Seattle Washington Building Expert Directory

Giving Insurance Carrier Prompt Notice of Claim to Avoid “Untimely Notice” Defense

June 12, 2023 — David Adelstein - Florida Construction Legal Updates
When it comes to giving your insurance carrier notice of claim, I am an advocate of providing that notice as soon as possible, i.e., prompt notice. The reason is to take away the carrier’s argument to deny coverage because you, as the insured, failed to provide it with prompt notice—the “untimely notice” defense. It doesn’t matter whether it is a first party property insurance claim or third-party liability policy claim, provide notice as soon as reasonably possible to take away that “untimely notice” defense. The “untimely notice” defense was the issue in Benson v. Privilege Underwriters Reciprocal Exchange, 48 Fla.L.Weekly D1085a (Fla. 6th DCA 2023) dealing with a first party property insurance policy. In this case, eighteen months after Hurricane Irma, the plaintiff noticed a smell and observed brown stains on walls and ceiling in his home. The plaintiff called roofing companies to inspect the damage and perform certain repairs. However, the plaintiff still noticed the smell so he called a company to test and remediate mold. The plaintiff, then, contacted his property insurer with numerous claims relative to the leaks and damage. Although there was an initial property insurance payment made, the carrier ultimately denied coverage for subsequent claims stating that “the late notice of the claim and the prior repairs to the roof substantially prejudiced its ability to complete an inspection of [plaintiff’s] property to evaluate the claim.” Benson, supra. 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

State Farm Unsuccessful In Seeking Dismissal of Qui Tam Case

January 26, 2017 — Tred R. Eyerly – Insurance Law Hawaii
In an insurance related case, the United States Supreme Court affirmed the Fifth Circuit's decision that State Farm was not entitled to a dismissal of a qui tam case involving its claims-handling after Hurricane Katrina. State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, ___ U.S. ___, 137 S. Ct. 436 (2016). Before Katrina, State Farm issued two types of policies to homeowners: (1) Federal Government-back flood policies and (2) its own general homeowner policies. After Hurricane Katrina, State Farm's policies were responsible for wind damage, and the government policies were responsible for flood damage. Therefore, it was in State Farm's interest to classify hurricane damage as flood-related. 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

New York Climate Mobilization Act Update: Reducing Carbon Emissions and Funding Solutions

August 30, 2021 — Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog
In our June 16 CMA Update, we discussed how the New York City Climate Mobilization Act (CMA) will affect building owners and the market for CMBS mortgage loans (loans pooled and resold as commercial mortgage-backed securities). (For more information on C-PACE financing, see Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City.) In this update, we will outline some of the funding solutions that are available to New York City building owners looking to retrofit their buildings in order to comply with the CMA’s requirements. Funding Solutions for Covered Building Owners The cost of retrofitting buildings to incorporate energy efficient features and to achieve compliance with the CMA can be daunting. Read the court decision
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Reprinted courtesy of Caroline A. Harcourt, Pillsbury
Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com

Bert L. Howe & Associates Returns as a Sponsor at the 30th Annual Construction Law Conference in San Antonio

January 13, 2017 — Don MacGregor - Bert L. Howe & Associates, Inc.
Bert L. Howe & Associates, Inc. is proud to join with the Texas Institute of CLE, and return for the third year as a sponsor and exhibitor at the 30th Annual Construction Law Conference to be held March 2nd & 3rd, 2017 at the La Cantera Resort and Spa in San Antonio. With offices in San Antonio and Houston serving all of Texas, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors. BHA’s experience covers the full range of construction and construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well. As the litigation climate in Texas continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Texas, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results. To-date, we have participated in the successful defense of claims involving thousands homes here in Texas alone. For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA. For your convenience, here is a link to the information page for the 30th Annual Construction Law Conference: https://www.clesolutions.com/store.aspx?categoryid=2 Read the court decision
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Reprinted courtesy of Don MacGregor, Bert L. Howe & Associates, Inc.
Mr. MacGregor may be contacted at dmac@berthowe.com

Withdrawal Liability? Read your CBA

July 10, 2018 — Wally Zimolong – Supplemental Conditions
Withdrawal liability is a huge issue facing unionized employers. According to Bloomberg, 93% of the Top 200 largest pension plans are underfunded by a combined $382 billion. Contractors that withdraw from a multi-employer pension plan can face hundreds of thousands or millions of dollars in assessed withdrawal liability. However, employers may be able to avoid that liability, plus the legal and consulting fees to fight it, by simply reading their collective bargaining agreement. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Being deposed—not just for dictators! Depositions in the construction lawsuit (Law & Order: Hard Hat files Part 5)

January 17, 2013 — Melissa Dewey Brumback, Construction Law in North Carolina
My husband always finds it amusing when I talk about going “to depose” somebody. He wants to know just exactly what sort of coup d’etat I am planning. Despite the awkward language, the deposition process is not supposed to feel like water boarding, although if you don’t know what to expect it can be more miserable than truly necessary. Simply put, a deposition is a chance for the other side’s lawyer to make you answer a whole bunch of questions (some relevant, some seemingly irrelevant) under oath. That is, first you put your hand on the Bible and swear (or affirm) to tell the truth, the whole truth, and nothing but the truth. In reality, depositions serve a variety of purposes– they educate the lawyers about the facts of the case, they give a preview of how you would “present” to a jury (i.e., would a jury like and believe you?), and they can be used to position a case for certain later dispositive motions (that is, summary judgment– stay tuned for Part 8 of the series on that issue). Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback
Ms. Brumback can be contacted at mbrumback@rl-law.com

Climate Change a Factor in 'Unprecedented' South Asia Floods

July 18, 2022 — The Associated Press (Aniruddha Ghosal & Al-Emrun Garjon) - Bloomberg
Sylhet, Bangladesh (AP) -- Scientists say climate change is a factor behind the erratic and early rains that triggered unprecedented floods in Bangladesh and northeastern India, killing dozens and making lives miserable for millions of others. Although the region is no stranger to flooding, it typically takes place later in the year when monsoon rains are well underway. This year's torrential rainfall lashed the area as early as March. It may take much longer to determine the extent to which climate change played a role in the floods, but scientists say that it has made the monsoon — a seasonable change in weather usually associated with strong rains — more variable over the past decades. This means that much of the rain expected to fall in a year is arriving in a space of weeks. Read the court decision
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Reprinted courtesy of Bloomberg

Court Reminds Insurer that the Mere Possibility Of Coverage at the Time of Tender Triggers a Duty to Defend in a Defect Action

October 04, 2021 — Jatin Patel - Newmeyer Dillion
It has long been the law in California that an insurer’s duty to defend is broader than the duty to indemnify and that the mere possibility of coverage triggers a duty to defend. Nevertheless, insurers still periodically ignore this clear principle and attempt to narrow the scope of the duty to defend. Recently, a Federal District Court issued a reminder to a wayward insurer. In Pacific Bay Masonry, Inc., v. Navigators Specialty Insurance Company, (N.D. Cal., Sept. 16, 2021, No. C 20-07376 WHA, 2021 WL 4221747 (“Pacific”)), the Court was asked to assess whether a tender of defense by a concrete masonry subcontractor to its insurer for a construction defect action required a defense. Pacific Bay Masonry, Inc. (“PBM”) installed concrete masonry units (also known as “CMUs”) at a new retail shopping center in Oakland, California. The subsequent owner of the retail center filed suit against the general contractor for alleged construction defects, including “efflorescence of roof deck at CMU wall” and “improper waterproofing and flashing of the CMU block wall." The general contractor filed a cross-complaint against PBM. PBM tendered the defense of the case to Navigators Specialty Insurance Company (“Navigators”) along with copies of a preliminary defect list, a description of defects, interrogatory responses and an expert witness damage analysis. Navigators denied coverage and a duty to defend citing to the work product exclusion of the policy. PBM asked Navigators to reconsider. Navigators held firm on its denial. Two years later, PBM filed suit. Read the court decision
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Reprinted courtesy of Jatin Patel, Newmeyer Dillion
Mr. Patel may be contacted at jatin.patel@ndlf.com

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