SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Beyond the COI: The Importance of an Owner's or Facilities Manager's Downstream Insurance Review Program

March 15, 2021 — Hugh D. Hughes, Eric M. Clarkson & Mollie H. Levy - Saxe Doernberger & Vita, P.C.
The risk of bodily injury lawsuits is an unavoidable reality for property owners and facilities managers (“FMs”) of large commercial sites such as universities, malls, office buildings, or stadiums. Any person who steps foot on the property is a potential plaintiff, including students, tenants, customers, contractors, and vendors. Insurance mitigates these risks, but a property owner’s or FM’s risk transfer strategy should include more than their own suite of general liability and other third-party policies. Ensuring additional insured status on a vendor’s or contractor’s policy is also essential to a comprehensive risk transfer strategy. In a functional risk transfer program, a vendor’s or contractor’s general liability insurer should defend and indemnify property owners or FMs as additional insureds (“AIs”) for liability for bodily injury caused, in whole or in part, by the vendor’s or contractor’s operations. When this works as intended, it effectively transfers costs associated with such a lawsuit from the owner or FM to the vendor’s or contractor’s insurer. It also increases the insurance limits available for a loss. Reprinted courtesy of Hugh D. Hughes, Saxe Doernberger & Vita, P.C., Eric M. Clarkson, Saxe Doernberger & Vita, P.C. and Mollie H. Levy, Saxe Doernberger & Vita, P.C. Mr. Hughes may be contacted at HHughes@sdvlaw.com Mr. Clarkson may be contacted at EClarkson@sdvlaw.com Ms. Levy may be contacted at MLevy@sdvlaw.com Read the court decision
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Get Your Contracts Lean- Its Better than Dieting

January 13, 2020 — Brian Perlberg, Esq. - ConsensusDocs
I recently took the AGC Lean Construction Educations Program Units 1-7. After studying diligently, I’m happy to say that I passed the exam and earned my CM-Lean credential. Surprisingly, this makes me the first attorney to earn this distinction out of over 1,200 CM-Lean holders. So why is a construction attorney learning about lean? After all, this was my first exam in 20 years since I took the bar. Well, according to McKinsey Global Institute, construction actually became less productive from 1995 through 2009. When it comes to efficiency, construction still lags significantly behind the manufacturing sector and the overall economy. Construction contracts – what we sign and the way in which we negotiate them, or lack thereof – is a principal reason why construction productivity is stagnant. Contracting under an integrated lean project delivery method (ILPD) and incorporating Lean construction tools is the most powerful means to increase efficiency and add-value to owners. Owners are the client’s end-users of construction projects. ConsensusDocs has taken a leadership role in publishing the first standard ILPD contract which is an integrated form of agreement (IFOA). The ConsensusDocs 300 Integrated Project Delivery (IPD™) provides an off-the-shelf solution to contract utilizing lean tools. Not every owner can or is comfortable using an IPD approach. Consequently, ConsensusDocs produced the ConsensusDocs 305 Construction Lean Construction Addendum last year to provide an option for contracting for lean on Construction Management at-Risk and design-build projects. Some people call this approach IPD-lite or IPD’ish. Some disfavor such terms, because those terms have been used loosely on projects that aren’t very Lean. Read the court decision
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Reprinted courtesy of Brian Perlberg, Esq., Executive Director and Senior Counsel of ConsensusDocs
ConsensusDocs may be contacted at support@consensusdocs.org

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Ensuing Loss Provision Does Not Salvage Coverage

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

Water intrusion caused by a construction defect was not covered under the all risk policy’s ensuing loss provision. See Friedberg v. Chubb & Son, Inc., 2011 U.S. Dist. LEXIS 123582 (D. Minn. Oct. 25, 2011).

Extensive water damage was discovered in the insureds’ home when a small hole in the exterior wall was being repaired. Chubb’s adjuster and an expert found water intrusion causing rot, mold, and damage to the home’s wood framing and insulation. Chubb denied coverage because water intruded through the roof and wall, resulting in gradual deterioration. The insureds filed suit.

The policy excluded coverage for construction defects, but insured "ensuing covered loss unless another exclusion applies."

The court agreed there was a prima facie case for coverage because the home suffered a physical loss.

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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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Nevada Supreme Court Clarifies the Litigation Waiver of the One-Action Rule

September 07, 2017 — Bob L. Olson - Snell & Wilmer Real Estate Litigation Blog
Nevada has a one-action rule which, with limited exceptions, requires a creditor seeking to recover a debt secured by real property to proceed against the security first prior to seeking recovery from the debtor personally. In the event that a law suit is filed in violation of the one-action rule, final judgment may be entered in favor of the creditor but that judgment “releases and discharges the mortgage or other lien.” NRS 40.455(3). Nevada law further provides that, with the exception of certain guaranties, any provision in an agreement relating to the sale of real property which contains a waiver of Nevada’s anti-deficiency laws may not be enforced by a court because doing so violates Nevada’s public policy. NRS 40.453. Nevada law also addresses when the one-action rule may be waived in litigation. In the author’s view, the governing statute, NRS 40.435 is ambiguous. Section 2 of that statute states that if the one-action rule is timely interposed as an affirmative defense, the action must either be dismissed without prejudice or continued to allow the creditor to file amended pleadings to convert the action into one which does not violate the one-action rule. This suggests that the one-action rule must be asserted as an affirmative defense in the debtor’s answer to the complaint or it is waived by the debtor. The first sentence of section 3 of the statute, however, seems to suggest that the debtor has up until the entry of a final judgment to waive the one-action rule by stating: “[t]he failure to interpose, before the entry of a final judgment, the provisions of NRS 40.430 [the one-action rule] as an affirmative defense in such a proceeding waives the defense in that proceeding.” Read the court decision
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Reprinted courtesy of Bob L. Olson, Snell & Wilmer
Mr. Olson may be contacted at bolson@swlaw.com

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Colorado Trench Collapse Kills Two

July 30, 2019 — Engineering News-Record
Federal safety officials are investigating the April 16 collapse of a trench that killed two construction workers in northern Colorado. The two men—Cristopher Lee Ramirez, 26, and Jorge Baez Valadez, 41—were installing utilities at a site being developed by D.R. Horton Express Homes in Windsor, Colo., when they were trapped by soil and rocks in the 15-ft-deep trench. The rescue attempt lasted seven hours and involved small shovels because of fears of a second collapse. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

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Tips for Contractors Who Want to Help Rebuild After the California Wildfires

November 02, 2017 — Garret Murai - California Construction Law Blog
I received a call from one of my contractor clients this past week to see what he could do to help those affected by California’s North Bay fires. The North Bay fires are the deadliest and most destructive wildfires in California’s history. To date, the fires have claimed 42 lives, burned more than 200,000 acres of land, destroyed an estimated 8,400 structures and likely damaged tens of thousands more. By comparison, the state’s second most deadly wildfire, the Oakland Hills fire of 1991, claimed the lives of 25 people, burned 1,600 acres of land, and destroyed 2,900 structures. Rebuilding costs for the North Bay fires, according to the California Insurance Commissioner, are expected to top $1 billion. For those with insurance, insurance experts say that the rebuilding process can take two years or more for those whose homes and businesses were destroyed. For those whose homes and businesses were fortunate enough only to be damaged, rebuilding efforts are already underway. 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

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Broker Not Liable for Failure to Reveal Insurer's Insolvency After Policy Issued

March 28, 2012 — Tred R. Eyerly - Insurance Law Hawaii

Faced with an issue of first impression in California, the Court of Appeals held that a broker was not liable for failing to reveal the insurer's insolvency occurring after issuance of the policy. Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Ins. Serv. West, Inc., 2012 Cal. App. LEXIS 232 (Cal. Ct. App. Feb. 28, 2012).



The developer for a construction project in downtown San Diego retained Aon as its broker to secure coverage. Aon procured a general liability policy for the project with Legion Indemnity Company. Legion was solvent when it issued the policy.



The developer hired Pacific Rim (“PacRim”) as one of several subcontractors on the project. The parties entered into a contract in which the developer agreed to provide PacRim with liability insurance through an Owner Controlled Insurance Program (“OCIP”). Aon was not a party to the contract and PacRim was never its client. PacRim, however, enrolled in the OCIP by contacting Aon and providing all necessary paperwork.

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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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Manhattan Luxury Condos Sit on Market While Foreign Buyers Wait

January 21, 2015 — Prashant Gopal, Oshrat Carmiel and John Gittelsohn – Bloomberg
Manhattan real estate agent Lisa Gustin listed a four-bedroom Tribeca loft for $7.45 million in October, expecting a quick sale. Instead, she cut the price this month by $550,000. “I thought for sure a foreign buyer would come in,” said Gustin, a broker at Brown Harris Stevens who is still marketing the 3,800-square-foot (353-square-meter) apartment at 195 Hudson St. “So many new condos are coming up right now. They’ve been building them for the past few years and now they’re really hurting the resales.” Mr. Gopal may be contacted at pgopal2@bloomberg.net; Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net; Mr. Gittelsohn may be contacted at johngitt@bloomberg.net Read the court decision
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Reprinted courtesy of Prashant Gopal, Oshrat Carmiel and John Gittelsohn, Bloomberg

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