Seattle Washington Building Expert Directory

Firm Offers Tips on Construction Defects in Colorado

February 28, 2013 — CDJ STAFF
Although the Tenth Circuit Court determined that construction defects are occurrences under a general liability policy and the passage of CRS Section 13-20-808, in which the Colorado Legislature addressed the definition of occurrences as they relate to construction defects, the insurance industry “will continue to challenge the very concept of coverage for construction defects,” according to five attorneys at the law firm Sherman & Howard. They suggest that there are lessons to be learned from two recent cases that were recently decided by the Colorado Court of Appeals, TCD, Inc. v. American Family and Colorado Pool Systems, Inc. v. Scottsdale Insurance Company. They suggest that construction professionals to be certain that their insurers are “firmly rooted in insuring the construction industry.” Their broker should also have “specific expertise in insuring the construction industry.” And don’t buy on price alone. Finally, they suggest that construction professionals should “engage an experienced coverage attorney to assess pursuing coverage when an insurance company denies coverage for a construction defect claim.” Read the court decision
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Asserting Non-Disclosure Claim Involving Residential Real Property and Whether Facts Are “Readily Observable”

September 29, 2021 — David Adelstein - Florida Construction Legal Updates
Under Florida law, there is a claim dealing with the purchase and sale of residential real property known as a Johnson v. Davis or a non-disclosure claim: “[W]here the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” Lorber v. Passick, 46 Fla.L.Weekly D1952a (Fla. 4th DCA 2021). A seller’s duty to disclose extends to a seller’s real estate agent/broker. Id. A non-disclosure claim is asserted by the buyer of residential real property when the buyer discovers defects or damages with the real property that he believes materially affects the value of the property. While there may be the sentiment these are easy claims to prove, they are not. Remember, a non-disclosure claim deals with facts that materially affect the value of residential real property and are NOT readily observable. The use of the language “readily observable” has been found to mean:

“[I]nformation [that] is within the diligent attention of any buyer. To exercise diligent attention…a buyer would be required to investigate any information furnished by the seller that a reasonable person in the buyer’s position would investigate and take reasonable steps to ascertain the material facts relating to the property and to discovery them—if, of course, they are reasonably ascertainable.”

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

Speculative Luxury Homebuilding on the Rise

April 08, 2014 — Beverley BevenFlorez-CDJ STAFF
Forbes reported that there is a “comeback in speculative building of luxury homes in centers of wealth across the country.” “The appearance of spec homes in the upper price range is an indication of the maturation of the housing cycle,” Stuart Gabriel, director of the Ziman Center for Real Estate at UCLA, told Forbes. “It’s an indication of increasing levels of confidence on the part of home builders.” Dana Kuhn, of the Corky McMillin Center for Real Estate at San Diego State University, stated that she “would expect luxury buyers to want more design control than can be afforded them if the house is mostly complete when they make their purchase.” But the article showed the flip side: Some luxury buyers are “too busy to bother with such involvement” and even prefer to buy the house fully furnished. Read the court decision
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The Regulations on the Trump Administration's Chopping Block

August 02, 2017 — Pam Radtke Russell - Engineering News-Record
The Trump administration's next big step toward repealing the controversial Waters of the U.S. (WOTUS) rule is official, with a proposal to rescind the Obama-era regulation appearing in the Federal Register on July 27, setting off a relatively short comment period that will end Aug. 28. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Mr. Russell may be contacted at Russellp@bnpmedia.com

Indiana Appellate Court Allows Third-Party Spoliation Claim to Proceed

August 01, 2023 — Ryan Bennett - The Subrogation Strategist
In Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et al, No. 22A-CT-1924, 2023 Ind. App. LEXIS 157, the Court of Appeals of Indiana (Appellate Court) reversed a trial court ruling that granted the motion to dismiss filed by Michaelis Corporation (Michaelis), a restoration company. The Appellate Court ruled that the trial court erred in dismissing the plaintiff’s spoliation and negligence claims against Michaelis, who discarded evidence relating to the cause of the fire at issue. The plaintiff’s insured owned a home in Indianapolis, Indiana. On Halloween night in 2019, a fire occurred at the property. The plaintiff’s representatives preliminarily determined that the fire may have been caused by a digital dehydrator within the kitchen. Michaelis had a representative present at the site inspection and was allegedly told to preserve the kitchen area. That area was taped off with “caution” tape. Michaelis also placed a tarp over the kitchen to prevent weather damage. Despite the instructions and precautions, Michaelis demolished the kitchen and discarded the dehydrator along with other fire debris. Read the court decision
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Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

Consider Manner In Which Loan Agreement (Promissory Note) Is Drafted

March 02, 2020 — David Adelstein - Florida Construction Legal Updates
Consider who you loan money too and, perhaps more importantly, the manner in which your loan agreements (promissory notes) are drafted. By way of example, in what appears to be a failed construction project in Conrad FLB Management, LLC v. Diamond Blue International, Inc., 44 Fla. L. Weekly D2897a (Fla. 3d DCA 2019), a group of lenders lent money to a limited liability company (“Company”) in connection with the development of a project. Promissory notes were executed by Company and executed by its managing member as a representative of Company, and not in a personal capacity. Company, however, did not own the project. Rather, an affiliated entity owned the project (“Affiliated Entity”). Affiliated Entity had the same managing member as Company. Once the Company received the loan proceeds, it transferred the money to Affiliated Entity, presumably for purposes of the project. The loans were not repaid and the lenders sued Company, Affiliated Entity, and its managing member, in a personal capacity. The lenders claimed they were all jointly liable under the promissory notes. Although the trial court granted summary judgment in favor of the lenders, this was reversed on appeal as to the Affiliated Entity and the managing member because there was a factual issue as to whether they should be bound by the note executed on behalf of Company. First, Florida Statute s. 673.4011(1) provides that “a person is not liable on a promissory note unless either (a) the person signed the note, or (b) the person is represented by an agent who signed the note.” Conrad FLB Management, LLC, supra. Affiliated Entity is a separate entity and did not execute the note. 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

Maryland Court Affirms Condo Association’s Right to Sue for Construction Defects

November 27, 2013 — CDJ STAFF
The Maryland Court of Appeals, that state’s highest court, recently reaffirmed that condominium association have broad discretion in suing for construction defects in when they are representing at least two unit owners. Nicholas D. Cowie of the Baltimore-based construction defect legal firm Cowie & Mott, gives his summary of the case on his firm’s web site. Mr. Cowie notes that the Council of Unit Owners of Bentley Place Condominium sued the developer and builder for construction defects in both common areas and within units, representing itself and “two or more” unit owners. A jury awarded $6.6 million; the builder and developer appealed. The court ruled on the appeal that the Council of Unit Owners had a right to pursue these claims, and could recover full damage to common elements, even if some owners are time-barred due to their date of purchase. Mr. Cowie represented the Council of Unit Owners during the lawsuit. Read the court decision
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Emotional Distress Damages Not Distinct from “Annoyance and Discomfort” Damages in Case Arising from 2007 California Wildfires

February 16, 2017 — Kirsten Lee Price & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Hensley v. San Diego Gas & Elec. Co., (No. D070259, filed 1/31/17), the California Court of Appeal for the Fourth Appellate District held that emotional distress damages are available on claims for trespass and nuisance as part of “annoyance and discomfort” damages. In Hensley, plaintiffs sustained fire damage to their home and property during the 2007 California wildfires. The Hensleys were forced to evacuate as the fires advanced. Although their home was not completely destroyed, it sustained significant damage and they were not able to return home permanently for nearly two months. Thereafter, the Hensleys filed suit against San Diego Gas and Electric Company (“SDG&E”) asserting causes of action for trespass and nuisance, among others. Mr. Hensley, who had suffered from Crohn’s disease since 1991, further claimed that as a result of the stress from the fire, he experienced a substantial increase in his symptoms and his treating physician opined that “beyond a measure of reasonable medical certainty... the stress created by the 2007 San Diego fires caused an increase of [Mr. Hensley’s] disease activity, necessitating frequent visits, numerous therapies, and at least two surgeries since the incident.” SDGE moved, in limine, to exclude evidence of Mr. Hensley’s asserted emotional distress damages arguing he was not legally entitled to recover them under theories of trespass and nuisance. The trial court agreed and excluded all evidence of such damages. Reprinted courtesy of Kirsten Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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