SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Do Not Forfeit Coverage Under Your Property Insurance Policy

February 22, 2021 — David Adelstein - Florida Construction Legal Updates
If you have read prior articles (see here and here as an example), then you know that when it comes to first-party property insurance policies, an insured must comply with post-loss obligations in the policy. Failure to comply with a post-loss obligation gives the insurer the argument that the insured materially breached the policy and, therefore, forfeited rights to coverage. Naturally, this is avoidable by ensuring post-loss obligations are complied with, ideally under the guidance of counsel and qualified public adjusters to ensure your rights are being preserved and maximized.

[W]hen an insurer has alleged, as an affirmative defense to coverage, and thereafter has subsequently established, that an insured has failed to substantially comply with a contractually mandated post-loss obligation, prejudice to the insurer from the insured’s material breach is presumed, and the burden then shifts to the insured to show that any breach of post-loss obligations did not prejudice the insurer. Universal Property & Casualty Ins. Co. v. Horne, 46 Fla.L.Weekly D201b (Fla. 3d DCA 2021) quoting American Integrity Ins. Co. v. Estrada, 276 So.3d 905, 916 (Fla. 3d DCA 2019).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Anti-Concurrent Causation Endorsements in CGL Insurance Policies: A Word of Caution

August 29, 2022 — David M. McLain – Colorado Construction Litigation
While I have not performed exhaustive research into the origin of anti-concurrent causation (“ACC”) endorsements on insurance policies, or how or when they migrated from first-party property policies to commercial general liability (“CGL”) policies, they have done so. The result for Colorado’s construction professionals may rear its ugly head as an unwelcome and surprise outright declination of coverage for construction defect claims. ACC endorsements state that if there are two causes of damage: one of which is covered by a policy and one of which is not, the carrier can invoke the ACC endorsement to disclaim coverage for all of the damage. An exemplar ACC endorsement is ISO Form CG 21 67, entitled “Fungi or Bacteria Exclusion.” Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

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Just When You Thought General Contractors Were Necessary Parties. . .

November 30, 2020 — Christopher G. Hill - Construction Law Musings
Did you think that a subcontractor had to name a general contractor in a mechanic’s lien suit? I did. Did you think that nothing about this changed in the case where a Virginia mechanic’s lien was “bonded off” pursuant to Va. Code Section 43-71? I did. Well, a recent Virginia Supreme Court case, Synchronized Construction Services Inc. v. Prav Lodging LLC, seems to at least create some doubt as to whether the a general contractor is a “necessary” party to a lawsuit by a subcontractor in the case where a bond is posted for release of a mechanic’s lien. In Prav Lodging, the facts were a bit unusual. The day after the mechanic’s lien was recorded by Synchronized Construction Services, Inc. (“Synchronized”) the construction manager, Paris Development Group, the construction manager and de facto general contractor, went out of business. Despite this fact, and after the lien was bonded off, Synchronized sued to enforce the lien and for breach of contract against Paris. The wrinkle here is that Synchronized was unable to serve several defendants, among them Paris, within one year of filing suit as required by Virginia statute. In the Circuit Court, the financing bank moved to dismiss the suit for failure to serve necessary parties. The Circuit Court dismissed the breach of contract count but refused to dismiss the mechanic’s lien count on this basis. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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You Don’t Have To Be a Consumer to Assert a FDUTPA Claim

February 22, 2018 — David Adelstein – Florida Construction Legal Updates
A few years ago, the Fourth District Court of Florida rendered an opinion in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So.3d 164 (Fla. 4th DCA 2015) regarding Florida’s Deceptive and Unfair Trade Practices Act (referred as to “FDUTPA”) (Florida Statute s. 501.201et seq.). This case held that a party can assert a FDUTPA claim even though the party is NOT a consumer. The party still has to prove there was an injury to consumers in filing such claim, but again, the party can bring the claim even though it is NOT a consumer. Caribbean Cruise Line, 169 So.3d at 169 (“[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.”).See also Cemex Construction Materials Florida, LLC v. Armstrong World Industries, Inc., 2018 WL 905752, *15 (M.D.Fla 2018) (relying on Caribbean Cruise Line to find that even though the plaintiff does not need to be a consumer, the plaintiff still must prove an injury to consumers to satisfy elements of a FDUTPA claim). Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Verdict In Favor Of Insured Homeowner Reversed For Improper Jury Instructions

October 23, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed the jury verdict in favor of the homeowners based upon improper instructions purporting to impose a duty to adjust the claim and how to construe a contract. Citizens Prop. Ins. Corp. v Mendoza, 2018 Fla. App. LEXIS 9497 (Fla. Ct. App. July 5, 2018). The insureds incurred water damage to their home caused by a water heater leak. After a claim was filed, the insurer sent an adjuster to investigate the claim. The insurer denied the claim due to an exclusion for constant or repeated seepage or leakage. At trial, the insurer offered testimony that the leak was a continued and repeated seepage of water over a long period of time, which was excluded under the policy, and not a sudden and accidental discharge of water, which would have been covered. 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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Affordable Housing, Military Contracts and Mars: 3D Printing Construction Potential Builds

September 05, 2022 — Adam J. Weaver & Lindsey Mitchell - Gravel2Gavel Construction & Real Estate Law Blog
The 3D printing construction market is likely on the cusp of a boom. This unique construction method boasts many advantages in comparison to traditional forms of construction. Projects can be completed more quickly and at a fraction of the cost, given fewer laborers are required and the materials used are much cheaper. Though market growth stalled during the COVID-19 pandemic, industry leaders expect 3D printing construction to experience exponential growth in the coming years. While 3D printing technology has risen in popularity and prominence in the past couple of decades, it is only recently that 3D printing companies have begun making strides in the construction industry. Critical to the construction process is the software that is used to create and model the planned structure. A software program turns a building’s blueprint into code that then dictates the movement of a 3D printer on the construction site. After a concrete-like mix is loaded into the printer, the printer begins to build the walls by laying one cylindrical layer of concrete at a time, in accordance with the blueprint. There is no one-size-fits-all approach in 3D printing construction: some companies print the core structure as well as the roof and floor of the structure, while others print only the core and shell and install those portions separately using traditional methods and materials. Reprinted courtesy of Adam J. Weaver, Pillsbury and Lindsey Mitchell, Pillsbury Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Read the court decision
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New York Preserves Subrogation Rights

September 06, 2023 — Lian Skaf - The Subrogation Strategist
The insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the investigation process is determining what rights the insured has. Whether or not the insured can settle with the tortfeasor and that whether the settlement would also apply to the subrogated carrier is a question the Supreme Court of New York, a trial court, recently addressed. In Utica First Ins. Co. v. Homeport I LLC, et al., No. 150448/2022, 2023 N.Y. Misc. LEXIS 3087 (N.Y. Sup. Ct.), the plaintiff insurance carrier’s insured, SI Waterfront Management Inc. (SI Waterfront), owned and operated a restaurant called Wynwood at 24 Navy Pier Court in Staten Island, New York. The owner of the property was Homeport I LLC (Homeport). Significant construction work pertaining to plumbing and draining lines at the property was done by Ironstate Holdings, LLC (Ironstate), the plumbing portion of which was conducted by subcontractor Claire Construction Corp. (Claire). As a result of the construction work, on June 8, 2021, SI Waterfront allegedly sustained property damage from flooding. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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'Taylor Swift Is an Economic Phenomenon': CE's Q1 2024 Economic Update and Forecast

April 29, 2024 — Grace Calengor - Construction Executive

On March 27, Construction Executive presented its "2024 Q1 Economic Update and Forecast," hosted by ABC Chief Economist Anirban Basu. If you've attended previous versions of this webinar, you're familiar with Basu’s pragmatic approach to the economics of the construction industry and his penchant for predicting recession. But this quarter, he opted for an almost-optimistic approach and hinted at walking back his thoughts on recession. Read the most quotable moments, new poll results and top takeaways from the presentation below.

POLL RESULTS: Q1 2024 vs. Q4 2023 Poll 1: Which of these is the leading challenge for your company today?

Supply chain and/or materials issues

Skills/worker shortage

Insufficient demand for construction services

Availability of financing for projects/project work

None of the above

December 2023	March 2024
10%	7%
57%	60%
11%	11%
19%	17%
3%	6%

Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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