COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer’s Motion for Summary Judgment Based on Earth Movement Exclusion Denied

October 28, 2011 — Tred R. Eyerly - Insurance Law Hawaii

After carefully dissecting the earth movement exclusion, the court denied the insurer’s motion for summary judgment. High Street Lofts Condominium Assoc., Inc. v. Am. Family Mut. Ins. Co., 2011 U.S. Dist. LEXIS 109043 (D. Colo. Sept. 26, 2011).

The City of Boulder performed road repair work near High Street’s property, some of which involved the use of a vibrating compactor to compact and set the roadbed. High Street noticed damage to its building, such as cracks in walls, sloping of floors and separations of porches from the building itself. High Street contacted the City of Boulder, who forwarded the complaint to its contractor, Concrete Express, Inc.

High Street also filed a claim with its business insurer, American Family, who denied the claim. American Family relied on an opinion letter by High Street’s engineer. The letter indicated that the damage was the result of "soil consolidation/settlement," in response to the construction activities. Based on this letter American Family concluded the claim was excluded under the policy’s earth movement exclusion.

High Street sued American Family, who moved for summary judgment.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Google’s Floating Mystery Boxes Solved?

March 12, 2014 — Beverley BevenFlorez-CDJ STAFF
Garret Murai, on his California Construction Law blog, reported how “a four story structure made up of shipping containers” had been mysteriously erected on a barge in the middle of San Francisco Bay. Later, it was determined that Google was behind the strange structure, though they were keeping silent as to what the building-on-the-barge would be used for. Construction stopped after the San Francisco Bay Conservation and Development Commission determined that the mysterious barge required a permit—which would require Google to file “publicly available documents.” Google chose to move the barge to Stockton, California rather than obtain a permit. Google finally released a comment stating that they are “exploring using the barge as an interactive space where people can learn about new technology.” However, Murai believes that this statement may be a “distraction device” and the true use of the barge has yet to be revealed. Read the court decision
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Burg Simpson to Create Construction Defect Group

November 06, 2013 — CDJ STAFF
Burg Simpson Eldredge Hersh & Jardine, P.C. has announced that the attorneys of Sullan2, Sandgrund, Perczak & Nuss, P.C. will be joining them as S2SPN Construction Defect Group of Berg Simpson. The group will be headquartered at Burg Simpson’s Engelwood offices. The combined firms will comprise 55 attorneys. Michael Burg, founding shareholder at Burg Simpson, said that “in Colorado for the past 29 years, these lawyers have provided the highest level of construction defect representation.” His counterpart, Scott Sullan of Sullan2, Sandgrund, Perczak & Nuss said that he and his colleagues are “delighted to be a part of the Burg Simpson team.” The two firms join forces effective January 1, 2014. Read the court decision
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Anti-Concurrent Causation Clause Bars Coverage for Pool Damage

February 23, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Relying upon the policy's anti-concurrent causation clause, the Illinois Court of Appeals affirmed the trial court's ruling that there was no coverage for a pool that popped out of the ground. Bozek v. Erie Ins. Group, 2015 Ill. App. LEXIS 940 (Ill. Ct. App. Dec. 17, 2015). Following a rainstorm, the insureds reported damage to the swimming pool to Erie. An investigation determined that the heavy rain saturated soils around the pool. This created a significant uplift hydrostatic pressure. The weight of the water in the pool typically prevented the uplift forces, but the pool had been emptied to clean debris making it susceptible to uplift. The pool had a pressure relief valve to prevent uplift, but it was not working properly. As a result, the pool was damaged to the point that it had to be replaced in its entirety. The heaving of the pool also damaged the concrete slab around the pool, which also had to be replaced. 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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Spencer Mayer Receives Miami-Dade Bar Association's '40 Under 40' Award

March 04, 2024 — Lewis Brisbois Newsroom
Miami, Fla. (February 23, 2024) – Miami Associate Spencer Mayer received the 2024 Miami-Dade Bar Association Young Lawyers Section’s '40 under 40' Award at the association's annual "Miami Nights" event on February 22. Mr. Mayer serves on the Board of Directors of the Miami Dade Bar Association’s Young Lawyers Section. Lewis Brisbois was a proud sponsor of this event, which raised funds for the organization's community service initiatives and pro bono programming. Mr. Mayer is a member of the General Liability Practice. His practice focuses on all aspects of civil litigation, including complex commercial litigation, products liability, premises liability, wrongful death, catastrophic injury, and insurance coverage. Read the court decision
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Insurers May Not Be Required to Defend Contractors In a Florida §558 Proceeding

November 06, 2018 — Erik Simpson - Gordon & Rees Construction Law Blog
In recent holding, the Florida Supreme Court held that an insurer may not have a duty to defend a contractor in a Florida §558 proceeding. Chapter 558 of the Florida Statutes sets forth procedural requirements which must be met before a claimant may file a construction defect action. These requirements include serving a contractor, subcontractor or supplier with written notice of the claim. The contractor, in turn, must serve a written response to the notice of claim in which the contractor provides either an offer to repair the alleged construction defect at no cost to the claimant, resolution of the claim through a monetary payment, a statement disputing the claim, or a statement that any monetary payment will be determined by the recipient’s insurer. The claimant may file suit if the contractor disputes the claim and refuses to remedy the alleged defect or provide monetary compensation. Read the court decision
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Reprinted courtesy of Erik Simpson, Gordon & Rees
Mr. Simpson may be contacted at esimpson@grsm.com

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Sometimes It’s Okay to Destroy Evidence

August 17, 2011 — CDJ STAFF

The Minnesota Supreme Court has ruled in the case of Miller v. Lankow that Mr. Miller was within his rights to remediate his home, even though doing so destroyed the evidence of water intrusion.



Linda Lankow built a home in 1992. In 2001 or 2002, Lankow discovered a stucco problem at the garage which she attributed to moisture intrusion. She asked the original contractor to fix the wall. In 2003, Lankow attempted to sell her home, but the home inspection revealed fungal growth in the basement. Lankow made further repairs, including alterations to the landscaping.



In 2004, Lankow put her house on the market once again and entered into an agreement with David Miller. Miller declined to have an independent inspection, as the home had been repaired by professional contractors.



In 2005, Miller put the house on the market. A prospective buyer requested a moisture inspection. The inspection firm, Private Eye, Inc. found “significant moisture intrusion problems.”



Miller hired an attorney who sent letters to the contractors and to Lankow and her husband. Lankow’s husband, Jim Betz, an attorney, represented his wife and sent a letter to Miller’s attorney that Miller had declined an opportunity to inspect the home.



In 2007, Miller’s new attorney sent letters to all parties that Miller had decided to begin remediation work on the house. All stucco was removed. Miller then filed a lawsuit against the prior owners, the builders, and the realtors.



Two of the contractors and the prior owners moved for summary judgment on the grounds that Miller had spoliated evidence by removing the stucco. They requested that Miller’s expert reports be excluded. The district court found for the defendants and imposed sanctions on Miller.



The Minnesota Supreme court found that “a custodial party’s duty to preserve evidence is not boundless,” stating that “it may be particularly import to allow remediation in cases such as the one before us.” Their reasoning was that “remediation of the moisture intrusion problem in the home may be necessary, even essential, to address immediate health concerns.”



Given that Miller needed to remediate the problem in order to continue living there, and that he had given the other parties a “full and fair opportunity to inspect,” the court found that he was within his rights. The court reversed the judgment of the lower court and remanded it to them for review.

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Follow Up on Continental Western v. Shay Construction

March 28, 2012 — Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC

Writing in Construction Law Colorado, Brady Iandiorio revisits the case Continental Western v. Shay Construction. He promises to continue to follow cases dealing with Colorado HB 10-1394.



Recently the Court ruled on two Motions to Reconsider filed by Defendants Milender White and Shay Construction.



Procedurally, the Motions to Reconsider were ruled on by the Honorable William J. Martinez, because the day after the motions were filed the action was reassigned to Judge Martinez. In the short analysis of the Motion to Reconsider, the court leaned on Judge Walker D. Miller’s ruling on the summary judgment and his analysis of the (j)(5) and (j)(6) exclusions.



As a quick refresher regarding the grant of summary judgment, Judge Miller agreed with Continental Western’s argument that the asserted claims were excluded under the “damage to property” exclusion. The policy’s exclusions state: “(j) Damage to Property . . . (5) that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations; or (6) that particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” Judge Miller found that both exclusions (j)(5) and (6) applied to both Shay’s allegedly defective work.

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Reprinted courtesy of Brady Iandiorio of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Iandiorio can be contacted at iandiorio@hhmrlaw.com.

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