Seattle Washington Building Expert Directory

COVID-19 Win for Policyholders! Court Approves "Direct Physical Loss" Argument

October 12, 2020 — Gregory D. Podolak & Christine Baptiste-Perez - Saxe Doernberger & Vita
Late last week, a Missouri federal district court provided a significant victory for insurance policyholders for COVID-19 losses. In Studio 417, Inc. v. The Cincinnati Insurance Company 6:20-cv-03127-SRB (W.D. MO, So. Div., Aug. 12, 2020), the Court was called upon to decide whether allegations involving the presence of COVID-19 in and around physical structures qualify as “direct physical loss or damage” to covered property. For those actively monitoring the COVID-19 insurance coverage litigation landscape, this has been a central question – and hotly contested debate – in virtually all first-party property and business interruption claims. Through a detailed and well-reasoned discussion, the Court answered the question with an emphatic “Yes.” The Plaintiffs – a proposed class of hair salons and restaurants - purchased “all-risk” property insurance policies (the “Policies”) from Cincinnati. The Policies provide that Cincinnati would pay for “direct ‘loss’ unless the ‘loss’ is excluded or limited.” They also defined a “Covered Cause of Loss” as “accidental [direct] physical loss or accidental [direct] physical damage.” The Policies did not contain a virus exclusion. Anecdotally, Cincinnati has been vocal about the general lack of virus exclusions on its standard forms, having recently publicized that the company considers such exclusions “unnecessary” because, in its view, “a virus does not produce direct physical damage or loss to property.” From Cincinnati’s perspective, the insuring agreement is not triggered by these events, so there’s no need to analyze exclusions. Cincinnati relied heavily on that analysis in this case. Reprinted courtesy of Gregory D. Podolak, Saxe Doernberger & Vita, P.C. and Christine Baptiste-Perez, Saxe Doernberger & Vita, P.C. Mr. Podolak may be contacted at gdp@sdvlaw.com Ms. Baptiste-Perez may be contacted at cbp@sdvlaw.com Read the court decision
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“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties

September 30, 2019 — Rahul Gogineni - The Subrogation Strategist
In Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA). When dealing with claims involving construction projects, there may exist multiple contracts between various parties that contain waivers of subrogation. The enforceability of such waivers can be limited by several factors, including the jurisdiction of the loss, the language of the waiver and the parties to the contract. In Gables Construction, Upper Rock, Inc. (Upper Rock), the owner, contracted with a general contractor, Gables Construction (GCI) (hereinafter referred to as the “prime contract”), to construct an apartment complex. After someone stole a bobcat tractor from the jobsite, Gables Residential Services Incorporated (GRSI), GCI’s parent company, signed a vendor services agreement (VSA) with Red Coats to provide a fire watch and other security services for the project. Read the court decision
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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

Fifth Circuit Concludes Government’s CAA Legal Claims are Time-Barred But Injunctive-Relief Claims are Not

November 28, 2018 — Anthony B. Cavender - Gravel2Gavel
In another recent U.S. Court of Appeals for the Fifth Circuit decision, on October 1, 2018, the Fifth Circuit affirmed, in part, the District Court’s ruling that the general federal statute of limitations, 28 U.S.C. § 2462, required the dismissal of the government’s civil enforcement action in the case of U.S., et al., v. Luminant Generation Co., LLC, et al. The Fifth Circuit agreed that the statute barred the imposition of any civil fine for the alleged unlawful construction operations regarding the modification of major emitting facilities contrary to Section 7475(a) of the Clean Air Act (CAA). But, the Fifth Circuit remanded the injunctive-relief claims to the District Court for further consideration. 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

Contractors Struggle with Cash & Difficult Payment Terms, Could Benefit From Legal Advice, According to New Survey

December 30, 2019 — Christopher G. Hill - Construction Law Musings
Guest Post Friday is back with a post from my pal Scott Wolfe. Scott is the founder and CEO of Levelset, which is used by thousands of contractors to make payments fast and easy. Scott, previously a construction attorney himself, founded Levelset to even the $1 trillion construction playing field, and is on a mission to make payments less stressful for contractors and suppliers across the globe. Getting paid in construction is slow, hard, and stressful, according to a survey conducted by Levelset & TSheets by Quickbooks that polled over 500 construction professionals. Half of the contractors surveyed complained that they did not get paid on time, which caused serious cash flow issues that negatively impacted their customer relationships and frequently forced them to dip into personal savings and lines of credit to keep their business afloat. View the 2019 Construction Payment Report here. Unfortunately, since the construction industry’s slow payment problems are well-documented, this sad reality isn’t too surprising. The findings, though, do demonstrate a massive cash crunch for the 1.5 million+ contractors in the United States, and underscores the importance of having legal help and counsel from a construction lawyer before, during, and after jobs. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Vertical vs. Horizontal Exhaustion – California Supreme Court Issues Ruling Favorable to Policyholders

May 11, 2020 — Alan Packer & James Hultz - Newmeyer Dillion
For years, when faced with damage or injury spanning several policy periods, excess general liability insurers have argued that all potentially applicable underlying policies must be exhausted before the excess drops down to provide coverage (“horizontal exhaustion”). Insureds, on the other hand, insist that they are entitled to immediately access an excess policy for any given policy year, if that year’s underlying policy has exhausted (“vertical exhaustion”). Vertical exhaustion not only enables insureds to directly tap into the excess insurance for which they paid substantial premiums, but also enables the insured to moderate risk given that different lower level policies might (1) be needed for other claims, (2) have larger self-insured retentions, or (3) have other less favorable coverage provisions. Allowing an insured to proceed via vertical exhaustion would also eliminate the heavy administrative and logistical burden that could result from having to pursue and exhaust all underlying coverage on multi-year claims. In Montrose Chemical Corp. v. Superior Court, 2020 WL 1671560 (April 6, 2020), the California Supreme Court has come down in favor of policyholders and vertical exhaustion. The Montrose case involved contamination that allegedly occurred between 1947 and 1982 and different liability insurance towers (comprised of primary and excess layers) for each year. The insured, Montrose, maintained a tower of insurance coverage, year by year, and faced claims asserting damage that spanned several decades. Montrose sought coverage from excess insurers under a vertical exhaustion approach. Not surprisingly, Montrose’s excess insurers insisted that horizontal exclusion was required and that Montrose was required to exhausted all other policies with lower attachment points in every single involved policy period. The California Supreme Court ruled in Montrose’s favor, holding that the insured may insist upon full coverage from an excess insurer once the layer directly below it has exhausted. The Court reasoned that the burden of spreading the loss among insurers is one that is appropriately borne by insurers, not insureds. Reprinted courtesy of Alan H. Packer, Newmeyer Dillion and James S. Hultz, Newmeyer Dillion Mr. Packer may be contacted at alan.packer@ndlf.com Mr. Hultz may be contacted at james.hultz@ndlf.com Read the court decision
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London Shard Developer Wins Approval for Tower Nearby

November 05, 2014 — Neil Callanan - Bloomberg
Sellar Property Group, developer of the Shard in London, won local government approval to build a 26-story residential tower close to the skyscraper on the south bank of the River Thames. The council for the Southwark borough voted in favor of the 148-apartment project, which also includes a 16-story tower, at a meeting yesterday, Sellar spokesman Baron Phillips said by e-mail. The project, like the Shard, will be developed in a partnership with the state of Qatar. Developers plan to construct more than 25,000 luxury properties in London worth more than 60 billion pounds ($96 billion) over the next decade, EC Harris said in an Oct. 7 report. The homes approved yesterday at the Fielden House site are expected to sell for about 800,000 pounds each, according to a filing by the borough. Read the court decision
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Reprinted courtesy of Neil Callanan, Bloomberg
Mr. Callanan may be contacted at ncallanan@bloomberg.net

Newmeyer Dillion Named 2020 Best Law Firm in Multiple Practice Areas by U.S. News-Best Lawyers

November 24, 2019 — Newmeyer Dillion
Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that U.S. News-Best Lawyers® has recognized the firm in its 2020 "Best Law Firms" rankings, with six of its practice areas earning the highest ranking possible - Tier 1 in the Orange County Metro area. The practices recognized include Commercial Litigation, Construction Law, Insurance Law, Litigation - Construction, Litigation - Real Estate and Real Estate Law. Firms included in the 2020 "Best Law Firms" list have been recognized by their clients and peers for their professional excellence. Firms achieving a Tier 1 ranking have consistently demonstrated a unique combination of quality law practice and breadth of legal expertise. “We are grateful that the firm’s clients and our peers again recognize our personalized approach to legal service. We strive to provide creative solutions that propel our clients’ businesses forward,” said Managing Partner Paul Tetzloff. To be eligible for the “Best Law Firms” ranking, a firm must have at least one attorney recognized in the current edition of The Best Lawyers in America for a specific practice area. Best Lawyers recognizes the top 4 percent of practicing attorneys in the U.S., selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers. ABOUT NEWMEYER DILLION For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of corporate, privacy & data security, employment, real estate, construction, insurance law and trial work, Newmeyer Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com Read the court decision
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Cultivating a Company Culture Committed to Safety, Mentorship and Education

March 19, 2024 — David Frazier - Construction Executive
The construction industry is aging. Valuing the significance of promoting a culture that enhances safety, mentorship and educational opportunities is essential to recruiting and retaining top talent to keep the industry thriving. According to the U.S. Department of Labor, one in five worker deaths in the U.S. occurs in the construction industry. Additionally, construction workers are statistically at a higher risk for mental-health issues than virtually every other profession. According to a study conducted by CIRP, 83% of construction workers have struggled with mental-health disorders. Today’s leaders must be dedicated to listening to employees' voices to shape the construction industry, as future leaders will be formed by a culture committed to employees' mental and physical health, safety, professional growth and overall workplace culture. Reprinted courtesy of David Frazier, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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