Seattle Washington Building Expert Directory

UK Construction Defect Suit Lost over One Word

October 16, 2013 — CDJ STAFF
In the UK, be careful what you tell your insurer; the Court of Appeal has upheld the legality of basis clauses. As Paul Lewis and Janetta Gibbs of Herbert Smith Freehills LLP explain, “a basis clause is a provision set out in the proposal form or in the insurance contract itself, to the effect that all or any of the answers to the questions in the proposal shall form the basis of the contract of insurance.” The catch, as they point out, is that “should any of those answers — whether material to the risk or not — prove to be untrue, the insurer may repudiate the policy and treat itself as never having been on risk.” There is a move in the UK to abolish the use of basis clauses in business insurance, but currently they are still legal. This came up in a construction defect case covering latent defects in a public housing project. The contract between the owner, Genesis Housing Association Limited, and the contractor, Time and Tide (Bedford) Ltd, required TT Bedford to indemnify Genesis if it became insolvent. In the contract with the insurer, representatives of Bedford and Genesis referred to the contractor as “TT Construction.” While the courts concluded that Bedford and Genesis were not guilty of misrepresentation or intent to defraud, they did note that neither party thought the firm’s name was “TT Construction.” Therefore, over the failure to name the builder correctly, the court found that the insurance contract was invalid. Read the court decision
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Eighth Circuit Affirms Finding of Bad Faith, Award of Costs and Prejudgment Interest

October 25, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Eighth Circuit affirmed the district court's finding of bad faith and award to the insured of taxable costs and prejudgment interest. Selective Ins. Co. v. Sela, 2021 U.S. App. LEXIS 26062 (8th Cir. Aug. 30, 2021). The insured suffered two hail storms that damaged his home. In 2010, the first storm caused over half a million dollars in loss. Before submitting a claim to his original insurer or beginning any repairs, the insured secured a new policy with Selective. The policy did not exclude pre-existing damage, it did preclude coverage if the insured "willfully and with intent to defraud, concealed or misrepresented any material fact or circumstance relating to the insurance." Before issuing the policy, Selective appraised the property and assigned a $1.6 million value to the home. The insured then filed a claim with his original insurer and received $510,787.23 for actual cash value of his loss. Neither the terms of this settlement nor this new policy with Selective required the insured to repair all of the 2010 damage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Municipal Ordinances Create Additional Opportunities for the Defense of Construction Defect Claims in Colorado

August 22, 2022 — Ricky Nolen - Colorado Construction Litigation Blog
Municipal ordinances may provide additional defenses for construction professionals where state law does not provide sufficient protection for Colorado’s builders. Colorado state law can be a minefield of potential liability for construction professionals. Even though the state legislature has stated that it must “recognize that Construction defect laws are an existing policy issue that many developers indicate adds to for-sale costs,” the legislature has remained hesitant to provide any meaningful protection from construction defect claims, resulting in almost unlimited exposure for Colorado’s construction professionals. Given this background of state laws that do not go far enough in protecting Colorado’s construction professionals, it may be fruitful to review municipal ordinances for new defenses and to temper state law developments applicable to construction defect claims. This is an area of law that is only just developing in Colorado. In fact, the ordinances discussed in this article were only passed in the last two years with many cities only adopting the present versions of the ordinances in 2021. The two model ordinances discussed below are potentially helpful in three ways. The first model ordinance gives construction professionals a right to repair defects in the multi-family construction and in the common interest community context. The second model ordinance is helpful in two ways. First, it establishes that homeowners associations may not unilaterally circumvent ADR protections included in the original declarations for such communities.[1] Second, the ordinance reduces the risk that strict liability will be imposed on a construction professional where a building code is violated. Read the court decision
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Reprinted courtesy of Ricky Nolen, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Nolen may be contacted at nolen@hhmrlaw.com

GA Federal Court Holds That Jury, Not Judge, Generally Must Decide Whether Notice Was Given “As Soon as Practicable” Under First-Party Property Damage Policies

November 01, 2021 — Edward M. Koch & Lynndon K. Groff - White and Williams
Insurance policies covering first-party property damage often require insureds to notify insurers of a loss “as soon as practicable.” Where an insured may or may not have given notice “as soon as practicable,” the issue arises as to who should determine whether the insured complied with this requirement: the judge or the jury? On October 6, 2021, the United States District Court for the Middle District of Georgia addressed this issue in Vintage Hospitality Group LLC v. National Trust Insurance Company, Case No. 3:20-cv-90-CDL, 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). In Vintage Hospitality, a July 2018 hailstorm damaged the roof of a hotel owned by the policyholder. The policyholder did not discover leaks from the hotel roof until two months later, in September 2018. The policyholder, not realizing that the hailstorm had caused the leaks, unsuccessfully attempted to repair the leaks. Eventually, in February 2020—19 months after the hailstorm and 17 months after the policyholder discovered the leaks—the policyholder hired a construction company to evaluate the roof. It was not until then that the policyholder learned that the hotel had sustained hail damage from the July 2018 storm. The policyholder notified its July 2018 first-party property damage insurer a few days later. Reprinted courtesy of Edward M. Koch, White and Williams and Lynndon K. Groff, White and Williams Mr. Koch may be contacted at koche@whiteandwilliams.com Mr. Groff may be contacted at groffl@whiteandwilliams.com Read the court decision
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Broker's Motion for Summary Judgment on Negligence Claim Denied

July 30, 2018 — Tred R. Eyerly - Insurance Law Hawaii
After being sued for negligence for failing to secure proper coverage, the broker was unsuccessful in seeking dismissal by way of summary judgment. Liverman Metal Recycling, Inc. v. Arthur J. Gallagher & Co., 2018 U.S. Dist. LEXIS 87957 (E.D. N.C. May 25, 2018). Plaintiffs were two companies, Empire and Liverman, that processed scrap metal. They were in the process of merging under a management plan by which Empire would acquire Liverman. As part of the plan, Empire's employees were moved on to Liverman's payroll processing system. Concurrently, Liverman renewed its workmen's compensation policy. Defendant Arthur J. Gallagher & Company, an insurance broker, handled the renewal with the insurer, Bridgefield Insurance Company. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Manhattan Developer Breaks Ground on $520 Million Project

November 18, 2011 — CDJ STAFF

Rebuilding an area of Midtown West that has been condemned for decades, the Gotham Organization has broken ground on a 1,200-unit project that will include housing for a variety of household incomes and a school. One unit of the project will be affordable housing for families of annual incomes up to $40,000. Another will be for middle-income households. Additionally, there will be a 31-story tower with 550 luxury units.

The site CityBiz quotes Mayor Michael Bloomberg, as saying that the project “will grow our economy by creating 2,900 construction-related jobs.” The president of the Gotham Organization, David L. Picket notes that it will “create hundreds of new jobs, generate millions of dollars in revenue for the construction industry, contribute towards the building of a new primary, and provide homes to thousands of New Yorkers.”

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Florida Court of Appeals Rejects Insurer’s Attempt to Intervene in Underlying Lawsuit to Submit Special Interrogatories

October 09, 2018 — Jeremy Macklin - TLSS Insurance Law Blog
On August 10, 2018, the Florida Court of Appeals for the Second District upheld a trial court’s dismissal of an insurance company’s intervention in a tort lawsuit brought against its insured for the purposes of submitting special interrogatories and verdict forms. In Houston Specialty Ins. Co. v. Vaughn, 2018 Fla. App. LEXIS 11197, 2018 WL 3795785 (Fla. 2d DCA Aug. 10, 2018), the insured, All Florida Weatherproofing and Construction, Inc. (“All Florida”) provided pressure washing, roof coating, and other roof-related services. Houston Specialty issued a general liability policy to All Florida. In 2012, a worker fell off a roof while applying protective coating on behalf of All Florida. The worker and his family sued All Florida in connection with the worker’s injuries. Read the court decision
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Reprinted courtesy of Jeremy Macklin, Traub Lieberman Straus & Shrewsberry LLP
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

The Association of Southern California Defense Counsel (ASCDC) and the Construction Defect Claims Managers Association (CDMA) Annual Construction Defect Seminar

December 04, 2013 — CDJ STAFF
The Association of Southern California Defense Counsel (ASCDC) and the Construction Defect Claims Managers Association (CDMA) Jointly Present the 2013 Construction Defect Seminar and Holiday Party to be Held Thursday, December 5, at the Hilton Hotel, Costa Mesa Professional development activities will include panel discussions including “What Happened to Simple HOA Actions – Litigating Commercial Projects,” a roundtable discussion by Ross Hart, Keith Koeller, Alex Robertson, Les Robertson, Todd Schweitzer, Wendy Wilcox, and Brian D. Kahn. A timely discussion of California’s “right to repair” laws “SB800 – Is It Still Worth Fighting For?,” will be presented by Nick Cammarota, Timothy Earl, Luke Ryan, Dave Simons, Dave Stern, John Terry, and Adrienne Cohen is also on the the agenda.. Additionally, Assemblyman Donald P. Wagner will serve as the event’s Special Guest Speaker. Bert L. Howe & Associates, Inc. is pleased to return this year as an event sponsor. BHA will be exhibiting our latest inspection data collection system and forensic analysis platforms newly optimized for the new iOS 7. Visitors of the BHA exhibit booth can enter into our drawing for a 16 GB iPad Air with WiFi. Professional development activities will be followed by a holiday party and reception honoring the Orange County Judiciary. The reception will be hosted by Glenn Barger, Adrienne Cohen, and Brian Kahn. It will place from 5:30 p.m. through 7.00 p.m. For further information for the event, please visit http://www.ascdc.org/Events.asp. Read the court decision
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