Seattle Washington Building Expert Directory

No Coverage For Construction Defects Under Alabama Law

September 14, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court found there was no coverage for alleged defects caused by the insured homebuilder. Canal Indem. Co. v. Carbin, 2017 U.S. Dist. LEXIS 126662 (N.D. Ala. Aug. 10, 2017). Carbin Construction filed suit against Aaron and Sherry Ford, asserting mechanic's and materialman's liens, and seeking sums allegedly due for work performed under a construction contract. The Fords filed a counterclaim, alleging that over a year had passed since Carbin was to complete construction, and that Carbin refused to do any further work on the house until he was paid an additional $11,771.43. The Fords further contended that Carbin had walked off the job after receiving 96.6 percent of the money owed under the contract although only 88 percent of the construction work had been completed. Carbin tendered the counterclaim to Canal. Canal then filed suit seeking a declaration that it had no duty to defend. 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

Teaming Agreements- A Contract to Pursue a Solicitation and Negotiate

November 23, 2020 — David Adelstein - Florida Construction Legal Updates
Teaming agreements are practical and useful agreements on public projects where a prime contractor teams with a subcontractor for purposes of submitting a bid or proposal in response to a solicitation. The prime contractor and subcontractor work together to pursue that solicitation and have the government award the contract to the prime contractor. The teaming agreement allows for information to be confidentially shared (estimating and pricing, construction methodologies, systems, and suggestions, value engineering, etc.) where the subcontractor agrees that it will only pursue the solicitation with the prime contractor. In other words, the subcontractor ideally is not going to submit pricing to another prime contractor proposing or bidding on the same project and is not going to share information the prime contractor has furnished to it. Likewise, the prime contractor is not going to use the subcontractor’s information for purposes of finding another subcontractor at a lower price and is agreeing to use its good faith efforts or best attempts to enter into a subcontract with the subcontractor if it is awarded the project. This is all memorialized in the teaming agreement. The potential problem lies with language that requires the parties to use their good faith efforts or best attempts to enter into a subcontract if the project is awarded to the prime contractor. In essence, this can become a disfavored “agreement to agree” to a future contract that could allow either party to create an argument to back out of the deal under the auspice that they could not come to terms with the subcontract. 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

Coverage Denied for Condominium Managing Agent

May 24, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Determining there were no allegations of bodily injury or property damage in the underlying lawsuit, the court found there was no duty to defend or indemnify the condominium's managing agent. State Farm Fire & Cas. Co. v. Certified Mgmt., 2018 U.S.Dist. LEXIS 71124 (D. Haw. April 27, 2018). Frederick Caven sued Certified Management, dba Associa Hawaii ("Associa") on behalf of himself and a class. Caven alleged that he owned a condominium and was a member of the Regency homeowners' association. The suit alleged that Associa was the managing agent for the association. Caven sold his unit in April 2016. Caven asked Associa for condominium documents to provide to the purchaser. Associa charged Caven $182.29 to download 197 pages of condominium documents for Regency. Associa also charged Caven $286.46 for a one-page "fee status confirmation," a document prepared by Associa which contained financial and other information needed to complete the sale. Caven alleged that the fees charged by Associa and other unit owners were excessive and in violation of Hawaii law. 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

Understanding the California Consumer Privacy Act

March 02, 2020 — Kevin Bonsignore - Wilke Fleury
The recently enacted California Consumer Privacy Act (“CCPA” or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced consumer protections for California residents against businesses that collect their personal information. Generally speaking, the CCPA requires that businesses provide consumers with information relating to the business’ access to and sharing of personal information. Accordingly, businesses should determine whether the CCPA will apply to them and, if so, what policies and procedures they should implement to comply with this new law. Application of the CCPA Importantly, the CCPA does not apply to all California business. The requirements of the CCPA only apply where a for-profit entity collects Consumers’ Personal Information, does business in the State of California, and satisfies one or more of the following: (1) has annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2) receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or (3) derives 50 percent or more of its annual revenues from selling consumers’ personal information. (California Code of Civil Procedure § 1798.140(c)(1)(A)-(C).) Thus, as a practical matter, small “mom and pop” operations will likely not be subject to the CCPA, but most mid-size and large companies should review their own books or consult with an accountant to determine whether the CCPA applies to their business. Rights Granted to Consumers “Consumers,” as the term is used in the CCPA, means “any natural person who is a California resident…” (California Code of Civil Procedure § 1798.140(g).) This broad definition makes no carve-outs or exclusions for a business’s employees and, despite the traditional definition of the term “consumer,” does not seem to require that the resident purchase any goods or services. This definition seems intentional and was likely designed to prevent businesses from attempting to circumvent the requirements of the CCPA by arguing that the personal information they collect does not belong to “consumers” under the traditional meaning of the word. Read the court decision
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Reprinted courtesy of Kevin Bonsignore, Wilke Fleury
Mr. Bonsignore may be contacted at kbonsignore@wilkefleury.com

Illinois Appellate Court Addresses Professional Services Exclusion in Homeowners Policy

August 03, 2022 — James M. Eastham - Traub Lieberman
In Stonegate Ins. Co. v. Smith, 2022 IL App (1st) 210931, the Insured was performing plumbing work at a multi-story townhouse when a fire ensued causing damage to the second story unit. Although a carpenter by trade, the Insured was performing plumbing work consisting of the replacement of a shower valve as a favor for a friend. To accomplish the task, the Insured utilized a small propane torch to attempt to remove the old water piping to the shower. In doing so, the insulation behind the bathroom wall caught fire and the flame spread upward to the neighboring unit. Stonegate had issued a homeowner’s policy to the Insured during the relevant time period. The homeowner's policy excluded coverage for property damage "[a]rising out of the rendering of or failure to render professional services." Subsequent to tender of the loss, Stonegate initiated a declaratory judgment action seeking a declaration that it owned no duty to defend or indemnity pursuant to the professional services exclusions. In finding in favor of the Insured, the Court began its analysis by noting that the homeowner's policy did not define the term "professional services" such that it was the Court’s task to determine whether the Insured’s work qualified as a "professional service" for purposes of the exclusion. The Court further prefaced its holding by stating that for an exclusionary clause to effectively deny coverage, its applicability must be clear and free from doubt because any doubts as to coverage will be resolved in favor of the insured. Looking to Illinois case precedent, the Court found that the term "professional service" is not limited to services for which the person performing them must be licensed by a governmental authority. Rather, "professional services" encompass any business activity conducted by an insured that (1) involves specialized knowledge, labor, or skill, and (2) is predominantly mental or intellectual as opposed to physical or manual in nature. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

Court Voids Settlement Agreement in Construction Defect Case

September 01, 2011 — CDJ STAFF

A U.S. District Court Judge in Florida has ruled in favor of a company that sought to void a settlement agreement. The case, Water v. HDR Engineering, involved claims of construction defects at Florida’s C.W. Bill Young Regional Reservoir. The Tampa Bay Water Authority attributed these to both HDR Engineering’s design and Bernard Construction Company which had built the embankment. Bernard Construction filed a complaint against their subcontractor, McDonald.

Tampa Bay Water settled with Bernard Construction and McDonald, in an agreement that set a minimum and maximum settlement, but also would “prohibit Barnard and McDonald from presenting any evidence on several claims and positions of TBW, to require Barnard to call certain witnesses at trial, to preclude Barnard and McDonald from calling other witnesses, and to restrict the filing of trial and post-trial motions.” HDR Engineering moved to void the agreement as collusive.

The judge that the agreementÂ¬? contained “133 paragraphs of ‘Agreed Facts’ that the parties stipulated would survive any order declaring the Settlement Agreement void or unenforceable.” He characterized these as stipulating “that Barnard neither caused nor contributed to TBW’s damages.” HDR motioned that a summary judgment be given to Barnard Engineering.

The court found that “the evidence identified by TBW is patently insufficient to survive summary judgment.” Further, TBW’s expert initially held Barnard responsible for “lenses, pockets, streaks and layers within the embankment,” but then later withdrew this assigning the responsibility to HDR. Further, the court notes that, “TBW’s arguments that lenses, pockets, streaks, and layers in the soil wedge caused or contributed to its damages and that Barnard is liable for those damages have been foreclosed by the Agreed Facts.”

As TBW failed to provide sufficient evidence to withstand summary judgment, the court granted summary judgment, mooted the claim against McDonald, and terminated the agreement between TBW and the other parties.

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Real-Estate Pros Fight NYC Tax on Wealthy Absentee Owners

October 15, 2014 — Henry Goldman and Allyson Versprille – Bloomberg
A political battle is brewing at the apex of New York’s property market. The real-estate industry is mobilizing to kill a proposed levy on non-resident owners of apartments valued at more than $5 million, seeking to ensure the world’s biggest city doesn’t follow London, Hong Kong and Singapore in extracting extra cash from trophy properties. The industry’s lobbying arm, the Real Estate Board of New York, says the measure will scare off investors who fuel a business supporting more than 500,000 jobs and generating 40 percent of the five boroughs’ revenue. Brokers warn of economic calamity if officials slap a luxury tax on apartments owned by someone who lives in the city less than half the year. Mr. Goldman may be contacted at hgoldman@bloomberg.net; Ms. Versprille may be contacted at aversprille1@bloomberg.net Read the court decision
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Reprinted courtesy of Henry Goldman and Allyson Versprille, Bloomberg

President Trump’s Infrastructure Plan Requires a Viable Statutory Framework (PPP Statutes)[i]

April 13, 2017 — John P. Ahlers - Ahlers & Cressman PLLC
Although we live in a politically-divided nation, there is one issue on which there seems widespread agreement: our country requires a massive upgrade to its infrastructure. Rundown airports, crumbling highways, obsolete ports, and dangerous bridges are now endemic across the United States. By contrast, Asian airports and elegant European bridges and rails show that our country needs an upgrade, the cost of which will be enormous. President Trump promised to revitalize America’s aging roads, bridges, railways, and airports. He chose Wilbur Ross for Commerce Secretary and professor of Conservative Economics and Public Policy, Peter Navarro, to formulate an infrastructure plan. Navarro and Ross recommended that the government allocate $137 billion in tax credits for private investors who underwrite infrastructure projects. They estimate that over the next ten years, the credits could spur $1 trillion in investments. That is how much President Trump promised to spend on infrastructure, a key part of his job-creation plan. His plan involves building the infrastructure with private-money financing. Public Private Partnerships (“PPP”) are not a new concept and have been successful in Canada, Europe, and various U.S. states who have pioneered this method of procurement. Federal tax credits have been used to spur private investment in housing, resulting in tens of thousands of low-income housing developments over the years. The credits are sold to private entities such as banks and equity firms that invest anywhere from $.70 to $1.10 in housing developments for every dollar they receive in credits, a ratio that fluctuates with economic conditions. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers & Cressman PLLC
Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

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