SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Windstorm Exclusion Found Ambiguous

September 10, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Second Circuit reversed the District Court's issuance of summary judgment to the insurer because a windstorm exclusion was deemed ambiguous. 7001 East 71st Street, LLC v. Continental Cas. Co., 2018 U.S. App. LEXIS 17334 (2nd Cir. June 26, 2018). A windstorm during Hurricane Sandy caused the roof of 7001 East 71st Street LLC (7001) to tear, allowing rainwater to seep in and damage 7001's "Covered Equipment" as defined by the policy. Continental denied coverage based upon the windstorm exclusion and the district court granted summary judgment to Continental. 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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General Indemnity Agreement Can Come Back to Bite You

October 21, 2019 — Christopher G. Hill - Construction Law Musings
I talk about payment bonds often here at Construction Law Musings. I talk a bit less about performance bonds and even less about the General Indemnity Agreements (GIA) that are signed by companies and their principals as part of the agreement between a construction company and its bonding company for the provision of these bonds. However, this does not mean that these GIA’s are not important. In fact, these are the agreements that allow a bonding provider to recoup any money paid out pursuant to either a payment or performance bond. A 2018 case illustrates their importance. In Allegheny Cas. Co. v. River City Roofing, LLC, the Court considered a claim by Allegheny seeking both specific performance of the collateral agreement and reimbursement of certain expenses and investigative costs expended by Allegheny pursuant to its performance bond. Allegheny sought to be reimbursed for certain payments for siding work, investigative costs, and costs spent enforcing the GIA. Allegheny further sought to force the defendants to post sufficient collateral. To do so, Allegheny sued in the Eastern District of Virginia and then moved for summary judgment stating that the GAI uneuivocally required such a result due to the good faith payment for the siding work and the plain language of the GIA. In response, the Defendants, River City Roofing and its principals that had personally guaranteed the indemnity, argued that the GIA did not apply to the siding work because only the roofing contract was subject to the performance bond and that any bond claims for which collateral was demanded were inchoate and therefore not proper for specific performance. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Fourth Circuit Issues New Ruling on Point Sources Under the CWA

October 02, 2018 — Anthony B. Cavender - Gravel2Gavel
The Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established. 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

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A Race to the Finish on Oroville Dam Spillway Fix

October 09, 2018 — Scott Blair - Engineering News-Record
The Lake Oroville spillway’s 400-acre construction site is an intense flurry of activity. In one corner, an excavator driver uses an old tire as a squeegee to clean away loose rock and prep a foundation. In the steeply sloping spillway chute, a crane operator flies in a rebar cage to workers who tie it into neighboring chute wall segments. Everywhere, dump trucks buzz around the circuitous roadways while rock crushers and batch plants keep pace with dozens of dozers and excavators. Drones hover in the sky photographing and surveying the site, while inspectors pour over every detail of the finished assets. Read the court decision
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Reprinted courtesy of Scott Blair, ENR
Mr. Blair may be contacted at blairs@enr.com

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Carolinas Storm Damage Tally Impeded by Lingering Floods

October 09, 2018 — Jim Parsons & Tom Sawyer - Engineering News-Record
As October rolls in, slow-moving flood crests and sluggish drainage persisting weeks after the passage of Hurricane Florence are leaving large eastern areas in the affected states too inundated for accurate damage assessments. The extent of damage is still largely uncalculated. In some cases, it’s believed to be worsening. Reprinted courtesy of Jim Parsons, Engineering News-Record and Tom Sawyer, Engineering News-Record Mr. Parsons may be contacted at sawyert@enr.com Read the court decision
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A Primer on Insurance for Construction Projects

November 30, 2020 — Garret Murai - California Construction Law Blog
People who live in glass houses should have insurance (in addition to not throwing stones). So too should your construction project. The risks inherent on a construction project are many and varied, ranging from property damage to personal injury to pollution remediation costs, and wise contractors and project owners know that one of the best ways to mitigate these risks is through insurance. So, here’s a primer on what you need to know about insurance on construction projects. Commercial General Liability Insurance (CGL) What it Covers:

• Property damage.
• Bodily injury.
• Personal and advertising injury (e.g., libel and slander).

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Named Insured’s Liability Found Irrelevant to Additional Insured’s Coverage Under a Landlords and Lessors Additional Insured Endorsement

November 16, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Truck Ins. Exchange v. AMCO Ins. Co. (No. B298798, filed 10/26/20), a California appeals court held that even though the named insured restaurant-lessee was found not liable for premises liability to injured restaurant patrons, the respective liability of the named and additional insured was irrelevant to the landlord-lessor’s coverage for injuries “arising out of” the lessee’s “use” of the premises under a landlords, managers or lessors of premises additional insured endorsement on the lessee’s general liability policy. In Truck v. AMCO, restaurant patrons were injured when a vehicle crashed into the restaurant while they were dining. The landlord was aware of a similar accident that happened several years before, but the current lessee operating the restaurant was not. The patrons sued the lessee, alleging negligence and premises liability for failing to take precautionary measures and safeguard the patrons. On learning of the prior incident, the patrons added the landlord, alleging that it should have protected the property from a recurrence by reinforcing the door and installing bollards by the street. 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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Appeals Court Reverses Summary Judgment over Defective Archway Construction

February 10, 2012 — CDJ STAFF

A judge has ruled that a plaintiff can go forward with her suit that she was injured by a defective archway during a birthday party. A three-judge panel of the California Court of Appeals issued this ruling on January 23, 2012, in the case of Trujillo v. Cosio.



Ms. Trujillo attended a birthday party at the home of Maria Cosio and Joel Verduzco. A piñata was hung between a tree and a brick archway. Ms. Trujillo went to get candy that had fallen from the piñata, during which the archway fell on her hand. Subsequent examination of the archway showed that it had not been “properly anchored to the supporting pillars to protect the arch from falling.”



Ms. Cosio and Mr. Verduzco argued that they could not have been aware of the defective nature of the archway’s construction, as it had been built at the request of the prior property owner. The structure was constructed without building permits. Mark Burns, a civil engineer testifying for the plaintiff, said that “a reasonable property owner would have thoroughly tested the archway to ensure it was capable of withstanding such horizontal forces before allowing children to enter into the area.” Mr. Burns noted that twenty rope pulls would have been sufficient to demonstrate the structure’s instability.



The trial court rejected Mr. Burn’s statements, finding that the respondents did not have any knowledge of the defect and that a visual inspection should have sufficed. The court noted that this a triable issue, whether visual inspection suffices, or whether the property owners should have done as Mr. Burns suggested and yank a rope twenty times. The court noted that “although a jury may ultimately disagree with Burn’s opinion, it was supported by sufficient foundation and was not speculative.”



The opinion was written by Judge Flier, with Judges Rubin and Grimes concurring.

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