Seattle Washington Building Expert Directory

New York Labor Laws and Action Over Exclusions

February 01, 2021 — Theresa A. Guertin & Ashley McWilliams - Saxe Doernberger & Vita, P.C.
One of the most important methods for shifting risk in the construction context is insurance coverage. Upstream parties such as owner/developers and general contractors typically require that their downstream subcontractors who perform work on their properties or projects bring specific insurance to the table. These insurance requirements have a twofold purpose: protect the upstream parties, through additional insured coverage, from liabilities caused by the subcontractor; and protect the downstream parties by ensuring that they have adequate insurance for their own potential liabilities. In New York, subcontractor insurance coverage can have some surprising terms which frustrate risk transfer. Numerous policies contain “Action Over” exclusions, which bar coverage for one of the most significant exposures faced by owner-developers and general contractors: bodily injury lawsuits brought by subcontractor employees. It is critical that upstream parties understand the unique impact of New York’s labor laws on the insurance market and be prepared to identify and request removal of Action Over exclusions on subcontractor insurance policies. Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C. and Ashley McWilliams, Saxe Doernberger & Vita, P.C. Ms. Guertin may be contacted at TGuertin@sdvlaw.com Ms. McWilliams may be contacted at AMcWilliams@sdvlaw.com Read the court decision
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Engineer TRC Fends Off Lawsuits After Merger

August 17, 2017 — Scott Van Voorhis - Engineering News-Record
In the wake of its merger with an investment fund, TRC Cos. has been busy swatting away pesky shareholder lawsuits driven by law firms who specialize in such litigation. Read the court decision
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Reprinted courtesy of Scott Van Voorhis, ENR
ENR may be contacted at ENR.com@bnpmedia.com

Coverage for Faulty Workmanship Found In South Dakota

October 11, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The South Dakota Supreme Court found coverage in favor of the general contractor who was sued for alleged faulty workmanship. Owners Ins. Co. v. Tibke Constr., Inc., 2017 S.D. LEXIS 106 (S.D. Aug. 23, 2017). The homeowners hired Tibke Construction Inc. as general contractor to build a new house. Tibke hired Jerry's Excavating Inc. as a subcontractor to prepare the soil and perform excavation work. After the project was completed, the homeowners sued Tibke and Jerry's Excavating for negligent construction and breach of contract. The homeowners alleged that Jerry's Excavating failed to conduct soil-compaction testing before construction. They alleged that the home was built upon highly expansive soils, resulting in damage to the home by "excessive settlement, cracking, structural unsoundness and other damages." The complaint further alleged that damages existed only on portions of the home not worked on by Jerry's Excavating. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

U.S. Firm Helps Thais to Pump Water From Cave to Save Boys

August 14, 2018 — Dan Murtaugh - Bloomberg
Like much of the world, Patrick Decker has been engrossed in the saga of 12 boys and their soccer coach who became trapped in a flooded cave in Thailand. Unlike most, Decker is in a position to do something about it. As chief executive officer of Xylem Inc., one of the world’s top water technology firms, Decker spent much of last week reaching out to Thai officials and mobilizing his company of 17,000 employees to help. Decker said he sent four engineers to the cave site, and they assisted rescuers by boosting pumping power 40 percent. Thai Navy SEALs and international cave diving experts extracted eight boys over Sunday and Monday. Read the court decision
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Reprinted courtesy of Dan Murtaugh, Bloomberg

Defense Owed to Insured Subcontractor, but not to Additional Insured

December 13, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Affirming the district court, the Eleventh Circuit agreed that the insured subcontractor was entitled to a defense against claims of faulty workmanship, but no defense was owed to the additional insured subcontractor. Cincinnati Spec. Underwriters Ins. Co. v. KNS Group, LLC, 2022 U.S. App. LEXIS 27949 (11th Cir. Oct. 6. 2022). The general contractor on a project to build a casino and hotel hired GM&P Consulting and Glazing Contractors, Inc. (GM&P) to provide exterior glazing for the building. GM&P enlisted subcontractor KNS to assist it by glazing glass and installing window walls. KNS agreed to provide commercial general liability and other types of insurance, and to indemnify GM&P for liability for damages caused by any of its acts or omissions. KNS acquired a policy from Cincinnati. The casino filed suit against the general contractor and subcontractors, alleging that GM&P installed defective "Glass Facade" and improperly installed windows. GM&P filed a Hird-party complaint against KNS due to KNS's alleged defective construction of the casino. 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

Homeowner Survives Motion to Dismiss Depreciation Claims

September 23, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion to dismiss claims for improper claims handling when considering implementation of depreciation was denied. Morrison v. Indian Harbor Ins. Co, et al., 2024 U.S. Dist. LEXIS 115664 (S. D. W. Va. July 1, 2024). Plaintiff's home suffered flood damage. The house was insured by Indian Harbor a surplus lines carrier that offered specialized and high risk property policies in West Virginia. Surplus lines policies were procured in West Virginia through a "surplus lines licensee." Here, Neptune Flood Inc. was the surplus lines licensee broker for Indian Harbor. Peninsula Insurance Bureau, Inc. was an administrator and loss adjuster involved in the claim. After the flood, Plaintiff notified defendants of the damage and immediately cleaned and repaired the house. Plaintiff asserted that Neptune was given notice of the loss and one of its agents made recommendations regarding the coverage available and conveyed the information to Peninsula and Indian Harbour. Plaintiff claimed that defendants misrepresented his policy coverage and made incorrect adjustments for depreciation based on Neptune's statements and recommendations. 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

Defective Stairways can be considered a Patent Construction Defect in California

September 24, 2014 — William M. Kaufman – Construction Lawyers Blog
Stairs are not safe! At least the Court of Appeal in the Second Appellate District of California doesn’t think so. A rail station in Los Angeles was completed by the Los Angeles County Metropolitan Transportation Authority (“MTA”) in 1993. The rail station was part of the development of the Southern California Rapid Transit District Metro Rail Project. In 2011, the plaintiff fell on a stairway at the station. In August 2012, Plaintiff sued the MTA for dangerous condition of public property, statutory liability, and negligence. Among other defects, plaintiff alleged the banister of the stairwell was “too low” and the stairwell “too small” given the number, age, and volume of people habitually entering and exiting the rail station. In addition, plaintiff alleged that MTA “failed to provide adequate safeguards against the known dangerous condition by, among other acts and omissions, failing to properly design, construct, supervise, inspect and repair the Premises causing the same to be unsafe and defective for its intended purposes.” MTA, in turn, cross-complained against Hampton- the entity that provided design and construction services at the station. Hampton demurred to the first amended cross-complaint, asserting a four year statute of limitations defense pursuant to California Code of Civil Procedure section 337.1, claiming the alleged deficiencies were patent defects. On September 11, 2013, the trial court overruled the demurrer finding that the defect was not patent. Hampton appealed. The appellate court overruled the trial court’s ruling and in fact, granted Hampton’s writ of mandate and even directed the trial court to sustain the demurrer without leave to amend! (Delon Hampton & Associates v. Sup. Ct. (Los Angeles County Metropolitan Transportation Authority) (Cal. App. Second Dist., Div. 3; June 23, 2014) 227 Cal.App.4th 250, [173 Cal.Rptr.3d 407].) The appellate court found that the purpose of section 337.1 is to “provide a final point of termination, to proctect some groups from extended liability.” A “patent deficiency” has been defined as a deficiency which is apparent by reasonable inspection. See Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1336. The court found a patent defect can be discovery by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection. See Preston v. Goldman (1986) 42 Cal.3d 108, 123. The test to determine whether a construction defect is patent is an objective test that asks “whether the average consumer, during the course of a reasonable inspection, would discover the defect…” See Creekbridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256. Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Reprinted courtesy of William M. Kaufman, Lockhart Park LP

Chimney Collapses at South African Utility’s Unfinished $13 Billion Power Plant

November 21, 2022 — Paul Burkhardt - Bloomberg
South Africa’s newest coal-fired power plant, which has been under construction since 2008 and will cost an estimated 232 billion rand ($12.7 billion), shut one of its six generating units after a duct collapsed. The unit at the Kusile plant could remain offline “for a few months” although a clearer estimate will be known over coming weeks, state-owned utility Eskom Holdings SOC Ltd. said in a statement late Wednesday. The outage comes as the country endures record blackouts -- locally known as loadshedding. The duct appeared to have sheared off from the unit’s main structure, a photo posted on Twitter by Anton Eberhard, a professor at the University of Cape Town’s Graduate School of Business, showed. Read the court decision
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Reprinted courtesy of Paul Burkhardt, Bloomberg

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