Seattle Washington Building Expert Directory

Should I Stay or Should I Go? The Supreme Court Says “Stay”

June 10, 2024 — Brendan J. Witry - The Dispute Resolver
In the construction industry, arbitration is a frequently agreed-upon and utilized dispute resolution method. The Federal Arbitration Act (the “FAA”), 9 U.S.C. 1, et seq., provides the underpinning and framework for how courts should handle litigation in connection with arbitration agreements. Where a party asserts that a claim brought in court should be subject to arbitration, Section 3 of the FAA provides that the action should be stayed. However, some courts have entertained a party’s request to dismiss a suit where the claim is subject to an arbitration agreement, creating a circuit split in the federal appeals courts. In Smith v. Spizzirri, 2024 WL 2193872, issued on May 16, 2024, the Supreme Court held that, absent some other defect (such as the lack of personal or subject matter jurisdiction), Section 3 of the FAA requires a court which finds a claim is subject to an arbitration must stay the lawsuit during the arbitration proceedings rather than dismissing the action.[1] In so doing, the Court addressed a question that for years it left unanswered. While most Circuits held, prior to Smith, that Section 3 requires a court to stay the litigation pending an arbitral award; the First, Fifth, Eighth, and Ninth Circuits each held that a court could dismiss an action in lieu of staying. In Smith, both parties acknowledged the underlying claims were arbitrable, but when the district court compelled arbitration, the court dismissed the action rather than staying the court proceedings. The Ninth Circuit (relying on its prior precedent) affirmed, with two judges noting that the Ninth Circuit’s approach was incorrect. The Supreme Court granted certiorari and reversed. Read the court decision
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Reprinted courtesy of Brendan J. Witry, Laurie & Brennan LLP
Mr. Witry may be contacted at bwitry@lauriebrennan.com

Alabama Federal Magistrate Recommends Dismissal of Construction Defect Declaratory Judgment Action Due to Expanded Duty to Defend Standard

May 31, 2021 — Anthony L. Miscioscia & Margo Meta - White and Williams
While the starting point for assessing an insurer’s duty to defend requires comparing the allegations contained within a complaint to the language contained within the insured’s policy, the majority of states require an insurer to do more. In Alabama, a failure of the underlying complaint to allege damages falling within the policy’s terms is not necessarily fatal to coverage – if there are facts provable by admissible evidence to place the loss within coverage. The U.S. District Court for the Southern District of Alabama recently examined Alabama’s broadened duty to defend standard in Frankenmuth Mutual Insurance Company v. Gates Builders, No. 20-00596, 2021 U.S. Dist. LEXIS 83645 (S.D. Ala. Apr. 29, 2021). In Frankenmuth, the magistrate judge was tasked with determining whether the court should abstain from hearing an insurer’s declaratory judgment coverage action pending the resolution of the underlying state court action. The underlying state court action arose out of an allegedly defective construction project. Frankenmuth’s insured, Gates Builders, was hired to perform exterior and structural rehabilitation work at the Resort Conference Center Condominium (the Condominium) in Gulf Shores, Alabama. The project began in July 2014 and concluded in June 2015. In 2019, Gates Builders was informed that the Condominium’s decks were sagging. Gates Builders shored up the decks and provided the Condominium with a quote for the cost of repairs. In July 2020, the Condominium’s Association filed suit, alleging that the work performed in 2014 and 2015 was faulty and had caused damage to the Condominium. Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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Hurricane Milton Barrels Toward Florida With 180 MPH Winds

October 07, 2024 — Brian K Sullivan & David R Baker - Bloomberg
Milton exploded into the Atlantic’s strongest hurricane this year, bearing down as a catastrophic Category 5 storm on a Florida region still struggling to recover from Helene’s devastation. Milton’s top winds reached 180 miles (290 kilometers) per hour, up from 90 mph just 16 hours earlier, the US National Hurricane Center said in an advisory at 5 p.m. New York time. Milton now bests Hurricane Beryl, which raked Texas, Mexico and the Caribbean in July, as the most powerful Atlantic storm this season. With winds this intense, Milton is capable of collapsing homes, flattening trees and triggering power outages that could last weeks to months. It’s difficult for hurricanes to maintain their maximum strength for long, however, so Milton’s winds may drop as it nears Florida’s west coast. Only four Category 5 hurricanes have hit the US mainland, including Michael, which struck Florida’s Panhandle in 2018. Reprinted courtesy of Brian K Sullivan, Bloomberg and David R Baker, Bloomberg Read the court decision
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Update: Where Did That Punch List Term Come From Anyway?

December 21, 2016 — Duane Craig – Construction Informer
I’ve often wondered just where the term “punch list” came from, and I’ve found a few sources that seem to make sense, while others not so much. Enter the Realm of Conjecture and Opinion One person claims it came from the telephone installer process of “punching down” terminals on a block. That seems a bit of a stretch though. A blog writer said it had to do with the term ‘punch’ since it means to “punch something up” as in fix it. Another blog writer thought it had something to do with a long forgotten practice. Apparently subcontractors used to each have their own hole punches that would punch a hole with a shape unique to them. They would use these punches to indicate they had corrected the deficiency that was their responsibility. Read the court decision
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Reprinted courtesy of Duane Craig, Construction Informer
Mr. Craig may be contacted at dtcraig@constructioninformer.com

Duty to Defend Sorted Between Two Insurers Based Upon Lease and Policies

November 02, 2017 — Tred R. Eyerly - Insurance Law Hawaii
Two insurers disagreed on which was responsible for defense costs in the underlying personal injury suit against the insured. Nautilus Ins. Co. v. Westfield Ins. Co., 2017 U.S. Dist. LEXIS 158480 (E.D. Pa. Sept. 27, 2017). Knerr Group, Inc. lease property to Podcon, Inc. pursuant to a written lease. A man named Anthony Postell suffered an injury in an accident on the premises during the term of the lease. Postell filed a personal injury action against Knerr and Podcon, among others. Nautilus provided a defense to Knerr in the Postell case pursuant to a policy Nautilus issued to Knerr. Podcon was insured by Westfield. 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

Fed. Judge Blocks Release of Records on FIU Bridge Collapse, Citing NTSB Investigation

October 23, 2018 — Miami Herald - Engineering News-Record
Oct. 05 --A federal judge Friday blocked the release of documents that could shed light on why a busy road outside Miami was not shut down before a brand-new bridge developing severe cracks collapsed and killed six people. Judge William Stafford said the National Transportation Safety Board , the federal agency investigating the Florida International University bridge disaster, "was exercising its valid federal regulatory authority" in keeping the documents confidential from the media. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

National Engineering and Public Works Roadshow Highlights Low Battery Seawall Restoration Project in Charleston

April 29, 2024 — Engineering and Public Works Roadshow
CHARLESTON, SC — On Thursday, the nationwide Engineering and Public Works Roadshow stopped at the Low Battery Seawall Restoration Project in Charleston. The event highlighted the role engineers and public works professionals play in infrastructure projects like the local seawall improvements that increase coastal resiliency along the historic urban shoreline. The event, which took place along the newly constructed battery wall section between King Street and Battery Place along Murray Boulevard, marked the latest stop of the Engineering and Public Works Roadshow – a joint effort by the American Council of Engineering Companies, the American Public Works Association, and the American Society of Civil Engineers to bring public attention to the essential role engineers and public works professionals play in making our modern world possible. The battery project underscores the importance of innovative engineering solutions in addressing the challenges of climate change and rising sea levels. Thursday's event was also a chance to spotlight the engineering, construction, and public officials involved in the project, whose work often goes unrecognized. About the Engineering and Public Works Roadshow: The Engineering and Public Works Roadshow is a series of nationwide events highlighting critical infrastructure projects and the skilled professionals who make them possible. It is an opportunity to learn about the importance of infrastructure investment, showcase the work of engineers and public works professionals, and celebrate these projects' positive impact on our communities. Learn more at www.infrastructureroadshow.org. Read the court decision
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Maximizing Contractual Indemnity Rights: Insuring the Indemnitor's Obligation

December 02, 2015 — William Kennedy – White and Williams LLP
Contracting parties can circumvent the limitations of common law tort doctrines by drafting contracts with language that details the allocation or shifting of the risk of tort loss. Properly composed, “broad form” contractual indemnity provisions can permit an Indemnitee to shift the full range of tort exposure – damages and defense fees and costs – if they have the kind of specificity set forth in Part Two of this series, "Maximizing Contractual Indemnity Rights: Components of an Effective Provision." In most business transactions, however, both the Indemnitee and the Indemnitor want the indemnity obligation to be insured. Part Three: Insuring the Indemnitor's Obligation “Insured Contract Coverage” Although CGL policies do not typically cover an Insured’s breaches of contract, per se, most insurance policies do cover a policyholder’s “incidental contracts” or “insured contracts” under which the policyholder has an obligation to indemnify an Indemnitee. The business contract (as opposed to the insurance policy) should require the Indemnitor to take all steps necessary to have the Indemnitee identified as either a Covered Person, Insured, or Additional Insured on the Indemnitor’s applicable insurance policies. There are subtle, but potentially significant legal rights and responsibilities that hinge on whether an entity is a Covered Person, Insured, Additional Insured, or some other classification. Purported Indemnitees may need to consult insurance coverage counsel to ensure that they are seeking the appropriate status from the Indemnitor’s CGL insurer. Read the court decision
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Reprinted courtesy of William Kennedy, White and Williams LLP
Mr. Kennedy may be contacted at kennedyw@whiteandwilliams.com

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