Seattle Washington Building Expert Directory

Finding Plaintiff Intentionally Spoliated Evidence, the Northern District of Indiana Imposes Sanction

March 14, 2018 — Shannon M. Warren – The Subrogation Strategist
On January 23, 2018, the Northern District of Indiana issued a decision that clarifies what constitutes spoliation of evidence under Indiana law. In Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 U.S. Dist. LEXIS 10141 (N.D. Ind.), the defendant filed a motion for sanctions, alleging that the plaintiff intentionally spoliated critical evidence. The defendant sought dismissal of the action, asserting that the plaintiff intentionally discarded and lost important physical evidence within hours of a fire that occurred while the defendant’s employees were performing work at its facility. The decision underscores the importance of taking immediate action to properly identify and secure potentially material evidence in order to satisfy ones duty to preserve pre-suit evidence and avoid any spoliation defenses and associated sanctions. In Arcelormittal, the court initially considered whether to apply state or federal law when analyzing a litigant’s duty to preserve pre-suit evidence and determine if that party committed spoliation. Since the case was brought in federal court based on diversity jurisdiction, the court held that Indiana state law governed the spoliation analysis. As noted by the court, under Indiana state law, “the intentional destruction, mutilation, altercation, or concealment of evidence” is considered to be spoliation. Thus, under Indiana law, a party who knew or should have known that litigation was imminent “may not lose, destroy or suppress material facts or evidence.” The plaintiff argued that Indiana law requires a showing of improper purpose or bad faith to establish that a litigant spoliated evidence. The Arcelormittal court rejected the plaintiff’s argument. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

Construction Law Alert: Unlicensed Contractors On Federal Projects Entitled To Payment Under The Miller Act

May 07, 2014 — Steven M. Cvitanovic and Jessica M. Lassere Ryland - Haight Brown & Bonesteel, LLP
As a matter of first impression, the Ninth Circuit Court of Appeals in Technica LLC ex rel. U.S. v. Carolina Cas. Ins. Co., 12-56539, 2014 WL 1674108 (9th Cir. Apr. 29, 2014), allowed an unlicensed subcontractor to recover from a prime contractor for unpaid services relating to a federal construction project under a federal Miller Act claim. California law otherwise prevents unlicensed contractors from recovering for unpaid work on non-federal projects as a penal measure intended to encourage contractors to maintain a valid license at all times. Technica LLC (“Technica”) worked as a sub-subcontractor on a large federal fence replacement project (the “Project”). Over the course of a year, Technica supplied nearly a million dollars worth of labor, materials, and services for the Project. However, Technica received only $287,861.81 in partial payments for its work. Technica proceeded to file suit in district court against the prime contractor Candelaria Corporation (“Candelaria”) and its payment surety Carolina Casualty Insurance Company (“CCIC”) under the Miller Act to recover amounts owed to it on the subcontract against the payment bond. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and Jessica M. Lassere Ryland, Haight Brown & Bonesteel, LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Lassere Ryland may be contacted at jlassere@hbblaw.com Read the court decision
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Court of Appeal: Privette Doctrine Does Not Apply to Landlord-Tenant Relationships

March 20, 2023 — Garret Murai - California Construction Law Blog
We’ve talked a fair bit about the Privette doctrine which provides for a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. We’ve also talked about its two exceptions: (1) The Hooker exception which provides for liability if the hirer retained control over the work being performed, negligently exercised that control, and its negligent exercise of that control contributed to an employee’s injury; and (2) the Kinsman exception which provides for liability if the hirer knew or should have known of a concealed hazard, that the hired party did not know of and could not have reasonably discovered, and the hirer failed to warn the hired party of the hazard. The Privette doctrine is not the end all be all of landowner liability, however, as discussed in Ramirez v. PK 1 Plaza 580 SC LP, 85 Cal.App.5th 252 (2022). Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

When Business is Personal: Negligent and Intentional Interference Claims

October 24, 2023 — Kathryne Baldwin & Jose L. Parra - Wilke Fleury
The nature of business is personal. Changes in personnel, project outlines, or business models cost businesses time and money to bring about, ward against, or stop. Any individual involved in business will likely have seen claims for interference with relationships, either prospective or contractual. But, what do those claims really mean and how viable are they in a capitalist society where free markets are held in such high esteem? Defendants in lawsuits will typically see these claims pleaded as one of three major categories: intentional interference with prospective economic advantage, intentional interference with contractual relations or contract, or negligent interference with prospective economic advantage. As the name would suggest, the first two are more concrete and require a showing that the bad actor was aware of the existence of a contract or relationship and took affirmative steps to interfere with that relationship. The latter is more nebulous and looks at business relationships that were likely to occur and are based on a “should have known” standard. Reprinted courtesy of Kathryne E. Baldwin, Wilke Fleury and José L. Parra, Wilke Fleury Ms. Baldwin may be contacted at kbaldwin@wilkefleury.com Mr. Parra may be contacted at jparra@wilkefleury.com Read the court decision
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Hawaii Federal District Court Remands Coverage Dispute

June 15, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Accepting the insured's amended complaint, the federal district court of Hawaii remanded the coverage action to state court. Hale v. Lloyd's, London, 2020 U.S. Dist. LEXIS 9061 (D. Haw. Jan. 17, 2020). Hale purchased a policy for his home in Hilo, Hawaii, from Defendant Pyramid Insurance Centre. The policy was memorialized by a Lloyd's Certificate issued by Defendant Lloyd's. On September 19, 2017, Hale entered Chapter 7 Bankruptcy. Included in the bankruptcy proceeding was Hale's home and a secured home mortgage loan now owned by Defendant Specialized Loan Servicing, LLC. The Bankruptcy Court issued a discharge order on January 18, 2018. On May 9, 2018, Hale's home was destroyed, being covered with lava from the Kilauea volcano eruption. Hale filed a claim with Lloyd's based upon the loss of his home. The claim was denied. Subsequently, however, Lloyd's issued a check for the full amount of the policy. Both Hale and Specialized Loan were listed as payees on the check. 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

Haight’s San Diego Office is Growing with the Addition of New Attorneys

June 21, 2024 — Haight Brown & Bonesteel LLP
The San Diego office has recently added two attorneys to the team. Amanda McKechnie has joined the Construction Law Practice Group. Amanda has extensive experience representing national developers, owners, general contractors, design professionals and subcontractors in complex construction litigation. Arash Yahyai has joined the Construction Law and General Liability Practice Groups. Arash focuses on defending actions involving complex construction defect, insurance defense, premises liability, product liability, catastrophic personal injury and other general liability related cases. Read the court decision
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Reprinted courtesy of Haight Brown & Bonesteel LLP

Finding Insurer's Declaratory Relief Action Raises Unsettled Questions of State Law, Case is Dismissed

November 05, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court for the District of Hawaii dismissed the insurer's action for declaratory relief because it raised issues that were unsettled by Hawaii courts. Association of Apartment Owners of Lahaina Residential Condominium, et al., No. 1-24-cv-00075-JAO-BMK, Order Granting AOAO's Motion to Dismiss (D. Haw. Aug. 29, 2024). The case addressed whether a property damage exclusion barred coverage over an owner's claim that a condominium association and its property manager failed to obtain adequate insurance before the condominium's property was damaged by the Maui wildfire in August 2023. Great American filed suit seeking a declaration that it had no duty to defend or indemnify the Association and the property manage, Quam Properties Hawaiiana, Inc., in connection with a demand for mediation submitted to the Association and Quam on behalf of one of the owners. 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

A Guide to California’s Changes to Civil Discovery Rules

April 29, 2024 — Lewis Brisbois Newsroom
San Diego, Calif. (April 10, 2024) - California legislators have changed the rules of discovery in civil cases through the passage of amendments to Code of Civil Procedure sections 2016.090 and 2023.050, effective January 1, 2024. Section 2016.090 creates a new set of rules for civil litigators in cases filed on or after January 1, 2024, which permits any party to the litigation to demand initial disclosures be provided within 60-days. Such a demand can be made any time after a party has filed a responsive pleading, including a demurrer or motion to strike. Notably, this rule requires production of all information relevant to any causes of action that are pled at the time of the demand, meaning the parties may be required to disclose information related to claims that are being challenged on demurrer or a motion to strike, such as claims for punitive damages. This statute is only implicated when one of the parties to the action makes a demand and may be modified by stipulation of the parties. Read the court decision
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Reprinted courtesy of Lewis Brisbois

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