SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Stay of Coverage Case Appropriate While Court Determines Arbitrability of Dispute

April 22, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit vacated a discovery order issued by the district court and remanded the case for issuance of a stay while the arbitrability of the coverage dispute was reviewed. Cameron Parish Recreation #6 v. Indian Harbor Ins. Co., et al., 2024 U.S. App. LEXIS 3804 (5th Cir. Feb. 19, 2024). The plaintiffs purchased surplus lines polices from various insurance companies to provide coverage for commercial properties. The policies included an arbitration provision for resolving any disputes. After plaintiffs were denied coverage for damage to their properties from Hurricane Laura, they sued the insurers. The insurers filed motions to compel arbitration and to stay the case. The district court refused the stay and ordered limited discovery into arbitrability. The insurers appealed. 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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Up in Smoke - 5th Circuit Finds No Coverage for Hydrochloric Acid Spill Based on Pollution Exclusion

October 19, 2020 — Kerianne E. Kane & David G. Jordan - Saxe Doernberger & Vita
The Fifth Circuit Court of Appeals recently held that an insurer was not obligated to pay damages associated with a hydrochloric acid spill based on a pollution exclusion in the policy. In Burroughs Diesel, Inc. v. Travelers Indemnity Co. of America,1 a trucking company sued its property insurer, Travelers Indemnity Company of America (“Travelers”) when it refused to pay a claim for a storage tank leak which resulted in over 5,000 gallons of hydrochloric acid entering the property and causing significant damage to buildings, vehicles, tools, and equipment. The acid was initially dispensed in liquid form, but quickly became a cloud that engulfed the property. Travelers denied coverage for the claim based on the pollution exclusion because “acids” fell within the policy’s definition of “pollutants.” The trucking company sued Travelers in the United States District Court for the Southern District of Mississippi, alleging breach of contract and breach of good faith and fair dealing for refusing to pay the claim. The trucking company argued that coverage was warranted because there is an exception to the pollution exclusion if “the discharge, dispersal, seepage, migration, release or escape is itself caused by any of the ‘specified causes of loss,’” and the hydrochloric acid cloud was a form of “smoke,” which is a specified cause of loss covered by the policy. The District Court entered summary judgment in favor of Travelers, finding that the trucking company failed to demonstrate that an exception to the pollution exclusion applied. The trucking company appealed to the Fifth Circuit Court of Appeals. Reprinted courtesy of Kerianne E. Kane, Saxe Doernberger & Vita and David G. Jordan, Saxe Doernberger & Vita Ms. Kane may be contacted at kek@sdvlaw.com Mr. Jordan may be contacted at dgj@sdvlaw.com Read the court decision
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Reprinted courtesy of

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Parking Reform Takes Off on the West Coast

January 23, 2023 — Allan Van Vliet - Gravel2Gavel Construction & Real Estate Law Blog
Starting January 1, 2023, real estate developers in Oregon and California will no longer be required to build off-street parking facilities for certain projects located near public transit. Both states enacted new rules during the course of 2022 which are effective as of the beginning of 2023, and which seek to reduce the costs of building at least some new projects in major population centers. In California, A.B. 2097 was signed by Governor Gavin Newsom in September, and prohibits city governments throughout the state (including in charter cities) from enforcing any local land use provisions which would require the developer to build parking spaces as part of their project if the project is located within one half-mile of a major public transit stop. The law applies to both residential and commercial projects. Cities can continue mandating parking for individual projects if they find that doing so is important to support the development of affordable housing—this exception was added to allay concerns that the bill would undermine “density bonus” programs which have become an important tool for the promotion of new affordable housing development around the state. In Oregon, following a 2020 executive order by Governor Kate Brown, the state Land Conservation and Development Commission (the body responsible for land use and planning regulation in Oregon) embarked on a two-year rulemaking process which culminated in July of 2022 with the approval of a set of “Climate Friendly and Equitable Communities Rules.” Like the California legislation, these rules (in part) limit the ability of Oregon’s most populous cities to enforce parking minimums for new development projects. Unlike the California law, the Oregon rules encourage cities simply to repeal their parking mandates entirely. Cities subject the new rules which choose not to repeal their parking mandates in full must, as an alternative, adopt new local policies to reduce the amount of land dedicated to parking in certain geographies or in connection with certain uses. Read the court decision
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Reprinted courtesy of Allan Van Vliet, Pillsbury
Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com

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COVID-19 Vaccine Considerations for Employers in the Construction Industry

July 11, 2021 — Maggie Spell - ConsensusDocs
1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment? In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats. First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key. Read the court decision
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Reprinted courtesy of Maggie Spell, Jones Walker LLP
Ms. Spell may be contacted at mspell@joneswalker.com

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Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

October 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

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California Subcontractor Gets a Kick in the Rear (or Perhaps the Front) for Prematurely Recorded Mechanics Lien

October 21, 2019 — Garret Murai - California Construction Law Blog
California provides three statutorily recognized construction payment remedies: (1) mechanics liens; (2) stop payment notices; and (3) payment bond claims. Each is intended to provide payment protections for those who furnish labor, materials and services on a construction project. However, each is also different in important ways. One of those differences has to do with timing. Specifically, when the statutory payment remedy may be used by a claimant. Stop payment notices can be served at any time during a project even before a claimant has completed its work. However, mechanics liens may only be recorded and payment bond claims may only be made after a claimant has completed or ceased performing its work. In Precision Framing Systems, Inc. v. Luzuriaga, Case No. E069158 (August 29, 2019), the 4th District Court of Appeal examined whether a subcontractor had prematurely recorded a mechanics lien and, thereby, was prevented from filing a lawsuit to foreclose on its mechanics lien. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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A New Statute of Limitations on Construction Claims by VA State Agencies?

March 27, 2019 — Christopher G. Hill - Construction Law Musings
I have discussed the Hensel Phelps case and the potential issues caused by both poorly drafted indemnity clauses and the lack of a statute of limitations applicable to the Commonwealth of Virginia and its agencies in 2017. New legislation (supported by various contractor groups including my friends at the AGC of Virginia) has been proposed for the 2019 General Assembly session that seeks to address at least part of this issue. While the indemnity provisions of your construction contracts can be addressed by careful drafting with the help of an experienced construction attorney, the proposed legislation (found in HB1667) seeks to address the statute of limitations issue. The proposed legislation is described as follows:

Provides that no action may be brought by a public body on any construction contract, including construction management and design-build contracts, unless such action is brought within five years after substantial completion of the work on the project and that no action may be brought by a public body on a warranty or guarantee in such construction contract more than one year from the breach of that warranty, but in no event more than one year after the expiration of such warranty or guarantee. The bill also limits the time frame during which a public body, other than the Department of Transportation, may bring an action against a surety on a performance bond to within one year after substantial completion of the work on the project.

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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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First Suit Filed for Losses Caused by COVID-19

March 30, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Last week, the first lawsuit was filed seeking insurance coverage for business-interruption due to losses caused by COVID-19. The case, Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd's of London, ,et al., was filed in Louisiana. A New Orleans restaurant, Oceana Grill," seeks a declaratory judgment that its "all risks" policy issued by Lloyd's covers losses resulting from the closure of its restaurant due to the Governor's order restricting public gatherings and the Mayor of New Orleans' order closing restaurants. The lawsuit contends that "contamination of the insured premises by the coronavirus would be a direct physical loss needing remediation to clean the surfaces of the establishment." The lawsuit further alleges the policy contains no exclusions for a "viral pandemic." The suit seeks a declaration that "the policy provides coverage to plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from coronavirus contamination and that the policy provides business income coverage in the event that the coronavirus has contaminated the insured premises." The obvious dispute will be whether the coronavirus constitutes a "direct physical loss or damage" as required by the policy. 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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