SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Wildfire Insurance Coverage Series, Part 5: Valuation of Loss, Sublimits, and Amount of Potential Recovery

July 25, 2022 — Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery Blog
Insurance policies provide different levels of insurance coverage and even if the amount purchased was adequate at one time, developments over time (e.g., inflation, upgrades, regulatory changes and surge pricing) may leave the policyholder underinsured. In this post in the Blog’s Wildfire Insurance Coverage Series, we emphasize the need for policyholders to take a close look at the policy’s terms to select the right type and amount of coverage for a potential loss. Various types of coverage are available and there has been extensive litigation concerning the amount of coverage provided by one policy form or another. For example, the policyholder may have purchased market value coverage (the value of the house at the time of the wildfire), replacement coverage subject to a policy limits cap, guaranteed replacement cost coverage, or some variation on the theme. While the property may be properly valued when the insurance is purchased, it may become undervalued at the time of loss due to factors like inflation or home improvements that were not disclosed to the insurer. And, however generous the limits may be when the policy is procured, as one court discussed, it may be insufficient when “surge pricing” occurs after a wildfire.[1] Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the court decision
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Unlocking the Hidden Power of Zoning, for Good or Bad

October 21, 2024 — David Zipper - Bloomberg
No longer dismissed as an insomnia-curing corner of local governance, zoning is having a moment. It’s at the heart of the pro-housing Yes In My Backyard — or YIMBY — movement, which seeks to reform the rules that mandate the construction of single-family homes across much of the US, and the arcane details of land use policy are being debated in national outlets and city councils across the US. In much of this discourse, zoning is the clear villain, blamed for feeding societal ills ranging from housing costs to racial discrimination to greenhouse gas emissions. In her new book Key to the City, Sara Bronin examines zoning with a critical but sympathetic eye. Bronin brings deep experience to the topic, having studied zoning as an architect and lawyer before overhauling the land use regulations of Hartford, Connecticut. A professor of architecture and planning at Cornell University (and an occasional Bloomberg CityLab contributor), she is currently on leave to chair the federal Advisory Council on Historic Preservation. Read the court decision
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Reprinted courtesy of David Zipper, Bloomberg

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Replevin Actions: What You Should Know

November 08, 2021 — Craig H. O'Neill - White and Williams LLP
A contractor client of White and Williams recently found itself in a prickly situation. They had default terminated a subcontractor on a major commercial project and withheld payment to that subcontractor on an outstanding invoice as permitted under the terms of the subcontract until the project was completed. Clearly irate over being terminated, the subcontractor walked-off of the project with thousands of dollars’ worth of project materials and equipment that had been paid for by the owner. While on some projects this may amount to nothing more than an annoyance or inconvenience, in this case it was a significant problem because some of the wrongfully removed materials were custom manufactured overseas and not easily replaceable. The client therefore needed to take immediate action to retrieve the stolen materials so that the project would not be delayed. Specifically, it needed to file a replevin action against the subcontractor. A replevin action is a little known but powerful area of the law. In its simplest terms, replevin is a procedure whereby seized goods may be provisionally restored to their owner pending the outcome of an action to determine the rights of the parties concerned. The requirements of a replevin action differ by jurisdiction. For example, in Pennsylvania, the Rules of Civil Procedure devote an entire section to replevin actions and spell out in precise detail the steps that must be taken. While you should be sure to strictly comply with the rules in your jurisdiction, here are a few general points to keep in mind:

• Where to File: A replevin action is typically commenced by filing a complaint in the appropriate jurisdiction. Generally speaking, it is best to file the action in the jurisdiction where the improperly seized materials are being held. If that location is unknown, you can also typically file the action in the jurisdiction where the project is located.

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Reprinted courtesy of Craig H. O'Neill, White and Williams LLP
Mr. O'Neill may be contacted at oneillc@whiteandwilliams.com

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Corporate Transparency Act’s Impact on Real Estate: Reporting Companies, Exemptions and Beneficial Ownership Reporting (webinar)

December 04, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
On October 23, 2023, colleague Andrew Weiner and Kevin Gaunt, counsel at Hunton Andrews Kurth, examined the Corporate Transparency Act (CTA), effective Jan. 1, 2024, and its impact on real estate entities and transactions, including who is considered a reporting company subject to new beneficial ownership information (BOI) reporting requirements and whether an exemption applies. The panel also discussed certain state laws that impose similar reporting requirements as the CTA and described best practices for real estate counsel to assist their clients with preparing for the CTA’s implementation and ongoing compliance. The panel also reviewed other important considerations, including:

1. Which real estate entities will likely be most affected by the CTA’s implementation and why?
2. What exemptions may apply?
3. How will the CTA’s reporting requirements affect real estate transactions for lenders and investors/buyers?
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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team


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Battle of “Other Insurance” Clauses

March 23, 2011 — Tred R. Eyerly


The New York Court of Appeals considered the impact of competing “other insurance” provisions located in both a CGL policy and a D&O policy. See Fieldston Property Owners Assoc., Inc. v. Hermitage Ins. Co., Inv., 2011 N.Y. LEXIS 254 (N.Y. Feb. 24, 2011).



In the underlying case, Fieldston’s officers were charged with making false statements and fraudulent claims with respect to a customer's right to access its property from adjacent streets. Suit was eventually filed against Fieldston and its officers, alleging several causes of action including injurious falsehood. Damages were sought.



Fieldston’s CGL policy was issued by Hermitage. The “other insurance” provision stated, “If other valid and collectible insurance is available to the insured for a loss we cover . . . our obligations are limited,” but also stated it would share with all other insurance as a primary policy.

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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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Construction Defect Not an Occurrence in Ohio

November 07, 2012 — CDJ STAFF
The Ohio Supreme Court has concluded that claims of defective construction or workmanship are not an occurrence under a general liability policy. The court looked at appellate decisions and concluded that CGL policies are not intended to insure against risks under the control and management of the insured. These risks should instead be mitigated with performance bonds. The question was raised in the case Westfield Ins. Co. v. Custom Agri Systems, Inc. The Sixth District Court of Ohio concluded it was an “open question under Ohio law whether a CGL policy covers defective construction claims.” Westfield filed a motion, granted by the Sixth Circuit, to certify the question to the state Supreme Court. The Sixth Court additionally found that the contractual liability exclusion barred coverage in the case, issues a summary judgment to Westfield. Read the court decision
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Nevada Lawmakers Had Private Meetings on Construction Defects

February 21, 2013 — CDJ STAFF
Both Democratic and Republican members of the Nevada legislature had closed door meetings with representatives of the construction industry. Democratic lawmakers also met with the other side of the discussion over construction defect laws, lobbyists representing trial lawyers. When asked by the Las Vegas Sun why this was done in private meetings instead of a public hearing, Speaker Marilyn Kirkpatrick didn’t have an answer, other than that “everyone in the building did it yesterday.” The meetings were described as briefings on general policy issues, offering legislators a chance to ask questions. The Sun notes that under Nevada’s open meeting law, government agencies would not be allowed to do this in a closed meeting, but that the legislature exempted itself from the law. 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

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