sector and how to increase efficiency and minimise rework, miscommunication, and errors. “We share the vision that ‘simple to use’-products will bring immense value to the construction sector. When we met in October 2018, we concluded that the way to realize this vision was to unite our companies to create a broader product and cover more needs in the market,” says LetsBuild CEO Klaus Nyengaard. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Court of Appeal: Privette Doctrine Does Not Apply to Landlord-Tenant Relationships

March 20, 2023 — Garret Murai - California Construction Law Blog
We’ve talked a fair bit about the Privette doctrine which provides for a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. We’ve also talked about its two exceptions: (1) The Hooker exception which provides for liability if the hirer retained control over the work being performed, negligently exercised that control, and its negligent exercise of that control contributed to an employee’s injury; and (2) the Kinsman exception which provides for liability if the hirer knew or should have known of a concealed hazard, that the hired party did not know of and could not have reasonably discovered, and the hirer failed to warn the hired party of the hazard. The Privette doctrine is not the end all be all of landowner liability, however, as discussed in Ramirez v. PK 1 Plaza 580 SC LP, 85 Cal.App.5th 252 (2022). 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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Insurer Cannot Abandon Defense Agreement on Underlying Asbestos Claims Against Insured

June 12, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court found that the insurer continued to be bound by a defense agreement entered with the insured who merged with another company. Continental Ins. Co. v. Neles-Jamesbury, Inc., 2023 U.S. Dist. LEXIS 52521 (D. Mass. March 28, 2023). In 1990, Neles-Jamesbury became the sucessor by merger to the liabilities of Jamesbury Corp. and Neles, Inc. The companies were both in the business of manufacturing and selling valves. Continental issued two primary CGL policies to Neles, Inc. from 1986 to 1988. After the merger, Neles-Jamesbury was involved in numerous lawsuits that alleged bodily injury from asbestos exposure. Due to the continuing question of whether the policies created duties for Continental, the parties entered into a 2007 Cost Sharing Agreement, which served to clarify and define their respective obligations and coverage in the lawsuits. The agreement noted that Continental wanted to avoid the expense and uncertainties of litigation over defense obligations. 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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2021 2Q Cost Report: Industry Execs Believe Recovery Is in Full Swing

August 04, 2021 — Jonathan Keller - Engineering News-Record
The first six months of 2021 have seen big materials cost hikes, increasing labor shortages and uncertainty over federal action on a major infrastructure package. Despite the headwinds, ENR’s Construction Industry Confidence Index has surged up 17 points to a rating of 68—the highest single jump between quarters since the index was started in 2009. The previous record was 16 points between Q4 of 2011 and Q1 of 2012. Reprinted courtesy of Jonathan Keller, Engineering News-Record Mr. Keller may be contacted at kellerj@enr.com Read the full story... Read the court decision
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Force Majeure Recommendations

August 15, 2022 — Denise Motta - Gordon & Rees Construction Law Blog
This Bulletin provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by a force majeure event. Contract Protection Tips: A force majeure event is defined as an unforeseeable circumstance that prevents someone from fulfilling a contract. Because many events arising on a construction project could be arguably unforeseen, it is imperative that the contract contain a Force Majeure provision. Examine all contracts for the applicable Force Majeure provision. Look for a clause like this:

§ 8.3.3 Any failure or omission by Owner or Contractor in performance of its obligation shall not be deemed a breach or create any liability for damages or other relief (other than additional time) if it arises from any cause beyond the reasonable control of such party, including, without limitation, acts of God, floods, fire, explosions, storms, earthquakes, acts of public enemy, war, terrorism, rebellion, insurrection, riot, sabotage, invasion, epidemic, quarantine, strikes, lockouts, labor disputes or other industrial disturbances, or any order or action by any governmental agency, or causes of similar nature.

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Reprinted courtesy of Denise Motta, Gordon Rees Scully Mansukhani, LLP
Ms. Motta may be contacted at dmotta@grsm.com

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Traub Lieberman Attorneys Lisa Rolle and Christopher Acosta Win Motion to Dismiss in Bronx County Trip and Fall

May 22, 2023 — Lisa M. Rolle & Christopher D. Acosta - Traub Lieberman
Traub Lieberman Partner Lisa Rolle and Associate Christopher Acosta won a motion to dismiss in a trip and fall accident complaint and cross-claim brought before the New York Supreme Court, Bronx County. The underlying accident allegedly occurred on the sidewalk abutting the subject premises, which is owned by the Property Owner and was leased to a Pest Control Company. The Property Owner brought a cross-claim against the Pest Control Company as a result of the initial complaint. Reprinted courtesy of Lisa M. Rolle, Traub Lieberman and Christopher D. Acosta, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Mr. Acosta may be contacted at cacosta@tlsslaw.com Read the full story... Read the court decision
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