Seattle Washington Building Expert Directory

Indemnity Clauses—What do they mean, and what should you be looking for?

May 07, 2015 — Craig Martin – Construction Contractor Advisor
It seems that every construction contract now-a-days, contains an indemnity clause. Contractors should be reviewing these indemnity clauses very carefully to understand the potential scope of an indemnity obligation and your opportunity to negotiate changes. What is an indemnity Clause? An indemnity clause transfers risk from one party to another. When a contractor signs an indemnity agreement, it is agreeing to pay for damages for which another party could be liable. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Denial of Claim for Concealment or Fraud Reversed by Sixth Circuit

October 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Sixth Circuit reversed the district court's order granting summary judgment to State Farm based upon the insured's alleged concealment of the truth when questioned about a fire that destroyed his home. Rose v. State Farm Fire & Cas. Co., 2014 U.S. App. LEXIS 17312 (6th Cir. Sept. 8, 2014). A fire destroyed the insured's home. He reported the loss to State Farm, who assigned Rob Raker to investigate the claim. Coverage was denied because State Farm contended that the "Intentional Acts" and "Concealment or Fraud" conditions of the homeowner's policy were violated. The insured sued State Farm. The district granted summary judgment to State Farm after finding that some of the answers the insured gave to Raker were misleading and material. The court determined that the insured failed to identify multiple tax liens and judgments when questioned about his financial status. 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

Playing Hot Potato: Indemnity Strikes Again

September 17, 2015 — Garret Murai – California Construction Law Blog
Indemnity can be like playing hot potato (for those of you closer to the Minecraft generation, in the game of hot potato, a metaphoric “hot potato” is tossed between (ahem amongst) players while music is playing, and when the music stops, the player holding the hot potato is out. It’s a barrel of monkeys, trust me.). Anyway, like hot potato, with indemnity an owner typically requires its general contractor to indemnify the owner (sometimes the property owner in TI projects and occasionally design professionals) from and against any and all claims arising out of, related to . . . blah, blah, blah . . . the general contractor’s scope of work . A general contractor in turn will usually require indemnity from its subcontractors. And subcontractors will require indemnity from their sub-subcontractors. And down the line it goes with each party pointing their finger at the next party down the proverbial “food chain.” But it doesn’t always happen that way as the next case, American Title Insurance Company v. Spanish Inn, Case No D067137, California Court of Appeals for the Fourth District (August 14, 2015), illustrates. 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

What Types of “Damages Claims” Survive a Trustee’s Sale?

February 28, 2018 — Ben Reeves – Real Estate Litigation blog / Snell & Wilmer
Introduction Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going forward. See A.R.S. § 33-811(C). In other words, if you have an objection to a trustee’s sale, you must seek and obtain an injunction prior to the sale or your objection will be waived. Arizona’s Court of Appeals previously held that notwithstanding this statutory waiver, “common law” defenses to repayment of the debt survive a non-judicial foreclosure even in the absence of an injunction prior to the sale. See Morgan AZ Financial, L.L.C. v. Gotses, 235 Ariz. 21, 326 P.3d 288 (Ct. App. 2014). Our analysis of the Morgan decision can be found here. In Zubia v. Shapiro, 243 Ariz. 412, 408 P.3d 1248 (2018), the Arizona Supreme Court revisited the issue of what claims survive a trustee’s sale, and clarified that if a person fails to enjoin a trustee’s sale prior to its occurrence, then that person waives any and all damages claims dependent upon a trustee’s sale. That person does not, however, waive damages claims that are independent of the sale. Thus, determining what types of claims are “dependent” versus “independent” of a trustee’s sale is of critical importance to lenders and borrowers alike. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

New York’s Highest Court Reverses Lower Court Ruling That Imposed Erroneous Timeliness Requirement For Disclaimers of Coverage

June 18, 2014 — Robert F. Walsh and Paul A. Briganti – White and Williams LLP
On June 10, 2014, the New York Court of Appeals (the state’s highest court) issued a unanimous decision in KeySpan Gas East Corp. v. Munich Reinsurance America, Inc. (No. 110, June 10, 2014), reversing a lower court decision which had erroneously imposed on insurers a duty to disclaim coverage for property damage claims as soon as possible or risk waiving their coverage defenses. White and Williams represented one of the insurance company defendants in the action. The case involved an action against three excess insurers for insurance coverage for underlying environmental claims arising from Manufactured Gas Plant sites. Upon receiving notice of the underlying claims, the three insurers reserved their rights to deny coverage on various grounds, including late notice of an occurrence, pending an investigation. The insurers ultimately denied coverage on the basis of late notice several years later based on information developed in discovery in the litigation. The policyholder/plaintiff KeySpan argued that the insurers had unreasonably delayed in issuing their disclaimers and that there was a triable issue of fact on whether such a delay amounted to a waiver of the late notice defense. Reprinted courtesy of Robert F. Walsh, White and Williams LLP and Paul A. Briganti, White and Williams LLP Mr. Walsh may be contacted at walshr@whiteandwilliams.com; Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Read the court decision
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Insurance Coverage Litigation Section to Present at Hawaii State Bar Convention

October 15, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii State Bar convention will be on October 24, 2014, at the Hawaiian Hilton. The Insurance Coverage Litigation Section will make a presentation from 8:30 a.m. to 11:45 a.m. Three presentations will be made. First, Richard C. Mosher (Anderson Kill), Kathy Dang (Marsh), and Beau Monday (Hawaiian Telcom) will discuss cyber-liability claims and insurance options. Next, David R. Harada-Stone (Tom Petrus & Miller) and I (Damon Key Leong Kupchak Hastert) will address "occurrences," i.e., deciding on and the impact of determining the number of occurrences in particular factual settings. 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

Is Construction in Arizona Back to Normal?

September 10, 2014 — William M. Kaufman – Construction Lawyers Blog
The Phoenix Metro area is finally pulling out of the Great Recession of 2008. Potential homebuyers are frantically looking to buy a home before interest rates rise and prices continue their ascent to normalcy. For the last several months, residential construction builders have continued to buy more land around the Valley of the Sun for new subdivisions, especially in North Phoenix and the East Valley. In fact, from January through May of 2013, in the Phoenix Metro area alone, 86 new communities have come to fruition—more than all of 2012. Nationally, single-family housing starts reached 667,000 in December 2013 according to the National Association of Home Builders tracking of single-family home starts, which is comparable to 1985 levels. It has been well documented that since the conclusion of World War II, Arizona’s population growth fostered new home construction at a rapid, almost unmatched pace. At the 2006 construction peak, Arizona’s residential construction output climbed to 64,000, more than double the average 20,000 to 30,000 new homes that are typically constructed annually. Building rates have not come close to the 2006 numbers, but new home starts increased 70 percent since 2012. So after six years after the real estate bubble popped, is the construction industry in Arizona finally back to normal? It depends on your definition of “normal.” In 2009, foreclosures reached alarming proportions. However, in 2010, the engine of Arizona’s population growth, the Phoenix Metro area, began to grow again. Since 2010, Maricopa County had added 125,000 residents. There is strong demand for new housing, and appreciating housing prices has let the construction industry get back on its feet. In residential construction, supply is tight, and all cash offers are common. We all know that Wall Street played a huge role in creating the housing bubble, and eventual bust, by facilitating the use of risky, sub-prime mortgages and turning them into securities that were sold to investors, pension-funds, and the like. Reprinted courtesy of William M. Kaufman, Lockhart Park LP Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Tallest U.S. Skyscraper Dream Kept Alive by Irish Builder

May 01, 2014 — Brian Louis – Bloomberg
Garrett Kelleher, the Irish developer trying to restore Chicago’s status as home to the tallest building in the U.S., has one last chance to keep his dream alive. The planned lakefront skyscraper is nothing more than a hole in the ground six years after the financial crisis derailed Kelleher’s ambitions. To salvage the project, he must line up money to get out of bankruptcy, then obtain financing for the 2,000-foot (610-meter), Santiago Calatrava-designed Chicago Spire condominium tower, which would surpass New York’s 1 World Trade Center by 224 feet. “I never understood how that project was going to work, frankly,” said Alan Lev, chief executive officer of Belgravia Group Ltd., a Chicago-based housing developer uninvolved in the project. “It’s a real eyesore sitting in the ground, so I hope somebody does something with it.” Read the court decision
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Reprinted courtesy of Brian Louis, Bloomberg
Mr. Louis may be contacted at blouis1@bloomberg.net

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