Seattle Washington Building Expert Directory

Does “Faulty Workmanship” Constitute An Occurrence Under Your CGL Policy?

January 08, 2024 — David Adelstein - Florida Construction Legal Updates
There is nothing more scintillating than an insurance coverage dispute, right? Well, some folks would agree with this sentiment. Others would spit out their morning coffee in disagreement. Regardless of where you fall in the spectrum, they are always important because maintaining insurance is a NECESSARY part of business, particularly in the construction industry. The ideal is to have insurance that covers risks you are assuming in the performance of your work. Sometimes, insurance coverage disputes provide valuable insight, even in disputes outside of Florida. Recently, the Western District of Kentucky in Westfield Insurance Co. v. Kentuckiana Commercial Concrete, LLC, 2023 WL 8650791 (W.D.KY 2023), involved such a dispute. While different than how Florida would treat the same issue, it’s still noteworthy because it sheds light into how other jurisdictions determine whether “faulty workmanship” constitutes an “occurrence” under a commercial general liability (CGL) policy. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Ambiguity in Insurance Policy will be Interpreted in Favor of Insurance Coverage

July 19, 2017 — David Adelstein - Florida Construction Legal Updates
An ambiguity in an insurance policy–after reading and interpreting the policy as a whole–will be construed against an insurer. This means an ambiguity will be construed in favor of insurance coverage (for the benefit of the insured) as opposed to against insurance coverage. This does not mean that every insurance policy contains an ambiguity. This also does not mean a court will interpret plain and ordinary words contrary to their conventional meaning or definition. But, as we all know, insurance policies are not the easiest of documents to decipher and ambiguities do exist relating to a particular issue or circumstance to the benefit of an insured. An insured that is dealing with specific insurance coverage issues should make sure they are working with counsel that looks to maximize insurance coverage, even if that means exploring ambiguities that will benefit an insured based on a particular issue or circumstance. An example of an ambiguity in an insurance policy relating to a particular issue that benefitted an insured can be found in the Florida Supreme Court decision of Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017). This case involved an automobile accident and the interpretation of an automobile liability policy. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Ohio Court of Appeals: Absolute Pollution Exclusion Bars Coverage For Workplace Coal-Tar Pitch Exposure Claims

January 24, 2018 — White and Williams LLP
On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942. Read the court decision
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Reprinted courtesy of White and Williams

Homeowner's Mold Claim Denied Due to Spoilation

April 20, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The trial court's issuance of summary judgment to the insurer for mold and water damage was upheld on appeal. Schwartz v. Encompass Indem. Co., 2016 Mich. App. LEXIS 551 (Mich. Ct. App. March 15, 2016). The contractor was demolishing a portion of the insured's home when he discovered water damage and what appeared to be mold. The contractor believed this damage was due to improper roof installation and leaks around the windows. Further demolition was done to water-damaged portions of the home. The insured filed a claim with Encompass for mold and "over-demolition." When Encompass's adjuster inspected the home, none of the alleged mold-affected material was present because it had been removed from the site by the contractor. The claims were denied. 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

Recovering Time and Costs from Hurricane Helene: Force Majeure Solutions for Contractors

November 18, 2024 — Matthew DeVries - Best Practices Construction Law
When Hurricane Helene struck North Carolina, it caused severe disruptions to construction projects across the state. Baxter International’s North Cove facility in Marion, N.C., was completely shut down after floodwaters damaged the site and bridges leading to it. Elsewhere, landslides and floods wiped out large sections of Interstate 40, making transportation of materials and equipment nearly impossible. Many contractors in western North Carolina found their projects halted, and their schedules thrown off by this force majeure event. In situations like these, contractors and subcontractor need a plan to mitigate the impact of such natural disasters on their projects. Here are five practical tips to help you secure time extensions and/or compensation for delays: 1. Include a Robust Force Majeure Clause in Your Contract When disaster strikes, your contract is your first line of defense. A well-drafted force majeure clause can make the difference between bearing the costs yourself and getting an extension or compensation. The clause should clearly list specific events such as hurricanes, floods, and road closures as qualifying force majeure events. Read the court decision
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Reprinted courtesy of Matthew DeVries, Buchalter
Mr. DeVries may be contacted at mdevries@buchalter.com

A Construction Stitch in Time

October 28, 2015 — Christopher G. Hill – Construction Law Musings
It’s a cliche for a reason that “A Stitch in Time Saves Nine.” Why? Because it is almost always cheaper and more efficient in the long run to get something right the first time than to fix it later. This old adage is true in life, and particularly true in the world of construction. Whether it’s measuring twice before making your bid, checking with your subcontractors and suppliers to be sure they haven’t missed anything when giving you a price, or yes (and you knew this was coming), being sure that your contracts are written as they should be and cover the bases. To use another construction related analogy, these types of basic practices create a great foundation for your construction project(s) that will (hopefully) see you through to a successful and profitable construction project. Aside from the last of my examples, how can adding a knowledgeable construction attorney help with laying this foundation? We construction lawyers spend our days either dealing with problems that have occurred (not ideal), anticipating risks that could occur (better, though can lead to a relatively cynical world view), and advising clients before the fact of the potential risks and how to best avoid them (best). Speaking from experience, I would much rather spend my time keeping my construction clients making money and avoiding the pitfalls of the “Murphy’s Law” governed world of construction than spend time with them in court. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Feds Move To Indict NY Contractor Execs, Developer, Ex-Cuomo Aide

November 30, 2016 — Mary B. Powers – Engineering News-Record
Executives at Buffalo, N.Y.-based contractor LPCiminelli and developer COR Development, Syracuse, N.Y., were indicted Nov. 22 on charges of bribery, corruption and fraud in the award of hundreds of millions of dollars in construction contracts. Read the court decision
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Reprinted courtesy of Mary B. Powers, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

Harsh New Time Limits on Construction Defect Claims

April 26, 2011 — Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq.

A recent Colorado Supreme Court decision, Smith v. Executive Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010), considerably shortens the time limit for bringing many construction defect lawsuits. Homeowners and homeowner associations risk losing the right to seek reimbursement from builders, developers and other construction professionals unless they carefully and quickly act upon discovery of evidence of any potential construction defect.

The Statute of Limitations for Construction Defect Claims
Colorado’s construction defect statute of limitations limits the time for homeowners and homeowners associations to bring lawsuits for construction defects against “construction professionals,” including developers, general contractors, builders, engineers, architects, other design professionals, inspectors and subcontractors. The statute requires homeowners and associations to file suit within two years “after the claim for relief arises.” A claim for relief “arises” when a homeowner or association discovers or reasonably should have discovered the physical manifestation of a construction defect.

The two-year time limitation applies to each construction defect separately, and will begin to run upon the appearance of a “manifestation” of a construction defect (which may include, for example, a condition as simple as a roof leak or drywall cracks), even if the homeowner or association does not know the cause of the apparent problem.

The Smith Opinion and its Effect on the Statute of Limitations
In Smith v. Executive Custom Homes, Inc., the plaintiff homeowner, Mrs. Smith, slipped on ice that had accumulated on her sidewalk because of a leaking gutter and suffered injury. When she first noticed the leak, she reported it to her property manager, who reported it to the builder. The builder attempted to repair the gutter, unbeknownst to Mrs. Smith, and she did not notice further problems until approximately one year after she first observed the leak, when she fell and suffered serious injury. She sued the builder within two years of her injury, but nearly three years after she first learned of the leak.

The Colorado Supreme Court dismissed Mrs. Smith’s claims as untimely and held that under the construction defect statute of limitations, the two-year period for suing for injuries due to construction defects begins when the homeowner first observes the physical manifestation of the defect, even if the resulting injury has not yet occurred. The court acknowledged that this ruling could result in “unfair results,” especially if a serious and unforeseeable injury occurs more than two years after the first time the homeowner noticed the problem, and as a result the victim is unable to seek redress from those responsible for the defect.

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Reprinted courtesy of Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq. of Sullan², Sandgrund, Smith & Perczak, P.C., and they can be contacted through their web site.

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