Seattle Washington Building Expert Directory

Ohio Supreme Court Rules That Wrongful Death Claims Are Subject to the Four-Year Statute of Repose for Medical Claims

January 16, 2024 — Lewis Brisbois Newsroom
Cleveland, Ohio (January 2, 2024) - In a landmark 4-3 ruling, the Supreme Court of Ohio ruled on December 28 that wrongful death claims are subject to the four-year statute of repose contained in O.R.C. 2305.113(C) (“Medical Claim Statute of Repose”). Everhart v. Coshocton County Memorial Hospital, Slip No. 2023-Ohio-4670. Statutes of repose create an absolute bar to filing a lawsuit. When applicable, they bar plaintiffs from filing claims outside a specified time frame. The Medical Claim Statute of Repose creates a four-year window for commencing medical claims, which begins to run from “the occurrence of the act or omission constituting the alleged basis of the medical…claim.” O.R.C. 2305.113(C)(1). Medical claims commenced after the four-year period are barred. The primary question before the Court was whether a wrongful death claim, which is separate and distinct from a medical negligence claim, can qualify as a “medical claim” within the context of the Medical Claim Statute of Repose. The Court answered in the affirmative. A wrongful death claim can qualify as a medical claim if the wrongful death claim “…arises out the medical diagnosis, care, or treatment, of any person.” O.R.C. 2305.113(E)(3). According to the majority, a wrongful death claim can fall within the broad definition of “medical claim” and, if it does, is subject to the Medical Claim Statute of Repose. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Federal Court Requires Auto Liability Carrier to Cover Suit Involving Independent Contractor Despite “Employee Exclusion”

August 30, 2017 — H. Scott Williams & Brendan Holt - Saxe Doernberger & Vita, P.C.
A recent federal court decision rendered in July of 2017 highlights the importance of worker classification in the transportation industry and the potential insurance implications. In Spirit Commercial Auto Risk Retention Grp., Inc. v. Kailey, 1 the court determined that an “employee exclusion” in a motor carrier’s automobile liability insurance policy did not exclude coverage for liability resulting from the bodily injury of an independent contractor operating the motor carrier’s tractor-trailer. In April of 2014, a team of two drivers hired by the motor carrier, Kailey Trucking Line (KTL), were involved in a collision while operating KTL’s truck. The passenger in the truck, who was not operating the vehicle at the time, was killed in the accident. Subsequently, the spouse of the decedent filed suit against KTL as well as the driver of the truck. KTL sought coverage for the suit under its automobile liability insurance policy, issued by Spirit Commercial Auto Risk Retention Group, Incorporated (Spirit). However, Spirit took the position that it had no duty to defend or indemnify KTL, and ultimately filed a declaratory judgment action in United States District Court for the Eastern District of Missouri. The policy issued to KTL provided coverage for damages due to bodily injury or property damage caused by an accident resulting from the ownership, maintenance, or use of a covered auto. However, the policy excluded from coverage any bodily injury to an employee or fellow employee of the insured arising out of and in the course of employment of the insured. Accordingly, to the extent that the decedent qualified as an “employee” of KTL, Spirit had no duty to indemnify KTL in the litigation. Reprinted courtesy of H. Scott Williams, Saxe Doernberger & Vita, P.C. and Brendan C. Colt, Saxe Doernberger & Vita, P.C. Mr. Holt may be contacted at bch@sdvlaw.com Mr. Williams may be contacted at hsw@sdvlaw.com Read the court decision
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Illinois Court of Appeals Addresses What It Means to “Reside” in Property for Purposes of Coverage

July 16, 2023 — James M. Eastham - Traub Lieberman
In Dardar v. Farmers Auto. Ins. Ass'n, 2023 IL App ( 5th ) 220357-U, the Illinois Fifth District Court of Appeals addressed an insured’s suit against her property insurer after the carrier denied coverage for a fire loss. The property in question was inherited by the Plaintiff from her brother and was in the process of being renovated at the time of the fire loss. After the fire, the Plaintiff’s homeowners carrier denied the claim on the grounds that the Plaintiff was not occupying the property at the time of the fire and was therefore not covered under the terms of the policy. It was undisputed that the Plaintiffs never lived in or physically occupied the home. Correspondingly, the carrier denied the claim on the basis that the policy only covered the Plaintiff’s "residence premises," which was defined as: (1) the one-family dwelling where you reside; (2) the two, three, or four-family dwelling where you reside in at least one of the units; or (3) that part of any other building in which you reside. The carrier determined that the Plaintiff did not “reside” at the property and therefore were not covered under the policy terms. 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

The Multigenerational Housing Trend

May 02, 2014 — Beverley BevenFlorez-CDJ STAFF
Reuters reported that “[m]ore than 50 million Americans already live in multigenerational situations, according to Pew Research, and the number is expected to grow as baby boomers age.” Lennar Corp has “Next Gen” home models, which provides multigenerational housing for prices similar to traditional homes. For instance, according to Reuters, one of the Next Gen models contains “an 800-square-foot house-within-a-house” with “a separate entrance and its own patio, plus a bedroom, sitting area, and bathroom.” Other home builders are also providing multigenerational housing: “Gertz Fine Homes, which builds between 12-30 houses a year near Portland, Oregon, says about 30 percent of sales are now multigenerational models, which can cost around $600,000.” Read the court decision
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School District Settles Over Defective Athletic Field

December 11, 2013 — CDJ STAFF
The Hillsboro, Oregon School District has settled a lawsuit with Mahlum Architects of Portland, one of the four companies sued by the school district over problems with a soccer field. The total lawsuit was for $1.7 million. The architects have settled for $25,000. The manufacturer of Astro Turf also settled with the school for an as-yet undisclosed amount. What the school describes as the “primary defendants” have yet to settle. The school had to close the soccer field when drainage problems lead to large holes in the playing field. Read the court decision
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City of Aspen v. Burlingame Ranch II Condominium Owners Association: Clarifying the Application of the Colorado Governmental Immunity Act

June 17, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
On June 17, 2024, the Colorado Supreme Court delivered a significant opinion in the case of City of Aspen v. Burlingame Ranch II Condominium Owners Association (Case No. 22SC293). This decision provides crucial guidance on the interplay between the Colorado Governmental Immunity Act (“CGIA”) and the economic loss rule in the context of construction defect claims. Background of the Case The case arose from a construction defect dispute between the City of Aspen, which served as the developer and declarant for the affordable housing condominiums at issue, and the Burlingame Ranch II Condominium Owners Association, the HOA created by Aspen to manage the association after the period of declarant control. The Association alleged that Aspen breached various warranties related to the construction of affordable housing units, leading to structural deficiencies. Aspen argued that the CGIA barred these claims because they could lie in tort. The Lower Court’s Decision The district court initially agreed with Aspen, holding that the Association’s claims sounded in tort and were therefore barred by the CGIA. The court relied on the principle that governmental immunity protects public entities from liability for claims that ‘lie in tort or could lie in tort,’ as established by the CGIA. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Wisconsin Federal Court Addresses Scope Of Appraisal Provision In Rental Dwelling Policy

September 05, 2022 — James M. Eastham - Traub Lieberman
In Higgins v. State Farm Fire & Cas. Co., No. 22-C-198, 2022 U.S. Dist. LEXIS 117477 (E.D. Wis. July 5, 2022), the Court addressed the often disputed question of whether an appraisal provision in an insurance policy is limited to disputes over valuation or extends beyond valuation to causation and/or coverage. The underlying loss in the Higgins case involved a fire at a rental dwelling owned by the Plaintiff and insured by State Farm under a Rental Dwelling policy for, among other things, fire losses. Subsequent to being notified of the fire, State Farm investigated and provided the Plaintiff with its estimated cost of repair. Plaintiff disputed the estimate, including the repairs necessary, and also sought additional sums for debris removal and lost rent. The insurance policy at issue in Higgins included an appraisal provision which provided: “If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal.” Pursuant to this provision, Plaintiff demanded that State Farm submit to an appraisal to resolve the parties' disagreements. State Farm responded by indicating that it would enter into appraisal over the areas where there were "pricing differences" but not areas where there were "scope differences." According to State Farm, there were a number of issues regarding the scope of repairs necessary to restore the dwelling to its pre-loss condition. Plaintiff disagreed with State Farm's position and did not seek to move forward with the appraisal process on only the items State Farm identified as appropriate for appraisal. 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

Construction in the Time of Coronavirus

March 30, 2020 — Christopher G. Hill - Construction Law Musings
One cannot look look at one’s phone, computer or even the road outside the window without seeing signs of the impact that coronavirus (COVD-19) is having on the world at large. Schools are shut down, traffic is lighter and there is the daily count of new confirmed cases, in Virginia and elsewhere. “Social distancing” is the buzzword of the day. I am writing this post from a home office because of CDC and other guidance regarding the best way to “flatten the curve.” We have all been told to avoid large groups and stay close to home. All of this is well and good, but construction must go on. In travelling around Richmond, I see construction vehicles on the road quite a bit. This is a good thing. It seems that most of the Richmond, Virginia area contractors are trying to stay as close to “business as usual” as possible while still remaining vigilant and careful to follow CDC and OSHA guidelines on workplace activity and COVD-19. However, the situation is ever changing and government and other outside forces could lead to project slowdowns, project shutdowns or other virus related impacts to everything from permitting to staffing of a project. As I have discussed, likely ad nauseam, any commercial or residential construction project is controlled by a series of contracts (hopefully well drafted) that control the relationships on the job. Subcontractors in particular have the provisions of their subcontract and those of the prime contract to worry about. One of the major provisions that could trip up any construction professionals on these jobs is the notice provision of the subcontract (thanks for the reminder go to a friend and fellow construction lawyer Mark Cobb at his blog). 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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