Seattle Washington Building Expert Directory

Insurer Must Defend and Indemnify Construction Defect Claims Under Iowa Law

February 23, 2017 — Tred R. Eyerly – Insurance Law Hawaii
Applying Iowa law, the federal district court found that the insurer had to defend and indemnify construction defect claims for damage to property caused by the insured's subcontractors. Van Der Weide v. Cincinnati Ins., 2017 U.S. Dist. LEXIS 4469 (N.D. Iowa Jan. 12, 2017). Van Der Weide contracted with Bouma & Company, Inc. to construct a house in 1996. Before construction began, Bouma purchased a CGL policy and a separate umbrella policy from Cincinnati, which were in effect from January 30, 1996 to January 30, 1999. Bouma used various subcontractors to build the home, including Elkato Masonry, which did the brick veneer and masonry work. The house was completed in February 1998 and Van Der Weide moved in during August 1998. 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

Water Backup Payment Satisfies Insurer's Obligation to Cover for Rain Damage

February 16, 2017 — Tred R. Eyerly – Insurance Law Hawaii
The insured's attempt to secure additional coverage beyond a $10,000 payment for water damage after a rain storm damaged the interior of its building failed. Bible World Christian Ctr. v. Colony Insurance Co, 2016 U.S. Dist. LEXIS 175766 (M.D La. Dec. 20, 2016). The interior of Bible World's building was damaged by water that leaked in from the roof after a heavy rain storm. Bible World's officials met with Robert Chandler, an employee of Omni Insurance Group, the day after the rain event. Chandler had assisted Bible World in procuring its commercial property policy with Colony Insurance Company. Chandler told Bible World to fix the property and that its costs would be covered under the policy. Bible World spent $79,876.81 in repairs. 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

Ahead of the Storm: Preparing for Dorian

September 16, 2019 — Adam P. Handfinger, Stephen H. Reisman & Gary M. Stein - Peckar & Abramson, P.C.
While Hurricane Dorian churns in the Atlantic with its sights currently set on the east coast of Florida, storm preparations should be well underway. As you are busy organizing efforts to secure your job sites, we at Peckar & Abramson offer some quick reminders that may prove helpful:

Review your contracts, particularly the force majeure provisions, and be sure to comply with applicable notice requirements
Even if not expressly required at this time, consider providing written notice to project owners that their projects are being prepared for a potential hurricane or tropical storm and that the productivity and progress of the work will be affected, with the actual time and cost impact to be determined after the event.
Consult your hurricane plan (which is often a contract exhibit) and confirm compliance with all specified safety, security and protection measures.
Provide written notice to your subcontractors and suppliers of the actions they are required to take to secure and protect their portions of the work and the timetable for completion of their storm preparations.

Reprinted courtesy of Peckar & Abramson, PC attorneys Adam P. Handfinger, Stephen H. Reisman and Gary M. Stein Mr. Handfinger may be contacted at ahandfinger@pecklaw.com Mr. Reisman may be contacted at sreisman@pecklaw.com Mr. Stein may be contacted at gstein@pecklaw.com Read the court decision
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White House Reverses Trump Administration NEPA Cutbacks

October 24, 2021 — Mary B. Powers & Debra K. Rubin - Engineering News-Record
The Biden administration's Oct. 6 announcement that it will restore certain long-standing environmental reviews for infrastructure projects—rolled back by the Trump administration last year—won praise from environmental groups but has some in the construction sector wary of new project delays as a major federal funding push looms. Reprinted courtesy of Mary B. Powers, Engineering News-Record and Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Unfair Risk Allocation on Design-Build Projects

June 13, 2022 — Brian Perlberg, Executive Director of ConsensusDocs Coalition & AGC Senior Counsel
The AGC annual convention included a session entitled “Who’s on the Hook for Design Defects in Design-Build Projects.” Fox Rothschild’s Dirk Haire, Les Synder of Infrastructure Construction Brightline West, and David Hecker of Kiewit presented. Attendees crowded into a standing-only room because more and more builders are facing design liability, especially design-builders on large infrastructure projects. The presentation highlighted how some owners abuse the submittal process on design-build jobs to make changes without compensating the builder with more time, money, or both. One project took a sample of owner comments and extrapolated that just one project generated over 15,000 submittals and generated over 110,000 comments of “concern” or “preference.” Certain owner-representatives and attorneys for owners have oversold the risk allocation transfer aspect of design-build. The Spearin Doctrine protects a builder from design documents containing errors by entitling them to receive equitable compensation. The design-build project delivery method erodes potential Spearin protections. Ways that an owner may retain some design responsibility and bring Spearin protections back into play for a builder include the following:

Accuracy of reports prepared by owner’s outside consultants

Owner’s design approval process
Viability of owner’s stated design and project criteria

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Reprinted courtesy of Brian Perlberg, ConsensusDocs

Private Mediations Do Not Toll The Five-Year Prosecution Statute

April 28, 2016 — Zachary P. Marks – Chapman Glucksman Dean Roeb & Barger In Focus
If you thought private mediation could toll the five-year period for case prosecution – think again. In a recent decision handed down by the Second District Court of Appeal, the court unequivocally held that voluntary, private mediations do not toll the five-year period before dismissal for failure to bring an action to trial. California Code of Civil Procedure section 583.310 sets forth the applicable rule: “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Section 1775.7(b) clarifies this rule, stating that the five-year period can be tolled if it is “submitted to mediation” within the final six months of the five-year period. However, the Code is silent with respect to the effect of tolling on public versus private mediations. The Court of Appeal addressed this issue in its recent decision entitled Castillo v. DHL Express (USA) (2015) 243 Cal.App.4th 1186. Castillo was an employment class action brought by truck drivers against their employers. Plaintiffs argued that the case was “submitted to mediation” within the meaning of Section 1775.7(b) because the court’s Case Management Order reflected the fact that the parties agreed to pursue mediation. Conversely, defendants argued that the Case Management Statement clearly stated that the parties voluntarily agreed to a private mediation, not a court-ordered mediation. Read the court decision
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Reprinted courtesy of Zachary P. Marks, Chapman Glucksman Dean Roeb & Barger In Focus
Mr. Marks may be contacted at zmarks@cgdrblaw.com

New Jersey Appeals Court Ruled Suits Stand Despite HOA Bypassing Bylaw

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
In the case Port Liberte II Condominium Association v. New Liberty Residential Urban Renewal Company, a New Jersey appeals court ruled that a homeowners association (HOA) could bypass a bylaw that requires unit owners to approve litigation before it is filed, the New Jersey Law Journal reported. Two construction-defect suits were reinstated by the appeals court, and both had been “dismissed based on alleged violation of the bylaws.” The first suit “claimed the defendants' negligence contributed to major construction defects at the 225-unit condominium development, which was completed in 2004” while “the second suit claimed that one section of the development is sinking into the ground because of a failure to properly investigate soil conditions at the former industrial site where the buildings sit.” According to the New Jersey Law Journal, the HOA did not obtain approval from the unit owners prior to commencing litigation because “the statute of limitations was about to expire.” However, the HOA met with the residents in October of 2009 and a vote was cast “72 to 3 to pursue litigation.” In May of 2011 the second suit was dismissed because defendants stated “approval of residents was not obtained.” Another meeting of residents occurred, and another vote cast ratified “both suits by a vote of 65 to 1.” However, Judge Baber, who had previously dismissed both suits, refused to reinstate them. “The Appellate Division said in its ruling that the Condominium Act, N.J.S.A. 46:8B-1, gives the association the exclusive authority to file suit against builders and other third parties for damage to common areas in the community,” the New Jersey Law Journal reported. “Given its legal responsibility for upkeep of common areas, and its statutory authorization to sue for damages to such areas, the association had standing to file suit, the appeals court said.” Read the court decision
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New York Labor Laws and Action Over Exclusions

February 01, 2021 — Theresa A. Guertin & Ashley McWilliams - Saxe Doernberger & Vita, P.C.
One of the most important methods for shifting risk in the construction context is insurance coverage. Upstream parties such as owner/developers and general contractors typically require that their downstream subcontractors who perform work on their properties or projects bring specific insurance to the table. These insurance requirements have a twofold purpose: protect the upstream parties, through additional insured coverage, from liabilities caused by the subcontractor; and protect the downstream parties by ensuring that they have adequate insurance for their own potential liabilities. In New York, subcontractor insurance coverage can have some surprising terms which frustrate risk transfer. Numerous policies contain “Action Over” exclusions, which bar coverage for one of the most significant exposures faced by owner-developers and general contractors: bodily injury lawsuits brought by subcontractor employees. It is critical that upstream parties understand the unique impact of New York’s labor laws on the insurance market and be prepared to identify and request removal of Action Over exclusions on subcontractor insurance policies. Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C. and Ashley McWilliams, Saxe Doernberger & Vita, P.C. Ms. Guertin may be contacted at TGuertin@sdvlaw.com Ms. McWilliams may be contacted at AMcWilliams@sdvlaw.com Read the court decision
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