Seattle Washington Building Expert Directory

Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause

May 15, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court upheld the insurer's denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023). Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage. 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

Summary Findings of the Fourth National Climate Assessment

January 02, 2019 — Anthony B. Cavender - Gravel2Gavel
On November 23, the latest National Climate Assessment, Fourth National Climate Assessment (NCA4), was released by the U.S. Global Research Program, as required by the Clean Air Act. The Assessment, comprising three volumes and 1600 pages, contains some rather bleak findings which the Report usefully summarizes. Here’s a description of these findings. 1. Communities. The report states that “climate change creates new risks and exacerbates existing vulnerabilities in communities across the United States.” In particular, “more frequent and intense extreme weather and climate-related events” will continue to damage infrastructure , ecosystems and social systems. However, “global action” to significantly cut greenhouse gas emissions can substantially reduce these risks. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Fifth Circuit Reverses Summary Judgment Award to Insurer on Hurricane Damage Claim

December 18, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit reversed the district court's grant of summary judgment to the insurer on a property damage claim arising from Hurricane Harvey. Advanced Indicator and Manufacturing, Inc. v. Acadia Ins. Co., 50 F.4th 469 (2022). After Hurricane Harvey struck southern Texas in 2017, Advanced submitted a claim to Acadia for damage to its building that it claimed was caused by the hurricane's winds. Acadia sent an adjuster, Nick Warren, as well as an engineer, Jason Watson. Watson determined that pre-existing conditions - including ongoing leaks from deterioration and poor workmanship - caused the damage, rather than winds from Hurricane Harvey. Warren adopted these conclusions in his recommendations to Acadia. Acadia denied Advanced's claim based on these reports. Advanced sued Acadia, alleging breach of contract and bad faith. Advanced filed a motion to remand to state court which was denied. Acadia moved for summary judgment arguing that it did not breach the policy and that Advanced could not segregate any damages caused by hurricane from pre-existing damage. The district court granted Acadia's motion, finding that Acadia's denial of Advanced's claim was based on "extensive consideration of the evidence." Further, Advanced failed to carry its burden of showing that covered and non-covered damages could be segregated as required by Texas's concurrent causation doctrine. Finally, the bad faith claim was dismissed because there was no breach of contract. 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

New York: The "Loss Transfer" Opportunity to Recover Otherwise Non-Recoverable First-Party Benefits

May 13, 2014 — Robert M. Caplan – White and Williams LLP
New York’s “no-fault” legislation reflects a public policy designed to make the insurer of first-party benefits absorb the economic impact of loss without resort to reimbursement from its insured or, by subrogation, from the tortfeasor. Country Wide Ins. Co. v. Osathanugrah, 94 A.D.2d 513, 515 (N.Y. 1st Dept. 1983). The no-fault concept embodied in New York’s Insurance Law modifies the common law system of reparation for personal injuries under tort law. Safeco Ins. Co. of Am. v. Jamaica Water Supply Co., 83 A.D.2d 427, 431 (N.Y. 2nd Dept. 1981). “[F]irst party benefits are a form of compensation unknown at common law, resting on predicates independent of the fault or negligence of the injured party.” Id. at 431. The purpose of New York’s no-fault scheme is “to promote prompt resolution of injury claims, limit cost to consumers and alleviate unnecessary burdens on the courts.” Byrne v. Oester Trucking, Inc., 386 F. Supp. 2d 386, 391 (S.D.N.Y. 2005). New York’s no-fault scheme—contained in Article 51 of its Consolidated Laws (“Comprehensive Motor Vehicle Insurance Reparations”)—requires owners of vehicles to carry insurance with $50,000 minimum limits which covers basic economic loss, i.e., first-party benefits, on account of personal injury arising from the use or operation of a motor vehicle. Basic economic loss includes, among other things: (1) medical expenses; (2) lost earnings up to $2,000 per month for three years; and (3) out-of-pocket expenses up to $25 per day for one year. N.Y. INS. LAW § 5102(a). Read the court decision
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Reprinted courtesy of Robert M. Caplan, White and Williams LLP
Mr. Caplan may be contacted at caplanr@whiteandwilliams.com

CA Supreme Court Finds “Consent-to-Assignment” Clauses Unenforceable After Loss Occurs During the Policy Period

August 26, 2015 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Fluor Corporation v. Superior Court (No. S205889; filed 8/20/15), the California Supreme Court overruled its earlier decision in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934, holding that notwithstanding the presence of a consent-to-assignment clause in a liability policy, Insurance Code section 520 bars an insurer from refusing to honor the insured’s assignment of coverage after a loss has taken place during the policy period. In Henkel, the Supreme Court limited the ability of corporate successors to obtain coverage under predecessors’ policies on a contract theory. The Henkel Court held that where a successor corporation contractually assumed liabilities of the predecessor corporation, the insurance benefits would not automatically follow. The Henkel Court ruled that if the predecessor company’s policy contains a consent-to-assignment clause, any assignment of insurance policy benefits to a successor corporation required the insurer’s consent. The Court said that policy benefits are not transferable choses in action unless at the time of corporate transfer they could be reduced to a monetary sum certain. The Court reasoned that historic product or environmental liabilities might not even be known to the predecessor at that time, much less reduced to a sum certain, so coverage for such risks could not be considered a transferable chose in action. Thus, where the liability was inchoate at the time of the corporate transaction, the Henkel Court said that coverage would not necessarily follow because the insurer’s duties had not yet attached. 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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Improper Classification Under Davis Bacon Can Be Costly

April 01, 2015 — Craig Martin – Construction Contractor Advisor
The Department of Labor announced late last year that it had recovered nearly $2 million in back wages and fringe benefits from a subcontractor that provided constructions services at the federally funded Crescent Dunes Solar Energy Project in the Nevada desert. This was not a failure to pay Davis Bacon wages, but a failure to properly classify laborers on the project. The DOL determined that the laborers should have been paid as skilled trade steelworkers, not general laborers. As the subcontractor found out, this proved very costly. The subcontractor submitted its bid, classifying its laborers as general laborers and designating their wage at $30.00. The laborers were to assemble billboard sized mirrors on the project. There is some indication that the Department of Energy agreed with the classification, even though the Department of Labor has the final say on classifications. The Department of Labor’s investigation revealed that the laborers routinely performed duties in skilled trades, such as ironworking, electrical work, painting or bridge crane operation. Based on these activities, the Department of Labor concluded that the laborers should have been paid $60.00 per hour plus fringe benefits. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Locals Concerns over Taylor Swift’s Seawall Misdirected

January 13, 2014 — CDJ STAFF
Homeowners in Westerly, Rhode Island have been concerned about alterations made to a seawall below Taylor Swift’s seaside home in Rhode Island, particularly in that some large boulders have been moved to the shore. But officials with Rhode Island’s Coastal Resource Management Council have assured residents that the work is being done at their request, according to the Westerly Sun. In addition to moving boulders, the project repairs an existing seawall which was damaged by Hurricane Sandy. The cost is estimated to be $2 million. Read the court decision
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Contractor Prevails on Summary Judgment To Establish Coverage under Subcontractor's Policy

June 07, 2021 — Tred R. Eyerly - Insurance Law Hawaii
When sued for construction defects caused by the subcontractor, the general contractor was granted summary judgment on the issue of coverage under the subcontractor's policy. Meritage Homes of Ga. v. Grange Ins. Co., 2021 U.S. Dist. LEXIS 84591 (N.D. Ga. March 23, 2021). Meritage built a home for the owners. Easterwood Excavating, Inc. was the subcontractor for excavation and grading work. Meritage was named an additional insured under Easterwood's policy with Grange. After construction was completed, the owners were experiencing severe flooding after rain storms purportedly due to defects in the grading, site preparation and excavation. The owners filed an arbitration against Meritage for damages. The owners alleged that Meritage improperly excavated and graded their lot, causing water to collect and pool in their yard. Meritage denied all liability and looked to Easterwood and Grange for defense and indemnification. Grange denied coverage, contending there was no occurrence which resulted in property damage. The arbitrator found that the folding of water was caused by Meritage's improper grading of the lot. A Final Award in the amount of $129,530.93 was issued against Meritage. 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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