Seattle Washington Building Expert Directory

Named Insured’s Liability Found Irrelevant to Additional Insured’s Coverage Under a Landlords and Lessors Additional Insured Endorsement

November 16, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Truck Ins. Exchange v. AMCO Ins. Co. (No. B298798, filed 10/26/20), a California appeals court held that even though the named insured restaurant-lessee was found not liable for premises liability to injured restaurant patrons, the respective liability of the named and additional insured was irrelevant to the landlord-lessor’s coverage for injuries “arising out of” the lessee’s “use” of the premises under a landlords, managers or lessors of premises additional insured endorsement on the lessee’s general liability policy. In Truck v. AMCO, restaurant patrons were injured when a vehicle crashed into the restaurant while they were dining. The landlord was aware of a similar accident that happened several years before, but the current lessee operating the restaurant was not. The patrons sued the lessee, alleging negligence and premises liability for failing to take precautionary measures and safeguard the patrons. On learning of the prior incident, the patrons added the landlord, alleging that it should have protected the property from a recurrence by reinforcing the door and installing bollards by the street. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Wildfire Insurance Coverage Series, Part 4: Coverage for Supply Chain Related Losses

July 18, 2022 — Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery Blog
Business loss is not limited to fire or smoke damage to its own property – it often arises from damage to the supply chain. In this post in the Blog’s Wildfire Insurance Coverage Series, we look at what coverage may exist when wildfire damages an entity’s supply chain. In many instances, while the insured property does not sustain fire or smoke damage, wildfires can wreak havoc on the business supply chain. For some, contingent business interruption coverage may be a solution. Contingent business interruption insurance extends coverage for the loss of prospective earnings because of an interruption in the insured’s supply chain that is caused by damage to property that the insured neither owns nor operates.[1] Typically, the property covered is of a supplier or customer. For example, in 2000, Ericsson Telecom A.B., a mobile phone manufacturer, presented a substantial contingent business interruption claim based on a fire that damaged a Royal Philips Electronics semiconductor plant. Royal Philips supplied critical components for Ericsson’s mobile phones. The fire caused Royal Philips to close its plant, halting Ericsson’s phone production for six weeks, resulting in substantial losses. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the court decision
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Portions of Policyholder's Expert's Opinions Excluded

November 13, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted, in part, the insurer's motion to exclude portions of expert testimony. Tundra M. Holdings, LLC v. Markel Ins. Co., 2023 U.S. Dist. LEXIS 139952 (D. Alaska Aug. 10, 2023). Plaintiff alleged a building it owned suffered damages consisting of building roof failure due to snow load. Plaintiff submitted a claim to Markel for its loss. Plaintiff hired an engineering firm to conduct an inspection. The recommendation was to install snow guards and that 28 rafters be replaced with new beams. The evaluation did not state that the recommendation was required by law or ordinance. Nor did the evaluation make mention of replacing the metal roof on the building or anything about the water system or sprinkler system. Plaintiff then obtained an estimate of $687,500 for roof repair/replacement, store front repair, a sprinkler system installer and a water system upgrade. 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

Construction Needs Collaborative Planning

January 20, 2020 — Aarni Heiskanen - AEC Business
What makes construction different from manufacturing is its dynamic nature. Unlike a systemized production plant, a construction site is a mesh of interconnected processes that are far from optimized. The traditional top-down planning practice does not solve problems on the construction site, as recent research reveals. Making planning collaborative is a necessary step in making construction less wasteful. Everybody in the industry has felt frustration with inefficiencies in construction, but seeing the data is still disconcerting. I’ve had the pleasure of attending several workshops organized by the Finnish Aalto University’s research teams. These eye-opening events both revealed how much waste we have in construction today and suggested solutions to this problem. Four Aalto University graduate students shared insights from their research at a workshop of the Waste Workgroup of the Building 2030 consortium. They focused on projects where takt production, a lean construction method, had been used. Takt production breaks the work down into equally timed work batches and typically shortens project lead time considerably—up to 50%. However, even these well-planned projects included waste and unnecessary movement, as the researchers found out. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Will European Insurers’ Positive Response to COVID-19 Claims Influence US Insurers?

August 10, 2020 — Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery Blog
Last month we wrote a piece concerning AXA’s agreement to pay COVID-19 related business interruption claims by a group of restaurants in France after a court ruled that the restaurants’ revenue losses resulting from COVID-19 and related government orders were covered under its insurance policies. AXA reportedly has already agreed to pay over 200 COVID-19 related claims. Another European insurer recently made headlines for similar reasons. Despite initially denying liability, Swiss insurance company, Helvetia Insurance, announced that most of its policyholders in the hospitality industry have accepted settlements following coverage disputes for COVID-19 related business interruption losses. The settlements reportedly included policyholders from Switzerland, Austria, and Germany. The positive response from the European insurers appears to have influenced the insurance industry across the continent. For instance, in the U.K., the Financial Conduct Authority announced that it is taking certain insurers to court to seek clarity as to coverage for COVID-19 related losses. In Germany, the government and a group of insurers reached an agreement whereby the government will pay for 70% of business interruption losses for policyholders in the hospitality industry, and the insurers will pay for half of the business interruption losses not covered by the government. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Hentschel may be contacted at dhentschel@HuntonAK.com Read the court decision
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ABC Safety Report: Construction Companies Can Be Nearly 6 Times Safer Than the Industry Average Through Best Practices

May 06, 2024 — Associated Builders and Contractors
WASHINGTON, April 30, 2024 (GLOBE NEWSWIRE) -- Associated Builders and Contractors today announced the findings from its 2024 Safety Performance Report, an annual guide to construction jobsite health and safety best practices. The report is unveiled to coincide with Construction Safety Week, May 6-10. The annual safety report also provides a comprehensive understanding of the impact of deploying ABC's STEP Safety Management System, which enables top-performing ABC members to achieve incident rates 576% safer than the U.S. Bureau of Labor Statistics construction industry average. Established in 1989, STEP provides contractors and suppliers with a robust, no-cost framework for measuring safety data and benchmarking with peers in the industry. ABC's research on more than 900 million work hours completed by participants in the construction, heavy construction, civil engineering and specialty trades in 2023 identified the following foundations of industry-leading safety best practices:

Top management engagement: Employer involvement at the highest level of company management produces a 54% reduction in total recordable incident rates, or TRIR, and a 52% reduction in days away, restricted or transferred rates, or DART rates.
Substance abuse prevention programs: Robust substance abuse prevention programs/policies with provisions for drug and alcohol testing where permitted lead to a 47% reduction in TRIR and a 48% reduction in DART rates.
New hire safety orientation: Companies that conduct an in-depth indoctrination of new employees into the safety culture, systems and processes based on a documented orientation process experience incident rates that are 45% lower than companies that limit their orientations to basic health and safety compliance topics.
Frequency of toolbox talks: Companies that conduct daily, 15-to-30-minute toolbox talks reduce TRIR and DART rates by 81% compared to companies that hold them monthly.

The 2024 ABC Safety Performance Report is based on submissions of unique company data gathered from members that deployed during the 2023 STEP term, Jan. 15-Dec. 15. ABC collects each company's trailing indicator data as reported on its annual Occupational Safety and Health Administration Form 300A ("Summary of Work-Related Injuries and Illnesses") and its self-assessment of leading indicator practices from its STEP application. Each data point collected is sorted using statistically valid methodology developed by the BLS for its annual Occupational Injuries and Illnesses Survey and then combined to produce analyses of STEP member performance against BLS industry average incident rates. The report demonstrates that applying industry-leading processes dramatically improves health and safety performance among participants regardless of company size or type of work. Any company can participate in STEP. Visit abc.org/step to begin or continue your safety journey. Read the court decision
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There’s the 5 Second Rule, But Have You Heard of the 5 Year Rule?

April 23, 2024 — Garret Murai - California Construction Law Blog
They’re called deadlines for a reason. Usually, because something really bad could happen if you fail to meet the deadline. For those in the construction industry, you probably aware of the “deadline” to bring a claim for latent defects (10 years from substantial completion); the deadline to file suit to foreclose on a mechanics lien (90 days from the date of recording the mechanics lien), and the deadline for serving a preliminary notice (generally, 20 days from the date labor and/or materials are first furnished). Well, here’s another deadline: Under Code of Civil Procedure section 585.310, you have 5 years after a complaint is filed to bring a case to trial, absent the court granting relief. I could leave it at that, but in the next case, Oswald v. Landmark Builders, Inc., 97 Cal.App.5th 240 (2023), was too interesting to pass up. The Oswald Case On June 28, 2016, homeowners Jack Oswald and Anne Seley sued their general contractor and its subcontractors alleging construction defects at their home. Answers and cross-complaints were filed and on February 2017 the trial court determined the case to be complex and appointed a discovery master. A discovery master, for those who may be unfamiliar, is usually a retired judge or third-party lawyer appointed by a court to oversee discovery in a case such as written discovery, depositions, site inspections, etc. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Funding the Self-Insured Retention (SIR)

August 17, 2020 — David Adelstein - Florida Construction Legal Updates
Unlike a deductible, a self-insured retention (referred to an “SIR”) is, as the name suggests, a self-insured obligation of the insured before its insurer picks up coverage. The SIR needs to be exhausted by the insured (as the primary self-insurance component) before the carrier’s excess defense and indemnification obligations kick-in under the terms of the policy. However, an insured can generally exhaust an SIR by paying legal fees and costs associated with a claim. Oftentimes, the language in the policy requires the SIR to be paid for by the named insured or an insured under the policy. This was an issue addressed by the Florida Supreme Court in Intervest Const. of Jax, Inc. v. General Fidelity Ins. Co., 133 So.3d 494 (Fla. 2014). In this matter, a personal injury claimant asserted a claim against the contractor dealing with a residential home. The contractor hired a subcontractor to install attic stairs and the subcontract required the contractor to indemnify it. The owner of the house injured herself on the attic stairs and sued the contractor. The contractor, in turn, sought indemnification against the subcontractor that installed the attic stairs. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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