SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer Has Duty to Defend Sub-Contractor

July 25, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Interpreting Connecticut law, the federal district court had that the insured sub-contractor was entitled to a defense. County Wide Mech. Servs. LLC v. Regent Ins. Co., 2022 U.S. Dist. LEXIS 86726 (D. Conn. May 13, 2022). The underlying plaintiff, The Saybrook at Haddam, entered a contract with PAC Group to serve as general contractor for construction of an addition to The Saybrook's facility. PAC Group sub-contracted with County Wide Mechanical Services to install the HVAC system. The HVAC system was put into service on November 14, 2014. In October 2019, The Saybrook filed the underlying action against PAC group, County Wide, and others. The underlying complaint alleged that there had been at least seven "critical failures" of the HVAC system. As a result, The Seabrook had to replace multiple compressors and several circuit boards, valves, and other components. Further, the entire system had to be replaced. The underlying complaint alleged breach of contract against PAC Group and County Wide. In addition to the alleged breach of contract between The Saybrook and County Wide, the Saybrook also alleged it was a third-party beneficiary of PAC Group's contract with County Wide regarding installation of the HVAC system. PAC Group cross-claimed against County Wide, asserting one count of contractual indemnification and one count of breach of contract under the PAC Group's contract with County Wide. 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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Arbitration: For Whom the Statute of Limitations Does Not Toll in Pennsylvania

June 03, 2019 — Gus Sara - The Subrogation Strategist
In Morse v. Fisher Asset Management, LLC, 2019 Pa. Super. 78, the Superior Court of Pennsylvania considered whether the plaintiff’s action was stayed when the trial court dismissed the plaintiff’s complaint after sustaining the defendants’ preliminary objections seeking enforcement of an arbitration clause in the contract at issue. The Superior Court—distinguishing between a defendant who files a motion to compel arbitration and a defendant who files preliminary objections based on an arbitration clause—held that, in the latter scenario, if the defendant’s preliminary objections are sustained, the statute of limitations is not tolled. This case establishes that, in Pennsylvania, plaintiffs seeking to defeat a challenge to a lawsuit based on a purported agreement to arbitrate need to pay close attention to the type of motion the defendant files to defeat the plaintiff’s lawsuit. In Morse, the plaintiff entered into a contract with Fisher Asset Management (Fisher) in 2008 for investment-advisor services. The contract included a provision stating that any dispute, claim or controversy arising out of the agreement between the parties shall be determined by arbitration. In June 2009, the plaintiff filed a complaint against Fisher and two of its employees in the Court of Common Pleas of Allegheny County, alleging breach of fiduciary duty, breach of contract, negligence, and other claims. The defendants filed preliminary objections to the complaint seeking dismissal on grounds that the contract between the plaintiff and Fisher required that the dispute be determined by arbitration. The court sustained the preliminary objections and dismissed the complaint. The plaintiff did not appeal the court’s ruling. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Sweet News for Yum Yum Donuts: Lost Goodwill is Not an All or Nothing Proposition

October 07, 2019 — Josh Cohen - California Construction Law Blog
Last month a California Court of Appeals clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, to be entitled to a trial on the amount of goodwill lost. Yum Yum Donuts operated a shop in Los Angeles that was subject to eminent domain by the Los Angeles Metropolitan Transportation Authority (MTA) to make way for light railway track. At trial, Yum Yum sought loss of goodwill as part of its condemnation damages under Code of Civil Procedure section 1263.510. At trial the MTA’s expert testified that Yum Yum could have reduced its goodwill loss if it relocated to one of three alternative locations rather than simply closing the shop. But the expert conceded that even if Yum Yum had relocated, it would have lost some goodwill. Yum Yum refused to relocate, arguing that its relocation costs would render the move unprofitable. The trial court found that Yum Yum’s failure to mitigate its damages barred Yum Yum from having a jury trial to recover any goodwill damages. Read the court decision
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Reprinted courtesy of Josh Cohen, Wendel, Rosen, Black & Dean LLP
Mr. Cohen may be contacted at jcohen@wendel.com

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CalOSHA Updates its FAQ on its COVID-19 Emergency Temporary Regulations

March 22, 2021 — Garret Murai - California Construction Law Blog
As we reported in early December, CalOSHA adopted emergency temporary regulations requiring, among other things, that employers implement a written COVID-19 prevention program, that notice be given by employers to employees in the event of potential COVID-19 exposure, and that employers continue to pay employees who have been exposed to COVID-19 even if the employee has no paid time off available. In conjunction with the emergency temporary regulations, CalOSHA posted a FAQ on the emergency regulations. On February 26, 2021, CalOSHA updated its FAQ. Among other things, the updated FAQ updates the following sections of the FAQ:

• Scope of Coverage: Clarifies that the emergency regulations apply even to workplaces with only one employee but that it does not apply to employees working remotely.

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Residential Contractors, Be Sure to Have these Clauses in Your Contracts

May 16, 2018 — Christopher G. Hill - Construction Law Musings
I have often “mused” on the need to have a good solid construction contract at the beginning of a project. While this is always true, it is particularly true in residential contracting where a homeowner may or may not know the construction process or have experience with large scale construction. Often you, as a construction general contractor, are providing the first large scale construction that the homeowner has experienced. For this reason, through meetings and the construction contract, setting expectations early and often is key. As a side note to this need to set expectations, the Virginia Department of Professional and Occupational Regulation (DPOR) and the Virginia General Assembly require certain clauses to be in every residential construction contract. DPOR strictly enforces these contractual items and failure to put them in your contracts can lead to fines, penalties and possibly even revocation of a contractor’s license. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Quick Note: Discretion in Determining Prevailing Party for Purposes of Attorney’s Fees

January 25, 2021 — David Adelstein - Florida Construction Legal Updates
In prior articles I have discussed that courts apply the significant issues test to determine the prevailing party for purposes of being entitled to attorney’s fees. A party that recovers an affirmative judgement is NOT the de facto prevailing party for purposes of an entitlement to attorney’s fees in a breach of contract action (or a construction lien foreclosure action). This was the issue in a recent appeal discussed here where the party that recovered an affirmative judgment on a breach of contract case was not deemed the prevailing party for purposes of attorney’s fees. While the party prevailed on one of its claims, it did not prevail on others, and it recovered less than half of the damages it originally sought. The appellate court, affirming the trial court, held that the trial court has discretion to determine that the party that recovered an affirmative judgement was not the prevailing party entitled to its attorney’s fees under the signifiant issues test. This was not what the party was expecting when the attorney’s fees it expended far exceeded the judgment it recovered. 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

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The Colorado Court of Appeals Rules that a Statutory Notice of Claim Triggers an Insurer’s Duty to Defend.

October 23, 2012 — David M. McLain, Higgins, Hopkins, McLain & Roswell

Gene and Diane Melssen d/b/a Melssen Construction (“Melssen”) built a custom home for the Holleys, during which period of time Melssen retained a CGL insurance coverage from Auto Owners Insurance Company. Soon after completion of the house, the Holleys noticed cracks in the drywall and, eventually, large cracks developed in the exterior stucco and basement slab. Thereafter, the Holleys contacted Melssen, the structural engineer, an attorney, and Auto-Owners, which assigned a claims adjuster to investigate the claim.



In April 2008, the Holleys sent Melssen a statutory notice of claim pursuant to C.R.S. § 13-20-803.5 (“NOC”). In this NOC, the Holleys claimed approximately $300,000 in damages related to design and construction defects. The Holleys also provided a list of claimed damages and estimated repairs, accompanied by two reports from the Holleys’ consultant regarding the claimed design and construction defects. In June 2008, Melssen tendered the defense and indemnity of the claim to Auto-Owners. While Auto-Owners did not deny the claim at that time, it did not inspect the property or otherwise adjust the claim. Thereafter, in October 2008, Auto-Owners sent Melssen a letter denying coverage on the basis that the damage occurred outside of the applicable policy period.



Ultimately, Melssen settled the claims against it for $140,000.



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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC. Mr. McLain can be contacted at mclain@hhmrlaw.com

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The Great London Property Exodus Is in Reverse as Tenants Return

June 06, 2022 — Lizzy Burden - Bloomberg
Tenants flocking to London are driving up rents in the capital, reversing the pandemic “race for space” and adding to the UK’s cost-of-living crisis. A record 30% of homes let in London this year went to people who previously lived outside the city, according to estate agent Hamptons. The surrounding areas of Berkshire, Buckinghamshire, Essex, Hertfordshire, Kent and Surrey –- known as the Home Counties – now account for more than half of tenants moving in. However, people are tending to move to London for lifestyle reasons rather than because they are being summoned back to the office, Hamptons said. Study and changes in family circumstances are often providing the trigger. Read the court decision
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Reprinted courtesy of Lizzy Burden, Bloomberg

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