SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

No Indemnity Coverage Where Insured Suffers No Loss

November 05, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The insured subcontractor sought coverage under its Builder's Risk policy for loss despite already being paid under contract the amount sought under the policy. MKB Constr. v. Am Zurich Ins. Co., 2014 U.S. Dist. LEXIS 136096 (W.D. Wash. Sept. 24, 2014). MKB contracted with the Lower Yukon School District (LYSD) to place gravel fill for a new building pad upon which a school building would be placed in Emmonak, Alaska. The project site was built on tundra that melted in the summer, becoming marshy and pocketed by pools of standing water. LYSD provided the bidding contractors with information stating that settlements of 3 to 9 inches could be expected in areas with 30 inches of fill. The contract was awarded to MKB, who subsequently realized it had under bid the amount of gravel fill that would be required. The estimated difference in the amount bid and the amount that would be needed was 6,583 cubic yards. LYSD refused to increase the contract price. 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

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Bank Window Lawsuit Settles Quietly

October 02, 2013 — CDJ STAFF
The Federal Reserve Bank of St. Louis has filed a motion to dismiss its breach of contract lawsuit over the windows McCarthy Building installed in the bank’s building. The bank alleged that the 498 windows were defective and needed to be replaced at a cost of about $1.5 million. But on September 11, the bank acted to dismiss the suit following a settlement with the defendants. The terms of the settlement was not disclosed. All parties will be covering their own legal costs. Read the court decision
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Connecticut Court Holds Unresolved Coverage Issues Makes Appraisal Premature

July 18, 2018 — Michael S. Levine, Lorelie S. Masters & Geoffrey B. Fehling – Hunton Insurance Recovery Law Blog
A Connecticut court recently denied a motion to compel appraisal of a claim for coverage of a commercial property damage claim, holding that, where the insurance policy at issue provides for appraisal of disputes related to the value or quantum or a loss suffered—not the rights and liabilities of the parties under the policy—appraisal is premature. The decision relied on law that equates insurance appraisal to arbitration and follows a number of decisions holding that parties cannot expand the scope of appraisal clauses to resolve questions of coverage or liability where, as in this case, those issues are not supported by the applicable policy language. Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Lorelie S. Masters and Geoffrey B. Fehling Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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OSHA ETS Heads to Sixth Circuit

December 13, 2021 — George Morrison - White and Williams LLP
On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow. Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:

• The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
• The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
• The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

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Reprinted courtesy of George Morrison, White and Williams LLP
Mr. Morrison may be contacted at morrisong@whiteandwilliams.com

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Yes, Indeedy. Competitive Bidding Not Required for School District Lease-Leasebacks

October 01, 2014 — Garret Murai – California Construction Law Blog
Remember when you discovered that the tooth fairy wasn’t real? It was kind of a bummer on one hand learning that it wasn’t a fairy that magically appeared to swap your tooth for cold hard cash, but rather your mom or, visual horrors, dad. At the same time, it was, to your nearly-halfway-to-a-decade-on-this-planet-wizened-six-year-old mind, confirmation of what you had a sneaking suspicion was the case in any event. And, so it is with the next case. Lease-Leasebacks In California, most public school construction projects are built using the traditional design-bid-build project delivery method in which a design professional designs the project, the project is put out for competitive bid and the selected contractor builds the project. But not all school construction projects are built this way. Read the court decision
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Reprinted courtesy of Garret Murai, Kronick Moskovitz Tiedemann & Girard
Mr. Murai may be contacted at gmurai@kmtg.com

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Homeowners Must Comply with Arbitration over Construction Defects

January 06, 2012 — CDJ STAFF

The California Court of Appeals has upheld a decision by the Superior Court of Kern County that homeowners must comply with arbitration procedures in their construction defect claim. The California Court of Appeals ruled on December 14 in the case of Baeza v. Superior Court of Kern County, denying the plaintiff’s petition that the trial court vacate its order.

The plaintiffs in the case are homeowners in various developments built by Castle & Cook. The homes were sold with a contract that provided for “nonadversarial prelitigation procedures, including mediation, and judicial reference.” The homeowners made defect claims and argued that Castle & Cooke failed to comply with statutory disclosure requirements and that some of the contracts violate related statutes.

The appeals court found that there was no ground for appeal of the lower court’s order to continue with prelitigation procedures. The court noted that the plaintiffs could not seek a review of the mediation until a judgment was issued, but that then the issue would be moot. The court felt that there were issues presented that needed clarification, and so they reviewed this case. This was cleared for publication.

The court considered the intent of the legislature in passing the Right to Repair Act, noting that “under the statutory scheme, the builder has the option of contracting for an alternative nonadversarial prelitigation procedure,” as established in Chapter 4. The court noted that Chapter 4 “contains no specifics regarding what provisions the alternative nonadversarial contractual provisions may or must include.”

The plaintiffs contended that the builder was in violation of the standards set out in Section 912, however the court responded that these sections set out one set of procedures, but they concluded that “if the Legislature had intended the section 912 disclosure provisions…it could have made the requirements applicable to all builders by locating them in a section outside Chapter 4.”

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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

January 05, 2017 — Masaki J. Yamada – Ahlers & Cressman PLLC
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured. As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

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PFAS: From Happy Mistake to Ubiquity to Toxic Liability (But is there coverage?)

March 14, 2022 — Michael S. Levine & Rachel E. Hudgins - Hunton Andrews Kurth
In 1938, a DuPont chemist’s experiment yielded not—as he first thought—a lumpen, waxy mistake, but a new chemical with remarkable properties: heat-resistance, chemical stability, and low surface friction. Decades of continuing experimentation yielded a class of chemicals with the capacity to make non-stick, water-resistant coatings. In time, these chemicals, per- and polyfluoroalkyl substances (PFASs), would become a major component in thousands of consumer goods: food packaging, non-stick cookware, waterproof clothing, paint, stain-resistant carpets and furniture, and firefighting foams. The discovery of the toxicity of these remarkable chemicals lagged behind the widespread adoption, but eventually yielded a moniker that reflected PFAS’s stability and longevity: “Forever Chemicals.” In October 2021, the Biden administration announced a plan to address, among other concerns, PFAS’s migration to drinking water sources. EPA Administrator Michael S. Regan debuted the plan in Raleigh, North Carolina alongside Governor Roy Cooper. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Rachel E. Hudgins, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Hudgins may be contacted at rhudgins@HuntonAK.com Read the court decision
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