Seattle Washington Building Expert Directory

Don’t Fall in Trap of Buying the Cheapest Insurance Policy as it May be Bad for Your Business Risks and Needs

March 25, 2024 — David Adelstein - Florida Construction Legal Updates
Don’t fall in the trap of buying the cheapest insurance policy. It will come and bite you in the butt big time! Consult with an insurance broker that understands construction and, importantly, your specific industry, to provide you coverage within your industry. Otherwise, you’ll be paying for a policy that may (i) not be a good policy, and (ii) may provide you minimal to no value for your industry’s RISKS and NEEDS when factoring in exclusions. When procuring insurance, think of the old adage “penny wise and pound foolish,” and don’t make decisions that fit within this adage! The recent decision in Nautilus Ins. Co. v. Pinnacle Engineering & Development, Inc., 2024 WL 940527 (S.D. Fla. 2024) serves as an example. Here, a subcontractor was hired by a general contractor to perform underground utility work for a townhome development which consisted of 57 townhome units included in 18 detached structures. The subcontractor’s underground work was defective which caused damage to the property’s water line, sewer system, plumbing lines, pavers, etc. The general contractor was liable to the owner for this defective work. Although the general contractor was an additional insured under the subcontractor’s commercial general liability (CGL) policy, the subcontractor’s CGL carrier denied the duty to defend and initiated an insurance coverage lawsuit. Motions for summary judgment were filed. 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

Do Not File a Miller Act Payment Bond Lawsuit After the One-Year Statute of Limitations

November 01, 2022 — David Adelstein - Florida Construction Legal Updates
Under the Miller Act, a claim against a Miller Act payment bond must be commenced “no later than one year after the date on which the last of the labor was performed or material was supplied by the person bringing the action.” 40 U.S.C. s. 3133(b)(4). Stated another way, a claimant must file its lawsuit against the Miller Act payment bond within one year from its final furnishing on the project. Filing a lawsuit too late, i.e., outside of the one-year statute of limitations, will be fatal to a Miller Act payment bond claim. This was the outcome in Diamond Services Corp. v. Travelers Casualty & Surety Company of America, 2022 WL 4990416 (5th Cir. 2022) where a claimant filed a Miller Act payment bond lawsuit four days late. That four days proved to be fatal to its Miller Act payment bond claim and lawsuit. Do not let this happen to you! In Diamond Services Corp., the claimant submitted a claim to the Miller Act payment bond surety. The surety issued a claim form to the claimant that requested additional information. The claimant returned the surety’s claim form. The surety denied the claim a year and a couple of days after the claimant’s final furnishing. The claimant immediately filed its payment bond lawsuit four days after the year expired. The claimant argued that the surety should be equitably estopped from asserting the statute of limitations in light of the surety’s letter requesting additional information. (The claimant was basically arguing that the statute of limitations should be equitably tolled.) The trial court dismissed the Miller Act payment bond claim finding it was barred by the one-year statute of limitations and that equitable estoppel did not apply. 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

Hawaii Supreme Court Tackles "Other Insurance" Issues

February 25, 2014 — Tred Eyerly – Insurance Law Hawaii
Responding to four certified questions from the Ninth Circuit, the Hawaii Supreme Court addressed various issues raised by competing "other insurance" provisions in two CGL policies. Nautilus Ins. Co. v. Lexington Ins. Co., 2014 Haw. LEXIS 59 (Haw. Feb. 13, 2014). Coverage for a development on Maui was at issue. The developer, VP & PK (ML) LLC, was insured by Lexington. The other insurance provision in Lexington's policy provided it was excess over "any other primary insurance available to you covering liability for damages arising out of the premises . . . for which you have been added as an additional insured." Kila Kila Construction was one of VP & PK's subcontractors. Kika Kila was not an additional insured under Lexington's policy. Kila Kila had its own CGL policy with Nautilus. The Nautilus other insurance clause stated the insurance was excess over "any other primary insurance available to you covering liability arising out of the premises or operations for which you ahve been added as an additional insured." An endorsement added VP & PK as an additional insured, but only for liability arising out of Kila Kila's negligence. 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

Emotional Distress Damages Not Distinct from “Annoyance and Discomfort” Damages in Case Arising from 2007 California Wildfires

February 16, 2017 — Kirsten Lee Price & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Hensley v. San Diego Gas & Elec. Co., (No. D070259, filed 1/31/17), the California Court of Appeal for the Fourth Appellate District held that emotional distress damages are available on claims for trespass and nuisance as part of “annoyance and discomfort” damages. In Hensley, plaintiffs sustained fire damage to their home and property during the 2007 California wildfires. The Hensleys were forced to evacuate as the fires advanced. Although their home was not completely destroyed, it sustained significant damage and they were not able to return home permanently for nearly two months. Thereafter, the Hensleys filed suit against San Diego Gas and Electric Company (“SDG&E”) asserting causes of action for trespass and nuisance, among others. Mr. Hensley, who had suffered from Crohn’s disease since 1991, further claimed that as a result of the stress from the fire, he experienced a substantial increase in his symptoms and his treating physician opined that “beyond a measure of reasonable medical certainty... the stress created by the 2007 San Diego fires caused an increase of [Mr. Hensley’s] disease activity, necessitating frequent visits, numerous therapies, and at least two surgeries since the incident.” SDGE moved, in limine, to exclude evidence of Mr. Hensley’s asserted emotional distress damages arguing he was not legally entitled to recover them under theories of trespass and nuisance. The trial court agreed and excluded all evidence of such damages. Reprinted courtesy of Kirsten Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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While Starts Fall, Builder Confidence and Permits are on the Rise

June 17, 2015 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ (NAHB) Eye on Housing reported that “the NAHB/Wells Fargo Housing Market Index and the expansion of housing permits, suggest more growth ahead.” While the Census Bureau and HUD reported that housing starts in May declined 11.1%, Eye on Housing points to a positive sign in that building permits were up 11.8% in the same month. Read the court decision
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School for Building Trades Helps Fill Need for Skilled Workers

November 06, 2013 — CDJ STAFF
The homebuilding crunch is ending, but many of the people who worked at building homes when times were good have found work in other industries, leaving homebuilders looking for skilled labor. The Enzweiler Apprentice Training Program in Kentucky is trying to fill that need. “We’re set to graduate over 100 students this year, which is our largest graduating class on record,” said Brian Miller, the executive director of the Northern Kentucky HBA. Although the class isn’t graduating until next May, many of them already have jobs. “Ninety-five percent of our folks are employed when they leave us,” said Thomas Napier, director of the training program. Part of the curriculum involves gaining real-world experience, so the students work full time during the day and take classes at night. Read the court decision
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Supreme Court of New Jersey Reviews Statutes of Limitation and the Discovery Rule in Construction Defect Cases

July 18, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
Robert Neff Jr. of Wilson Elser analyzed the recent case, Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 2017 N.J. Lexis 845, 169 A.3d 473 (Supreme Court of New Jersey, September 14, 2017), and states that this ruling “gives defendants the ability to defend against the assertion that the statute of limitations was tolled until the most recent owner (and plaintiff) discovered the cause of action.” Neff concludes that a statute of limitations test needs to be conducted at the beginning of each case: “In Palisades, the motions to dismiss based on the statute of limitations were filed at the conclusion of all discovery. While an initial analysis might yield the conclusion that certain discovery will be needed to ascertain the appropriate accrual date (or dates, in the case of multiple defendants), counsel will then know what discovery to seek during the discovery period.” Read the court decision
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Note on First-Party and Third-Party Spoliation of Evidence Claims

October 30, 2018 — David Adelstein - Florida Construction Legal Updates
In an earlier posting, I talked about spoliation of evidence. This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence. This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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