Seattle Washington Building Expert Directory

Insurers' Motion to Knock Out Bad Faith, Negligent Misrepresentation Claims in Construction Defect Case Denied

August 27, 2013 — Tred Eyerly - Insurance Law Hawaii
Having previously decided that construction defect claims did not arise from an occurrence and were consequently not covered under Hawaii law, the Hawaii Federal District Court refused to dismiss the insured's second amended counterclaim alleging various claims for relief. Ill. Nat'l Ins. Co. v. Nordic PCL Construc., Inc., 2013 U.S. Dist. LEXIS 108932 (D. Haw. July 31, 2013). In earlier proceedings, the court determined that the Nordic's allegedly deficient performance on construction contracts was not an "occurrence." The court also rejected Nordic's argument that the Hawaii legislature's Act 83 required the court to deviate from the Ninth Circuit's opinion in Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940 (9th Cir. 2004) or the Hawaii Intermediate Court of Appeals' decision in Group Builders, Inc. v. Admiral Ins. Co., 123 Haw. 142, 231 P.3d 67 (Haw. Ct. App. 2010). Admiral now moved for summary judgment on its complaint and for dismissal of Nordic's second amended counterclaim, alleging bad faith and negligent misrepresentation, among other counts. Summary judgment as to the Safeway claim was denied. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

The Murky Waters Between "Good Faith" and "Bad Faith"

September 30, 2019 — Theresa A. Guertin - Saxe Doernberger & Vita
In honor of Shark Week, that annual television-event where we eagerly flip on the Discovery Channel to get our fix of these magnificent (and terrifying!) creatures, I was inspired to write about the “predatory” practices we’ve encountered recently in our construction insurance practice. The more sophisticated the business and risk management department is, the more likely they have a sophisticated insurer writing their coverage. Although peaceful coexistence is possible, that doesn’t mean that insurers won’t use every advantage available to them – compared to even large corporate insureds, insurance companies are the apex predators of the insurance industry. In order to safeguard policyholders’ interests, most states have developed a body of law (some statutory, some based on judicial decisions) requiring insurers to act in good faith when dealing with their insureds. This is typically embodied as a requirement that the insurer act “fairly and reasonably” in processing, investigating, and handling claims. If the insurer does not meet this standard, insureds may be entitled to damages above and beyond that which they could otherwise recover for breach of contract. Proving that an insurer acted in “bad faith,” however, can be like swimming against the riptide. Most states hold that bad faith requires more than just a difference of opinion between insured and insurer over the available coverage – the policyholder must show that the insurer acted “wantonly” or “maliciously,” or, in less stringent jurisdictions, that the insurer was “unreasonable.” Read the court decision
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Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita
Ms. Guertin may be contacted at tag@sdvlaw.com

How Philadelphia I-95 Span Destroyed by Fire Reopened in Just 12 Days

July 24, 2023 — James Leggate - Engineering News-Record
Less than two weeks after a tanker truck crash and fire destroyed an Interstate-95 bridge in northeast Philadelphia, the highway reopened to traffic on a temporary road surface June 23. The hastened work to reopen the highway, which has an average daily traffic count of nearly 160,000 vehicles, including about 13,000 trucks, was the result of collaboration between contractors, material suppliers and union workers with local, state and federal officials, Pennsylvania Gov. Josh Shapiro (D) said. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Federal District Court Issues Preliminary Injunction Against Implementation of the Fair Pay and Safe Workplaces Final Rule

November 03, 2016 — Patrick J. Greene, Jr. & Lori Ann Lange – Peckar & Abramson, P.C. Client Alert
On July 31, 2014, President Barack Obama issued Executive Order 13673. As subsequently amended, the Executive Order purports to “increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws.” On August 25, 2016 the Federal Acquisition Regulation (“FAR”) Council published the final FAR Rule and the United States Department of Labor (“DOL”) published its Guidance further implementing the Executive Order. The FAR final rule was scheduled to go into effect in stages, starting with solicitations with an estimated value of $50 million or more on October 25, 2016. The potential effect of these new regulations on government contractors has been the subject of prior alerts from this office and much ongoing discussion. Reprinted courtesy of Patrick J. Greene, Jr., Peckar & Abramson, P.C. and Lori Ann Lange, Peckar & Abramson, P.C. Mr. Greene may be contacted at pgreene@pecklaw.com Ms. Lange may be contacted at llange@pecklaw.com Read the court decision
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Sustainability Is an Ever-Increasing Issue in Development

November 21, 2022 — Scott L. Baker - Los Angeles Litigation Blog
Businesses must be open to change. It is essential to survive in the business world, regardless of the industry. This goes hand-in-hand with the necessity to change along with consumer needs and values as well. With the increasing emphasis on sustainability across industries, many businesses have had to make their processes and products more environmentally friendly. However, in terms of real estate construction, there are some challenges. SUSTAINABILITY IN NEW CONSTRUCTION IS NOW A MATTER OF LAW – NOT JUST A PREFERENCE The push to become greener comes from many fronts. Property owners, potential buyers and even lawmakers all expect the real estate industry to go greener. For example, homeowners and businesses often want their properties to meet their personal values of sustainability. Read the court decision
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Reprinted courtesy of Scott L. Baker, Baker & Associates
Mr. Baker may be contacted at slb@bakerslaw.com

What to Look for in Subcontractor Warranty Endorsements

February 03, 2020 — David M. McLain – Colorado Construction Litigation
With increasing frequency in the construction defect cases we defend, we are seeing commercial general liability insurance policies with “subcontractor warranty” endorsements. Also known as contractor or subcontractor special conditions, these endorsements could have severe and negative consequences for builders that do not comply with their requirements. In researching for this article, I reviewed six different endorsements used by six different carriers, all of which contained some or all of the following requirements:

The builder must have signed subcontract agreements with its subcontractors that require subcontractors to hold harmless, i.e., defend and indemnify, the builder for “bodily injury” or “property damage” claims caused by their negligence.
The subcontractors must maintain their own insurance with limits equal to or greater than the limits in the builder’s own policy, with limits of at least $1 million per occurrence.
The subcontractors’ insurance must not exclude the work being performed for the builder, e.g., the excavator’s policy cannot exclude earth movement claims, the subcontractor’s policy cannot exclude residential construction.
The subcontractors must maintain their own workers’ compensation and/or employer’s liability insurance.
The subcontractors must provide the builder with an endorsement or a certificate of insurance indicating that the builder has been added to the subcontractors’ insurance as an additional insured.
The subcontractors must provide the builder with an endorsement or a certificate of insurance indicating that their insurance carriers have agreed to provide waivers of subrogation in favor of the builder.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

1st District Joins 2nd District Court of Appeals and Holds that One-Year SOL Applies to Disgorgement Claims

June 14, 2021 — Garret Murai - California Construction Law Blog
We’re beginning to see a trend. This past year, the 2nd District Court of Appeals, in Eisenberg Village of the Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, 53 Cal.App.5th 1201 (2020), held for the first time that a one (1) year statute of limitations period beginning upon substantial completion of a project applies to disgorgement claims under Business and Professions Code section 7031. In San Francisco CDC LLC v. Webcor Construction L.P., the 1st District Court of Appeals became the second Court of Appeals in the state to hold that a one (1) year statute of limitations beginning upon completion or cessation of work on a project applies to disgorgement claims under Business and Professions Code section 7031. The San Francisco CDC LLC Case The Defect Action In September 2005, San Francisco CDC LLC entered into a $144 million construction contract with Webcor Construction, Inc. doing business as Webcor Builders to build the InterContinental Hotel in San Francisco, California. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Earth Movement Exclusion Precludes Coverage

July 20, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The Federal District Court, District of Hawaii, found the earth movement exclusion barred coverage for the contractor when a landslide damaged the property. North River Ins. Co. v. H.K. Constr. Corp., 2020 U.S. Dist. LEXIS 90110 (D. Haw. May 22, 2020). Bruce and Yulin Bingle sued HK for damage caused to the Bingle property. HK was hired as the contractor for the construction of a new residence and improvements on their property in Kaneohe. HK excavated near the boundary of the neighbors' and the Bingle's property in order to cut the existing slope to build a retaining wall. Due to the excavation work, the slope on the Bingle property failed and soil eroded away. At the time, the Bingles were selling their property. Due to the landslide, the buyer decided not to buy the property. The Department of Planning and Permitting issued a Notice of Violation for failure to obtain a grading permit. HK notified its carrier, North River. North River agreed to defend under a reservation of rights, but then filed suit against HK for a declaratory judgment. 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

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