Seattle Washington Building Expert Directory

Contractor Haunted by “Demonized” Flooring

December 14, 2020 — Garret Murai - California Construction Law Blog
The most un-Halloween of Halloweens has come and gone. If you ask me though, between COVID, protests, fires, hurricanes, the passing of a Supreme Court Justice, and one of the most hotly contested elections in U.S. history, we’ve had enough scares this year to make up for it and then some. In the next case, Sieg v. Registrar of Contractors, Case No. A156089 (September 28, 2020), 1st District Court of Appeal, one contractor, haunted by “demonized” flooring, and who couldn’t catch a break even with the talisman of a release of liability signed by the homeowner, can add one more to his list of reasons why 2020 needs to be relegated to the history books. The Sieg Case In January 2012, homeowners Dennis and Ana Torchia purchased wood flooring for their home in Windsor, California. Specifically, they selected Brazilian Ebony, an exotic species of unusually hard wood, for its appearance and durability. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

DE Confirms Robust D&O Protection Despite Company Demise

February 18, 2015 — James Yoder, Michael Onufrak and Siobhan Cole – White and Williams LLP
On Feb. 5, 2015, the United States Bankruptcy Court for the District of Delaware, per Judge Brendan L. Shannon, entered proposed findings of fact and conclusions of law in favor of the former president and CEO of Ultimate Escapes Inc., James M. Tousignant, and its chairman, Richard Keith, after determining that Tousignant’s actions in negotiating and executing a controversial asset purchase agreement were protected by the business judgment rule, despite the demise of the company a short time later. The failure of a business strategy, in and of itself, does not create liability on the part of the former directors and officers of a bankrupt company. Background Ultimate Escapes was a luxury destination club that provided its members with access to high-end vacation residences around the world. Unfortunately, Ultimate Escapes’ business suffered greatly from the economic downturn that began in 2008, and on Sept. 20, 2010, Ultimate Escapes filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code. Reprinted courtesy of White and Williams LLP attorneys James Yoder, Michael Onufrak and Siobhan Cole Mr. Yoder may be contacted at yoderj@whiteandwilliams.com Mr. Onufrak may be contacted at onufrakm@whiteandwilliams.com Ms. Cole may be contacted at coles@whiteandwilliams.com Read the court decision
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California Supreme Court Holds that Design Immunity Does Not Protect a Public Entity for Failure to Warn of Dangerous Conditions

June 26, 2023 — Garret Murai - California Construction Law Blog
Get ready for more street signage. The California Supreme Court, in Tansavatdi v. City of Rancho Palos Verdes, (2023) 14 Cal.5th 639, has held that Government Code section 830.6, which protects public entities from claims alleging dangerous conditions on public property if the design was approved by a public agencies’ legislative body or their designee, does not shield a public entity from claims that the public entity should have warned the public of known dangers. We wrote about the Tansavatdi case a while back when it was before the Court of Appeals. The case involves a very sad set of facts. A young boy was killed by a semi-trailer while waiting at a stoplight on his bicycle in Rancho Palos Verdes, California. The area where the boy was killed did not have a bicycle lane although stretches of the same road did. The 2nd District Court of Appeal, on appeal from a motion for summary judgment, held that even if the public entity could establish that it was immune from liability under Government Code section 830.6, the trial court should have considered whether the public entity should have been liable for failing to warn of a dangerous condition on public property. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

KF-103 v. American Family Mutual Insurance: Tenth Circuit Upholds the “Complaint Rule”

May 12, 2016 — Adria Robinson – Colorado Construction Litigation
In Colorado, the “complaint rule” requires insurance carriers to provide a defense to its insured when the allegations contained in the complaint allege any set of facts that may fall within an insurance policy. Some insurers have pushed back on this rule arguing that it may cause an insurer to exercise its duty to defend although the underlying facts ultimately do not fall within the policy. In KF 103-CV, LLC v. American Family Mutual Insurance Company, 2015 WL 6517782, the Tenth Circuit of the United States Court of Appeals upheld the complaint rule. In its decision, the Tenth Circuit cited several Colorado state court rulings recognizing the courts’ intent to incentivize insurers to defend policies that may facially fall within the terms of the policy. Where there is uncertainty about coverage, the Tenth Circuit cited a Colorado Supreme Court case stating, “[t]he appropriate course of action for an insurer who believes that it is under no obligation to defend, is to provide a defense to the insured under the reservation of its rights.” Read the court decision
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Reprinted courtesy of Adria Robinson, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Robinson may be contacted at robinson@hhmrlaw.com

Nevada Judge says Class Analysis Not Needed in Construction Defect Case

October 22, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the National Law Journal, “The Nevada Supreme Court has ruled it neither arbitrary nor capricious for a trial judge to decline to perform a class-action analysis in a lawsuit filed by a homeowners’ association against a general contractor over alleged defects.” Justice Michael Douglas stated, as quoted by the National Law Journal, “The district court was not required to conduct that analysis at this point in the litigation because nothing in the record indicates that the association sought to proceed as a class action.” The general contractor argued that the construction defect law did “not apply because the development’s units were no longer new residences once they were rented as apartments.” However, the justices declared “that the association can pursue its lawsuit for construction defects in common elements owned by multiple units as long as one unit is a new residence.” Read the court decision
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Ninth Circuit Holds that 1993 Budget Appropriations Language Does Not Compel the Corps of Engineers to use 1987 Wetlands Guidance Indefinitely

October 09, 2018 — Anthony B. Cavender - Gravel2Gavel
On September 21, 2018, the U.S. Court of Appeals for the Ninth Circuit decided the case of Tin Cup, LLC v. U.S. Army Corps of Engineers. A divided panel of the Court of Appeals (although all members concurred in the result) held that legislative language in a 1993 appropriations act does not require the U.S. Army Corps of Engineers (Corps) to continue to use its 1987 Clean Water Act (CWA) wetlands guidance beyond 1993. The Ninth Circuit noted that it approaches the interpretation of budget bills somewhat differently. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Critical Updates in Builders Risk Claim Recovery: Staying Ahead of the "Satisfactory State" Argument and Getting the Most Out of LEG 3

December 11, 2023 — Gregory D. Podolak & Cheryl L. Kozdrey - Saxe Doernberger & Vita, P.C.
Builders risk claims routinely involve complicated and aggressive debate about the interplay between covered physical loss and uncovered faulty work. However, denials on this front have recently experienced a noticeable uptick in frequency, creativity, and aggressiveness. The insurer arguments concentrate in two key areas with a common theme – that any damage associated with a construction defect is not covered:

Defective construction does not qualify as a “physical” loss to trigger the insuring agreement; and
Any natural results of defective construction are excluded as faulty workmanship, even with favorable LEG 3 or similar language.

Neither of these arguments should impede access to coverage in the majority of scenarios. To ensure as much, it is incumbent on the savvy policyholder to understand the insurer tactics, be prepared to spot them early, and have thoughtful counter positions at the ready to address them decisively. Reprinted courtesy of Gregory D. Podolak, Saxe Doernberger & Vita, P.C. and Cheryl L. Kozdrey, Saxe Doernberger & Vita, P.C. Mr. Podolak may be contacted at GPodolak@sdvlaw.com Ms. Kozdrey may be contacted at CKozdrey@sdvlaw.com Read the court decision
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New York Federal Court Enforces Construction Exclusion, Rejects Reimbursement Claim

August 03, 2020 — Eric D. Suben - Traub Lieberman
In Crescent Beach Club, LLC v. Indian Harbor Insurance Company, 2020 WL 3414697 (E.D.N.Y. June 22, 2020), the district court considered application of a CGL policy issued to a property owner containing the following exclusion: "This policy does not apply to any ‘bodily injury’, ‘property damage’, ‘personal and advertising injury’, or any other loss, cost, defense fee, expense, injury, damage, claim, dispute or ‘suit’ either arising out of, or related to, any construction, renovation, rehabilitation, demolition, erection, excavation or remedition [sic] of any building and includes planning, site preparation, surveying or other other [sic] construction or development of real property. This exclusion, however, shall not apply to routine maintenance activities." Plaintiff in the underlying action alleged injury while engaged in construction work at the insured’s premises. The information the insurer received was conflicting as to whether plaintiff was demolishing a pergola (excluded) or merely removing vines (not excluded). The insurer reserved its rights accordingly. At his deposition in the underlying action, the plaintiff testified he was in a manlift performing demolition at the time he was injured. The insured’s property manager also testified that the pergola was being demolished. Approximately one month after the depositions, the insurer denied coverage based on the exclusion. Read the court decision
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Reprinted courtesy of Eric D. Suben, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com

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