Seattle Washington Building Expert Directory

Risk Management and Contracting after Hurricane Irma: Suggestions to Avoid a Second Disaster

September 14, 2017 — Stephen H. Reisman, Gary M. Stein & Adam P. Handfinger – Peckar & Abramson, P.C.
Peckar & Abramson attorneys have assisted contractors in the immediate aftermath of several Hurricanes, including Andrew in 1992, Wilma in 2005, Ike in 2008, and Sandy in 2012. Based on this experience, we offer some post-storm strategies for contracting and risk management in three situations:

Ongoing projects in the area directly impacted by the storm;
Projects remote from the storm-impacted areas, but which may be affected by material or labor shortages; and
Requests for assistance in recovery/clean-up/rebuild eff orts, which would be new projects.

Projects Directly Impacted By Hurricane Irma: 1. Immediately review each Owner contract to determine what notices are required for delays and/or extra costs arising from the storm. Contract notice requirements and time limits vary, whether for force majeure or other similar time and compensation rights. There is no effective one-size-fits-all solution. While the initial notice letters will likely look very similar, you should make sure that each is sent as required by the contract. Check each contract’s requirements for particulars regarding content, the form of delivery, and parties and individuals designated to receive the letters as well as carbon copy recipients like the architect. Follow-up notices and time periods differ from contract to contract and should be tracked so that if, for example, a follow-up notice is required in a week per the contract terms, it is tracked to ensure compliance. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Stephen H. Reisman, Gary M. Stein and Adam P. Handfinger Mr. Reisman may be contacted at sreisman@pecklaw.com Mr. Stein may be contacted at gstein@pecklaw.com Mr. Handfinger may be contacted at ahandfinger@pecklaw.com Read the court decision
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Supreme Court of Kentucky Holds Plaintiff Can Recover for Stigma Damages in Addition to Repair Costs Resulting From Property Damage

August 15, 2018 — Gus Sara - The Subrogation Strategist
In Muncie v. Wiesemann, 2018 K.Y. LEXIS 257, the Supreme Court of Kentucky considered whether stigma damages[1] in a property casualty case are recoverable in addition to the costs incurred to remediate the actual damage. The court held that stigma damages are recoverable in addition to repair costs, but the total of the stigma damages and repair costs cannot exceed the diminution in the fair market value of the property. The court’s decision establishes that if the repair costs are insufficient to make the plaintiff whole, a recovery for stigma damages up to the amount of the diminution in the market value of the home is appropriate. Appellants Cindy and Jim Muncie incurred significant property damage to their home as a result of an oil leak originating from a neighboring property owned by the Estate of Martha Magel. In 2011, Auto Owners Insurance Company (Auto Owners), the liability carrier for the Estate’s testatrix, Patricia Weisman, filed an impleader complaint in federal court to discharge its obligation to settle the third-party liability claims on behalf of Ms. Weisman. Auto Owners reached a settlement with the Muncies for $60,000 which represented the remediation costs for the actual damage to the property. The settlement release reserved the Muncies’ right to pursue a claim for stigma damages associated with the oil leak. 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

Asbestos Exclusion Bars Coverage

February 05, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The broad asbestos exclusion found in a Business Owners policy barred coverage for the insured after it sold a building in which asbestos was discovered. Phillips v. Parmelee, 2013 Wisc. LEXIS 747 (Dec. 27, 2013). Prior to purchasing an apartment building, the insured had the building inspected. The report indicated that the building's heating supply ducts likely contained asbestos. The insured then sought to sell the building. The Real Estate Condition Report stated the insured was not aware of "asbestos or asbestos-containing materials on the premises." The buyers purchased the property. A contractor cut through asbestos-wrapped ducts, dispersing asbestos throughout the building. The buyers sued the insured for breach of contract/warranty and negligence in failing to adequately disclose defective conditions including asbestos. 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

Illinois Insureds are Contesting One Carrier's Universal Denial to Covid-19 Losses

May 11, 2020 — Anna M. Perry - Saxe Doernberger & Vita
In response to the large number of COVID-19-related losses that businesses are experiencing, insurers have begun issuing statements informing their insureds of whether their policies will respond to the losses, and if so, what coverage will be afforded. Insurers cannot take a “one-size-fits-all” approach to the COVID-19 losses because, besides factual differences, the losses are occurring within all fifty states which means 50 different state law interpretations will apply. Recently, on March 27, 2020, a number of restaurants and movie theaters located in and around Chicago (the “Insureds”) filed a declaratory judgement action, titled Big Onion Tavern Group, LLC et al. v. Society Insurance, Inc., against their property insurance carrier, Society Insurance, Inc. (“Society”), seeking coverage for business interruption resulting from the shutdown order issued by the governor of Illinois. The suit alleges that Society improperly denied their business interruption claims by using a boiler plate denial. The denial issued by Society is allegedly used for all COVID-19 losses regardless of the applicable jurisdiction’s interpretation of the policy language and the specific coverage purchased by the insured. Further, in its denial, Society takes the position that any loss related to a government-issued closure order is uncovered, even though the Insureds specifically purchased business interruption coverage and their policies did not contain an exclusion for losses caused by viruses. Read the court decision
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Reprinted courtesy of Anna M. Perry, Saxe Doernberger & Vita
Ms. Perry may be contacted at amp@sdvlaw.com

Cherokee Nation Wins Summary Judgment in COVID-19 Business Interruption Claim

February 01, 2021 — Sergio F. Oehninger, Geoffrey B. Fehling & Matt Revis - Hunton Insurance Recovery Blog
In a resounding victory for policyholders, an Oklahoma state court granted partial summary judgment for the Cherokee Nation in its COVID-19 business interruption claim. The Cherokee Nation is seeking coverage for losses caused by the pandemic—specifically, the inability to use numerous tribal businesses and services for their intended purpose. Based on the “all risks” nature of the policy and the fortuitous nature of its loss, the Cherokee Nation sought a partial summary judgment ruling that the policies afford business interruption coverage for COVID-19-related losses. The policy provided coverage for “all risk of direct physical loss or damage,” which the Cherokee Nation contended was triggered when the property was “rendered unusable for its intended purpose.” In support of this view, and consistent with established insurance policy interpretation principles, such as providing meaning to every term and reading the policy as a whole, the Cherokee Nation argued that a distinction must exist between “physical loss” and “physical damage.” This distinction demands an interpretation supporting the “intended purpose” reading of the policy language. Thus, the physical presence of COVID-19 depriving the Cherokee Nation of the use of covered property for its intended purpose triggered a covered loss. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Matt Revis, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Comply with your Insurance Policy's Conditions Precedent (Post-Loss Obligations)

May 31, 2021 — David Adelstein - Florida Construction Legal Updates
I am of the opinion that if your property insurer requests a sworn proof of loss, furnish one with the assistance of counsel (preferably). Ignoring the insurer’s request or refusing to comply with insurer’s request is NOT value-added; it is simply placing you at a disadvantage based on the insurer’s argument that you, as the insured, materially breached the policy. I generally find no value having to confront this expected argument. Instead, I find value making an effort to comply with post-loss obligations including the insurer’s request to submit a sworn proof of loss. Working with counsel can help you comply with post-loss obligations (conditions precedent) while not weakening the value or merits of your claim. By way of example, in Edwards v. Safepoint Ins. Co., 46 Fla. L. Weekly D1086a (Fla. 4th DCA 2021), the insured did not provide its property insurer with the requested sworn proof of loss. The insurer moved for summary judgment that the insured’s failure to submit the sworn proof of loss was a material breach of the policy that rendered the policy ineffective. The trial court agreed and granted summary judgment. The Fourth District Court of Appeal affirmed explaining “[a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Edwards, supra, quoting Haiman v. Federal Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). 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

Real Estate & Construction News Roundup (10/18/23) – Zillow’s New Pilot Program, Production Begins at Solar Panel Plant in Georgia, and More Diversity on Contracts for Buffalo Bills Stadium

November 27, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, Netflix announces plans to open brick-and-mortar locations, NYU develops a way to examine buildings using drones, robots and AI, distressed U.S. commercial real estate hits a 10-year high, and more!

Zillow is piloting a new program in Arizona offering new home buyers thousands of dollars to help them with their down payments. (Oliver Staley, TIME)
After an initial backlash regarding workforce diversity, a Gilbane-Turner joint venture has given 40% of contracts on the new Buffalo Bills’ stadium to minority-, women- or service-disabled veteran-owned companies. (Joe Bousquin, Construction Dive)
To ensure easier compliance with New York City’s Local Law 97, researchers at NYU are developing a method using drones, robots and AI to examine building exteriors for leaks. (Nish Amarnath, Construction Dive)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Alleged Negligent Misrepresentation on Condition of Home is Not an Occurrence Causing Property Damage

December 17, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court found that even if the insured's negligent misrepresentations constituted an accident, the disclosures did not cause physical damage to the property. Wood v. USAA Cas. Ins. Co., 2024 U.S. Dist. LEXIS 180624 (D. S.C. Sept. 12, 2024). The insured, Clinton Wood, purchased a townhome in January 2014. After the purchase, Wood experienced leaks and significant water intrusion, as did other townhome owners in the same development. Wood and the other owners retained an engineer to evaluate the cause of the water damage. The engineer determined that the water intrusion was caused by defects in the design and construction of the residence. The engineer told Wood that the proposed repairs would not adequately address and resolve the water intrusion and leaks, and that the problems would continue even if repairs were made. 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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