SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Policy Lanuage Expressly Prohibits Replacement of Undamaged Material to Match Damaged Material

March 09, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Construing an all-risk Businessowners Policy, the court found that the policy language did not required replacement of undamaged material match materials that were damaged. Pleasure Creek Townhomes Homeowners' Ass'n v. Am. Family Ins. Co., 2019 Minn. App. Unpub. LEXIS 1095 (Minn. Ct. App. Nov. 25, 2019). The policy covered the Association's 14 townhome buildings. In June 2017, a hail storm damaged siding on all 14 buildings. An appraisal panel included the cost to replace the undamaged, faded siding in its appraisal award so that it would match the new siding. American Family refused to pay this component - which was appraised at about $211,382 - of the award. An exclusion in the policy provided,

We will not pay to repair or replace undamaged material due to mismatch between undamaged material and new material used to repair or replace damaged material.

We do not cover the loss in value to an property due to mismatch between undamaged material and new material used to repair or replace damaged material.

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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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Homeowner's Claim for Collapse Survives Summary Judgment

September 20, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The insurer failed to present adequate evidence on summary judgment that damage caused by the collapse of a swimming pool was not covered. Klein v. State Farm Ins. Co., 2017 N.Y. Misc. LEXIS 3030 (Sup. Ct. N.Y. July 11, 2017). Klein notified State Farm that his in-ground pool collapsed on February 5, 2014, with a side wall falling into the pool, causing damage to brick, borders and the patio around the pool. Upon inspection, State Farm's agent found that the cover of the pool had partially fallen into the pool, and that the vinyl pool liner had a tear. State Farm covered the damage to the pool liner, but denied coverage for the in-ground swimming pool walls, the brick border and the patio surrounding the pool. State Farm maintained that the loss was due to a "collapse," which was excluded under the homeowner's policy. 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

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No Coverage Under Ensuing Loss Provision

September 09, 2011 — Tred R. Eyerly - Insurance Law Hawaii

The cost of removing and replacing cracked flanges to prevent future leakage was not covered as an ensuing loss under a builder’s risk policy in RK Mechanical, Inc. v. Travelers Prop. Casualty Co. of Am., 2011 U.S. Dist. LEXIS 83958 (D. Colo. Aug. 1, 2011).

The insured, RK Mechanical Inc., was a subcontractor hired to install plumbing for a residential construction project. RK was an additional insured on the general contractor’s policy with Travelers. RK installed approximately 170 CPVC flanges on the project. Subsequently, two of the flanges cracked, allowing water to overflow and causing water damage to the project. Travelers was notified of the flange failure and resulting water damage.

RK subsequently removed and replaced the two cracked flanges and began water remediation. Travelers paid for the cost of the water damage due to the cracked flanges.

RK then examined all of the flanges installed in the project and discovered many were cracked and/or showed signs of potential failure. RK removed and replaced the cracked flanges. RK tendered a claim and demand for indemnity to Travelers for these repair costs. Travelers denied the claim. RK then sued for breach of contract and declaratory relief. The parties filed cross motions for summary judgment.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Look Up And Look Out: Increased Antitrust Enforcement Of Horizontal No-Poach Agreements Signals Heightened Scrutiny Of Vertical Agreements May Be Next

November 28, 2022 — John F. Finnegan, III & Dominick Weinkam - ConsensusDocs
In the current regulatory environment, it is important for contractors to remain vigilant of heightened anti-competitive enforcement in the construction and procurement spheres by the United States Department of Justice (DOJ). Such vigilance should include, among other things, regular review of applicable laws and implementation of related updates to compliance policies, as well as careful evaluation of joint venture (JV), subcontractor, and teaming agreements.  Recent DOJ Activity Opens The Door To Broader Antitrust Exposure For Contractors Many contractors include exclusivity and non-compete clauses in their vertical agreements, including subcontractor agreements and certain types of JV and teaming agreements. In fact, many widely available “checklists” for drafting these agreements recommend including such provisions; however, under U.S. antitrust law, particularly as enforced by the DOJ in the last 1-2 years, exclusivity and non-compete clauses may be construed as unduly competition-restricting. Although no court has yet held that exclusivity and non-compete clauses in vertical agreements violate antitrust laws, recent aggressive enforcement activity by the DOJ with regard to horizontal no-poach agreements suggests that the investigatory headwinds may be blowing in that direction. Reprinted courtesy of John F. Finnegan, III, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Dominick Weinkam, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Finnegan may be contacted at jfinnegan@watttieder.com Mr. Weinkam may be contacted at dweinkam@watttieder.com Read the court decision
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Private Statutory Cause of Action Under Florida’s Underground Facility Damage Prevention and Safety Act

July 11, 2021 — David Adelstein - Florida Construction Legal Updates
Florida’s Underground Facility Damage Prevention and Safety Act is set forth in Florida Statutes Chapter 556. Any owner or operator of underground infrastructure as well as contractors that perform underground excavation and demolition operations are familiar (or, need to be familiar) with this Act and the requirements it imposes on them. In a nutshell, this Act requires excavators to notify operators of underground facilities (e.g., pipelines, cables, sewers) through a notification system before excavating or demolishing an underground location. Then notification system gives the operator of the underground facility two days’ advance notice that an excavation will be taking place. After receiving this notice, the operator of the underground facility must mark the area where its infrastructure is located which could be affected by the underground excavation or demolition operations. The Act further imposes duties on excavators to use increased caution, supervise mechanized equipment, perform excavation and demolition operations in a careful an prudent manner, and to re-notify the notification system if the operator’s marking is no longer visible so the location of the operator’s underground facility can be re-marked. 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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Goldman Veteran Said to Buy Mortgages After Big Short

February 05, 2015 — Heather Perlberg – Bloomberg
(Bloomberg) -- Dan Sparks helped Goldman Sachs Group Inc. profit from its bets against subprime mortgages. Now he’s expanding credit to Americans hurt when those types of loans soured and the housing market collapsed. Sparks’s SG Capital Partners this year began buying home loans made through origination partners across the U.S., with a focus on mortgages without government backing, said two people with knowledge of the business who asked not to be identified because the information is private. Mortgages that don’t qualify for purchase by government agencies include large-balance jumbo loans and those to borrowers with lower credit scores or higher debt. Read the court decision
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Reprinted courtesy of Heather Perlberg, Bloomberg
Ms. Perlberg may be contacted at hperlberg@bloomberg.net

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Utah Supreme Court Allows Citizens to Block Real Estate Development Project by Voter Referendum

June 10, 2019 — Sean M. Mosman & Mark O. Morris - Snell & Wilmer Under Construction
The Utah Supreme Court recently decided Baker v. Carlson, 2018 UT 59, which considered a developer’s ongoing effort to build a mixed-use, part-residential and part-commercial development on the site of the long-defunct Cottonwood Mall located in Holladay, Utah. On November 28, 2018, the Supreme Court affirmed the Third District Court’s ruling that a voter referendum to block the development was valid. This ruling calls into question the certainty of investment-backed real estate decisions in Utah and thus could carry negative implications for the Utah construction and real estate development communities. The Cottonwood Mall opened in the early 1960s, and for several decades was a popular regional shopping destination. But the mall fell on financial hard times in the mid-1990s, and since 2007 the 57-acre lot has sat vacant. Around that time, the owner of the lot made plans to redevelop it, and asked Holladay City to rezone the site to permit mixed uses. In response, the City rezoned the lot as Regional/Mixed-Use (R/M-U). The City also created a process to control the development of an R/M-U zone, requiring prospective builders to first submit a site development master plan—which sets forth guidelines for the overall development and design of the site—to the City for approval. After the City approves a master plan, the developer must enter into a development agreement with the City, giving the developer certain rights and addressing other development-related issues. Reprinted courtesy of Sean M. Mosman, Snell & Wilmer and Mark O. Morris, Snell & Wilmer Mr. Mosman may be contacted at smosman@swlaw.com Mr. Morris may be contacted at mmorris@swlaw.com Read the court decision
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America’s Infrastructure Gets a C-. It’s an Improvement Though

April 05, 2021 — Garret Murai - California Construction Law Blog
Every four years the American Society of Civil Engineers (ASCE) issues a report card assigning a letter grade to the nation’s infrastructure. ASCE issued their 2021 Infrastructure Report Card earlier this month. Our country’s grade in 2021? A disappointing C-. It’s an improvement though. When ASCE issued their 2017 Infrastructure Report Card we didn’t even pass the class with a grade of D+. In short, there’s room for improvement. A lot of room for improvement. C- is just the cumulative grade however. ASCE’s Report Card is divided into industry segments with grades assigned to each segment. Individual grades for some, but not all, of the segments include the following:

• Aviation: The nation’s airports received a grade of D+. According to the Report Card, terminal, gate and ramp availability are not meeting the needs of a growing passenger base which has increased from 964.7 million to 1.2 billion per year and a has a 10-year shortfall of $111 billion.

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

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