SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Hurricane Ian: Discussing Wind-Water Disputes

October 10, 2022 — Randy J. Maniloff - White and Williams LLP
“Most of the Florida homes in the path of Hurricane Ian lack flood insurance, posing a major challenge to rebuilding efforts, new data show. In the counties whose residents were told to evacuate, just 18.5 percent of homes have coverage through the National Flood Insurance Program, according to Milliman, an actuarial firm that works with the program.” That’s how a September 29th article on The New York Times website begins. When it comes to insurance coverage for hurricanes, the oft-stated maxim is that homeowner’s policies cover damage caused by wind but not flood waters. Such a low take-up rate for flood insurance policies would seemingly create an incentive for those affected by Hurricane Ian to argue, when feasible, that their property damage, despite appearing to have been caused by flood, was also caused by wind. [And, of course, businesses looking to make business interruption claims, under commercial property policies, will be in the same boat.] Further, even when someone has a homeowner’s policy and a flood policy, there may still be a reason to argue that the loss was caused by wind, as homeowner’s policies often have greater limits than flood policies. [As an important aside, when hurricane damages are covered, homeowner’s policies can have a significant deductible, perhaps up to 10% of a home’s insured value.] Read the court decision
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Reprinted courtesy of Randy J. Maniloff, White and Williams LLP
Mr. Maniloff may be contacted at maniloffr@whiteandwilliams.com

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New Green Standards; Same Green Warnings for Architects & Engineers (law note)

January 13, 2014 — Melissa Dewey Brumback - Construction Law in North Carolina
The newest version of the LEED ratings system, LEED v4, has officially been released. For a comparison of the major changes between LEED 2009 and LEEDv4, check out this downloadable form from the USGBC. As the folks at Schinnerer’s pointed out, there is one major change that is fraught with peril for design professionals– the requirement for increased transparency concerning the composition and performance requirements of composition materials. Notes the insurance carrier: “While design firms always had a level of responsibility for ongoing product research, the lack of standardized, affirmative industry data made it difficult for design firms and project owners to assess the impact of building materials on human health. “As with many aspects of sustainability in design and construction, the danger to design firms is likely to come from self-inflicted perils. When a firm accepts responsibility to ‘ensure that a project meets its goals by using the best products that align with project requirements,’ it is essentially giving the project owner a guarantee that is both beyond the firm’s control and uninsurable by any insurance carried by a firm.” Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback
Ms. Brumback can be contacted at mbrumback@rl-law.com

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Insurer Able to Refuse Coverage for Failed Retaining Wall

October 28, 2011 — CDJ STAFF

The Eleventh District of the US Court of Appeals has ruled in the case of Nix v. State Farm Fire & Casualty Company. In this case, the Nixes filed a claim after a portion of the retaining wall in their home collapsed and their basement flooded. State Farm denied the claim “on the ground that the policy excluded coverage for collapses caused by defects in construction and for damage caused by groundwater.”

The court reviewed the Nixes’ policy and found that State Farm’s statement did specifically exclude both of these items. In reviewing the lower court’s ruling, the appeals court noted that State Farm’s expert witness, Mark Voll, determined that the retaining wall “lacked reinforcing steel, as required by a local building code, and could not withstand the pressure created by groundwater that had accumulated during a heavy rainfall.” Additionally, a french drain had been covered with clay soil and so had failed to disperse the groundwater.

The Nixes argued that the flooding was due to a main line water pipe, but their opinions were those of Terry Nix and the contractor who made temporary repairs to the wall. “Those opinions were not admissible as lay testimony. Neither Nix nor the contractor witnessed the wall collapse or had personal knowledge about the construction of the Nixes’ home.”

The lower court granted a summary judgment to State Farm which has been upheld by the appeals court.

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Late Filing Contractor Barred from Involving Subcontractors in Construction Defect Claim

March 01, 2012 — CDJ STAFF

The Colorado Court of Appeals looked at that state’s Construction Defect Action Reform Act in determining if a general contractor could add subcontractors as third-party defendants to a construction defect lawsuit. Shaw Construction, LLC was the general contraction of the Roslyn Court condominium complex, and was sued by the homeowners’ association in a construction defect case. United Builder Services was the drywall subcontractor on the project. MB Roofing had installed roofs, gutters, and downspouts. The certificate of occupancy for the last building was issued on March 10, 2004. The project architect certified completion of all known remaining architectural items in June, 2004.



The HOA filed a claim against the developers of the property on January, 21, 2009. A week later, the HOA amended its complaint to add Shaw, the general contractor. Shaw did not file its answer and third-party complaint until March 29, 2010, sending its notice of claim under the CDARA on March 30.



The subcontractors claimed that the six-year statute of limitations had ended twenty days prior. Shaw claimed that the statute of limitations ran until six years after the architect’s certification, or that the HOA’s suit had tolled all claims.



The trial court granted summary judgment to the subcontractors, determining that “substantial completion occurs ‘when an improvement to real property achieves a degree of completion at which the owner can conveniently utilize the improvement of the purpose it was intended.’”



The appeals court noted that “Shaw correctly points out that the CDARA does not define ‘substantial completion.’” The court argued that Shaw’s interpretation went against the history and intent of the measure. “Historically, a construction professional who received a complaint responded by ‘cross-nam[ing] or add[ing] everybody and anybody who had a part to play in the construction chain.’” The court concluded that the intent of the act was to prevent unnamed subcontractors from being tolled.



The court further rejected Shaw’s reliance on the date of the architect’s certification as the time of “substantial completion,” instead agreeing with the trial court that “the architect’s letter on which Shaw relies certified total completion.”



The appeals court upheld the trial court’s determination that the statute of limitation began to run no later than March 10, 2004 and that Shaw’s complaint of March 29, 2010 was therefore barred. The summary judgment was upheld.

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White House’s New Draft Guidance Limiting NEPA Review of Greenhouse Gas Impacts Is Not So New or Limiting

September 09, 2019 — Norman F. Carlin & Eric Moorman - Gravel2Gavel Construction & Real Estate Law Blog
On June 21, 2019, the White House Council on Environmental Quality (CEQ) issued draft guidance clarifying the treatment of greenhouse gas (GHG) emissions in environmental impact reviews of federal projects under the National Environmental Policy Act (NEPA). Those wishing to comment on the draft must submit comments within 30 days after it is published in the Federal Register. The draft guidance is part of the Trump Administration’s continuing efforts to streamline the permitting and environmental review process for infrastructure and energy projects. It replaces NEPA guidance on climate impacts issued in 2016 by the Obama administration, which was rescinded by President Trump’s Executive Order 13783 early in 2017. Although some initial reports suggest that the new draft guidance significantly pulls back from the Obama administration’s approach, on closer comparison it does not depart that much from the major recommendations of the rescinded guidance. In general, NEPA requires federal agencies proposing to undertake, approve or fund a major federal action to evaluate its environmental impacts, including both direct and reasonably foreseeable indirect effects; to consider alternatives and mitigation; and to discuss cumulative impacts resulting from the incremental effects of the project when added to those of other past, present, and reasonably foreseeable future projects. The new draft and the rescinded 2016 guidance contain similar recommendations regarding an agency’s obligations to consider indirect and cumulative GHG impacts, as well as on the use of cost-benefit analysis and the contentious Social Cost of Carbon (SCC) metric. Reprinted courtesy of Norman F. Carlin, Pillsbury and Eric Moorman, Pillsbury Mr. Carlin may be contacted at norman.carlin@pillsburylaw.com Mr. Moorman may be contacted at eric.moorman@pillsburylaw.com Read the court decision
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What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

April 13, 2017 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course! And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of an eviction judgment. In the Waltner case, Wells Fargo Bank, N.A., as Trustee for WaMu Mortgage Pass-Through Certificates, Series 2005-PR4 Trust (the “Bank”), purchased a residential property at a trustee’s sale in September 2015. The Bank gave the occupant of the house, Sarah Waltner (“Waltner”), notice to vacate the property, but she did not do so. Accordingly, the Bank filed a summary action to evict Waltner, which the trial court ultimately granted. After the trial court granted the Bank relief, Waltner filed a motion to dismiss and a motion to vacate the eviction judgment arguing, among other things, that the judgment was void because the Bank conducted the trustee’s sale after the statute of limitations expired. Both motions were denied, and Waltner appealed. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

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Pool Contractor’s Assets Frozen over Construction Claims

October 22, 2013 — CDJ STAFF
The State of Florida has frozen the assets of Nationwide Pools over claims of deceptive practices. Nationwide will be allowed to engage in pool construction during the lawsuit. The Florida Attorney General’s office alleges that Nationwide Pools failed to pay subcontractors, misrepresented warranties, and left customers with unfinished pools. The State of Florida is seeking restitution to consumers who did business with Nationwide Pools. Read the court decision
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When Does a Claim Against an Insurance Carrier for Failing to Defend Accrue?

November 07, 2012 — David McLain, Colorado Construction Litigation
The following is an update on our December 20, 2010 article regarding United States Fire Insurance Company v. Pinkard Construction Company, Civil Action No. 09-CV-01854-MSK-MJW, and its underlying dispute, Legacy Apartments v. Pinkard Construction Company, Case No. 2003 CV 703, Boulder County Dist. Ct. That article can be found here. The present action, St. Paul Fire and Marine Insurance Co., et al. v. The North River Insurance Co., et al., Civil Action No. 10-CV-02936-MSK-CBS, encompasses the coverage battle that ensued between Pinkard’s insurers, Travelers Indemnity Company of America (“Travelers”) and United States Fire Insurance Company (“USFI”), following the settlement of Legacy’s construction defect claims against Pinkard. A short history of the underlying facts is as follows: In 1995, Pinkard constructed the Legacy Apartments housing complex in Longmont, Colorado. Following construction, Legacy notified Pinkard of water leaks associated with various elements of construction. Legacy ultimately filed suit against Pinkard in 2003, and would go on to clarify and amend its defect claims in 2004, 2006, and again in 2008. Following Pinkard’s notification of Legacy’s claims, USFI provided a defense to Pinkard, but Travelers refused to do so, on the purported basis that Legacy’s allegations did not implicate property damage under the terms of Travelers’ policy. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain can be contacted at mclain@hhmrlaw.com

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