Seattle Washington Building Expert Directory

Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant

April 03, 2019 — Gus Sara - The Subrogation Strategist
In Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty. In 2013, the building owner, Greg Dotson, began leasing a commercial building to Robert Youell for his tire business, Best One Giant Tire, Inc. (collectively, Youell). The lease agreement required that the landlord maintain fire and extended coverage insurance on the building and the leased premises. The lease also required the tenant to purchase fire and extended coverage insurance for its personal property. The lease did not mention subrogation. Dotson obtained a property insurance policy through Cincinnati Insurance. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

Updates to AIA Contract Applications

January 07, 2025 — Anand Gupta - Construction Law Zone Blog
The construction industry often relies on contract forms drafted by the American Institute of Architects (AIA). These AIA forms include agreements between owners, designers, consultants, contractors, subcontractors, and construction managers. Some prefer to use the forms in the stock form, but others prefer to modify the language to their benefit. These modifications can be made in Microsoft Word and uploaded into AIA’s current web-based system, ACD5, to create redlines against the standard AIA forms (Checked-Drafts) and final clean versions without the “DRAFT” watermarks. Law firms and clients keep repositories of these modified templates for future projects. A common issue with modifying documents offline in Microsoft Word and passing the documents back-and-forth between different email and document management systems is that the metadata of the forms becomes corrupted. AIA technical support then must reset the metadata, which takes hours or days. This delay can pose challenges to clients when they are up against a deadline. Read the court decision
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Reprinted courtesy of Anand Gupta, Robinson+Cole
Mr. Gupta may be contacted at agupta@rc.com

Coverage Found for Faulty Workmanship Damaging Other Property

January 06, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The district court found that under Illinois law, the damage caused by the insured's faulty workmanship to portions of building beyond the scope of its own work was covered under a CGL policy. Westfield Ins. Co. v. Nat'l Decorating Serv., 2015 U.S. Dist. LEXS 159140 (N.D. Ill. Nov. 25, 2015). 200 North Jefferson, LLC was the owner and developer of a 24- story condominium building. 200 North Jefferson retained as the general contractor McHugh Construction Co. McHugh Construction retained National Decorating Service, Inc. as the subcontractor to perform all painting work on the project. The Condominium Association sued 200 North Jefferson, McHugh Construction, MCZ/Jameson Development Group, LLC, National Decorating for faulty workmanship. The alleged damages included:(1) cracking of the exterior concrete walls, interior walls and ceilings; (2) significant leakage through the exterior concrete walls, balconies, and windows; (3) defects to the common elements of the building; and (4) damage to the interior ceilings, floors, interior painting, drywall and furniture in the units. 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

Buyer's Demolishing of Insured's Home Not Barred by Faulty Construction Exclusion

June 21, 2017 — Tred R. Eyerly - Insurance Law Hawaii
Loss of the insured's home caused by a renter who demolished the home was covered under the homeowner's policy. Fisher v. Garrison Prop. & Cas. Ins. Co., 2017 Idaho LEXIS 143 (Idaho May 26, 2017). The insured, Shammie L. Fisher, entered a Purchase Agreement to sell her home to Ron Reynoso. The purchase of the property was contingent upon Reynoso obtaining financing. Before completing the purchase, he would lease the property. The Agreement stated, "Buyer intends to make certain improvements to the property upon possession, with the intent to sell the property for a profit." Within two months of renting the property to Reynoso, Fisher learned that he had demolished the entire house down to the foundation. He then ceased work and left. Fisher made a claim under her policy, but Garrison Property and Casualty Insurance Company denied coverage based upon the exclusion for faulty, inadequate or defective work. When Fisher sued, the trial court granted summary judgment to Garrison. 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

Court Upholds Denial of Collapse Coverage Where Building Still Stands

October 02, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Michigan Court of Appeals affirmed the trial court's decision finding the policy's collapse coverage did not apply. Cmty. Garage v. Auto-Owners Ins. Co., 2018 Mich. App. LEXIS 2680 (Mich. Ct. App. June 19, 2018). The insured operated a truck repair business. In June 2016, the insured's place of business sustained damage due to failure of several trusses providing structural support to the building's roof. The failure was due to latent construction defects leading to an insufficient load bearing capacity. The roof began to sag while one of the walls bulged outward due to the sudden pressure overload. The insured hired a construction firm to install temporary shoring to support the roof and prevent further damage. All of the building's walls remained standing and, although the roof sagged, it also remained intact. However, the building could not be safely occupied until repairs were completed. 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

Deference Given To Procuring Public Agency Regarding Material Deviation

April 10, 2019 — David Adelstein - Florida Construction Legal Updates
Deference will be given to a procuring public agency in a bid protest, particularly when the issue involves whether a bid is non-responsive and constitutes a material deviation from the solicitation. You do not believe me? Perhaps you will after this holding in Biscayne Marine Partners, LLC v. City of Miami, Florida, 44 Fla.L.Weekly D467a (Fla. 3d DCA 2019): Consequently, no principle of law is clearly established…as to any obligation of the trial court (and, by analogy, an administrative hearing officer) [in a bid protest] to decide or to defer [whether a bid constitutes a material deviation from the solicitation]. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct. I do not know about you, but that last underlined sentence is pretty strong language regarding judicial deference! In this case, Miami (the procuring public agency) issued a Request for Proposals (RFP) for the redevelopment and lease of waterfront property, for the operation of a marina, boatyard, restaurant, wet slips, and a dry storage facility on the property. Miami issued five addenda to the RFP. There were three bidders. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

One Shot to Get It Right: Navigating the COVID-19 Vaccine in the Workplace

January 18, 2021 — Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren - Construction Executive
The Food and Drug Administration has granted Emergency Use Authorization for Pfizer and Moderna’s COVID-19 vaccines. As COVID-19 cases continue to rise, employers across all industries may be considering whether to adopt a vaccination policy requiring vaccination as a condition of working and/or accessing the workplace or jobsite. The FDA’s recent authorization of the COVID-19 vaccine raises several legal and practical issues that employers may wish to consider as they prepare for widespread distribution and availability of the vaccine in 2021. Mandating the COVID-19 Vaccine in the Workplace The Equal Employment Opportunity Commission recently issued guidance suggesting that employers may mandate that employees receive the COVID-19 vaccination, subject to certain limitations. The EEOC has taken the position that administration of the COVID-19 vaccine does not implicate the Americans with Disabilities Act (ADA) because administration of the vaccine is not a medical examination. Under the EEOC’s guidance, employers, regardless of the industry, may require that employees receive the COVID-19 vaccine without having to justify that the mandate is job related and consistent with business necessity. Beyond that, construction employers should be aware of numerous issues and risks associated with mandatory vaccine policies. Reprinted courtesy of Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Endorsement Excludes Replacement of Undamaged Property with Matching Materials

August 20, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The court approved the insurer's endorsement which stated the insured would not pay for undamaged property in order to match damaged property. Noonan v. Am. Family Mut. Ins. Co., 2019 U.S. App. LEXIS 15545 (May 24, 2019). After hail and wind damaged part of the roof in the insureds' home, American Family inspected the roof and determined that it had suffered $12,000 in damage. The insureds disputed this amount and demanded an appraisal to provide a binding estimate of the amount of loss. American Family asked the appraisers to divide their estimate into two categories - one for replacing damaged shingles and another for replacing undamaged shingles that would not match those needed to replace the damaged ones. The appraisers did not do so. They instead found that replacing the entire roof would cost $141,000 and noted there was a matching issue because alternative products did not match the current shingles on the roof. Of the $141,000 needed to replace the entire roof, American Family estimated that $87,232.98 was due to the costs of matching. The insureds sued. The district court remanded the case to the appraisers to clarify the award by differentiating the costs attributable to the actual roof damage from those attributable to shingle matching. The appraisers clarified the award and reported that actual damages were $66,619, meaning that $74,381 was attributable to matching. American Family then paid the actual damages, less the deductible, but refused to pay the rest. 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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