SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Georgia Supreme Court Rules Construction Defects Can Constitute an Occurrence in CGL Policies

April 05, 2011 — Beverley BevenFlorez CDJ STAFF

Recently, the Supreme Court of Georgia reversed the decision in American Empire Surplus Lines Insurance Company v Hathaway Development Company, Inc. stating that because Whisnant’s faulty workmanship caused damage to the surrounding properties, the construction defects constituted “occurrences” under the Commercial General Liability (CGL) policy. Unlike the South Carolina Supreme court ruling in the case of Crossman Communities v Harleysville Mutual, the Georgia Supreme Court stated that an accident can happen intentionally if the effect is not the intended result.



Interestingly, the only dissenting judge, J. Melton, disagreed with his colleagues on the basis that “although the term ‘accident’ is not specifically defined in the policy, it is axiomatic that an ‘accident’ cannot result from ‘intentional’ behavior.” It is clear that what constitutes an occurrence in CGL policies is still being hotly debated.



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Deferred Maintenance?

December 17, 2024 — Daniel Lund III - Lexology
A Tennessee-based “outsourced maintenance vendor” to an engine company filed suit in Louisiana state court seeking to recover nearly $150,000 on “open account,” for work previously performed. The engine company removed the case to the Federal District Court in New Orleans and asserted as a defense that the vendor lacked a proper Louisiana construction contractor’s license. The engine company filed a motion for summary judgment based on the defense. Under Louisiana law, a contract between parties is “absolutely null”--considered to have never existed--where one of the parties performed services without a required Louisiana contractor’s license, and the combined work reaches a $50,000 threshold. The engine company asserted that the vendor performed typical construction contractor work, including plywood flooring, applied epoxy to concrete flooring, erected part of a commercial carport, undertook certain heavy demolition, and installed fences, guardrails, and wire racks. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Labor Code § 2708 Presumption of Employer Negligence is Not Applicable Against Homeowners Who Hired Unlicensed Painting Company

December 02, 2015 — Kristian B. Moriarty & Yvette Davis – Haight Brown & Bonesteel LLP
In Vebr v. Culp (Filed 10/28/2015, No. G050730), the Fourth District Court of Appeal affirmed a trial court’s grant of summary judgment in favor of homeowners, where an employee of an unlicensed painting company was injured on the premises. Despite the fact that the painting company was deemed unlicensed for failure to acquire workers’ compensation insurance, the negligence presumption of Labor Code § 2708 was inapplicable to the homeowners as de facto “employers" of the plaintiff. Plaintiff, Tomas Vebr, was employed by OC Wide Painting, a licensed painting contractor. OC Wide Painting had a license issued by the California Contractors State License Board, but had filed for an exemption from the requirement that it maintain workers’ compensation insurance. The exemption was granted on the basis OC Wide Painting “did not have any employees.” However, OC Wide Painting actually had multiple employees, including Vebr. Therefore, by operation of law, the license was deemed void. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP and Yvette Davis, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Ms. Davis may be contacted at ydavis@hbblaw.com Read the court decision
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President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy

May 20, 2019 — Anthony B. Cavender - Gravel2Gavel
1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:

• (A) states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;
• (B) reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;

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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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Advice to Georgia Homeowners with Construction Defects

October 02, 2013 — CDJ STAFF
NOLO Press has some advice for Georgia homeowners who have found construction defects. Their first advice is to make certain matters don’t get any worse. They note that the “the builder is not responsible for any damage that occurs to the home after you’ve discovered the problem.” You should keep records of those repairs, since you can’t get reimbursed unless you can prove what you spent. Some problems are covered under builder warranties, but usually only in the first year. But if it’s not covered, or the warranty has expired, NOLO notes that “you might not be out of luck.” The three options under Georgia law are to claim breach of contract, negligent construction, or fraud. NOLO gives the example that if the house was not built according to the plans, the builder might be found guilty of breach of contract. If the builder worked in “a shoddy manner that no other builder would use,” then it might be negligent construction. “If the builder outright lied about the quality or type of materials used,” you might have a claim for fraud. However, NOLO notes that first you must notify the builder. Under Georgia law, you have to inform the builder of the problems 90 days before you can file a lawsuit, and the builder has 30 days in which to respond to your claims. The hope of Georgia’s Right to Repair Act is to avoid a lawsuit and get the house fixed. And that’s always the best result. Read the court decision
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IoT: Take Guessing Out of the Concrete Drying Process

February 06, 2019 — Aarni Heiskanen - AEC Business
Flooring, tiling, or painting on a concrete surface that is insufficiently dry can end up being a disaster. An experimental project recently used IoT sensors and AI to determine when it is safe to start finishing concrete surfaces. Haste and Imperfect Conditions Lead to Failure To successfully first cure and then dry concrete requires specific conditions. You need to maintain a temperature higher than 10°C and a relative humidity of greater than 80 percent in the concrete. Once the concrete is hardened, you have to make sure that it is dry enough for finishing. Typically, the relative humidity should not exceed 82 percent. Some flooring materials require a humidity of less than 75 percent for successful application. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Read the Property Insurance Policy to be Sure You are Complying with Post Loss Obligations

January 04, 2021 — David Adelstein - Florida Construction Legal Updates
I have discussed this before in prior postings, but it is worth repeating. It is imperative for an insured to comply with post loss obligations in a property insurance policy. Not doing so gives the insurer the argument that its insured forfeited coverage under the policy. Naturally, this is never what an insured wants as this is contrary to submitting an insurance claim to begin with. To avoid this situation, an insured should consult with counsel and read the policy including endorsements issued to the policy to be sure that post loss obligations are complied with and, if they are not, there is a basis supported by case law. In a recent case, Goldberg v. Universal Property and Casualty Ins. Co., 45 Fla. L. Weekly D2118b (Fla. 4th DCA 2020), the property insurance policy for hurricanes and windstorms contained the following through an endorsement issued to the policy: You must give notice of a claim, a supplemental claim, or reopened claim for loss or damage caused by the peril of windstorm or hurricane, with us in accordance with the terms of this policy and within three years after the hurricane first made landfall or the windstorm caused the covered damage. For purposes of this Section, the term “supplemental claim” or “reopened claim” means any additional claim for recovery from us for losses from the same hurricane or windstorm which we have previously adjusted pursuant to the initial claim. . . . 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

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The Pandemic, Proposed Federal Privacy Regulation and the CCPA

November 02, 2020 — Heather Whitehead - Newmeyer Dillion
The U.S. Senate Committee on Commerce, Science and Transportation met recently to discuss considerations for implementing federal privacy laws. Not surprisingly, the main impetus to reevaluate a federal framework is the ongoing COVID-19 pandemic with the greatly increased reliance on online working and school arrangements, as well as the need to share personal information for contact tracing and other efforts to weaken the pandemic. While federal regulation of personal information has been proposed in the past, there are a few key issues that still remain unresolved. One is enforcement of the regulations. The issue is whether enforcement should be handled by the Federal Trade Commission or if the establishment of a new federal authority is needed to enforce privacy requirement violations. Other key outstanding issues include pre-emption of state rights and whether any regulations should include a private right of action. Given that the California Consumer Privacy Act of 2018 (CCPA) is the most stringent state regulation addressing data privacy in the United States, California Attorney General Xavier Becerra participated as a witness in the recent Senate Hearing. He shared his opinions as to both federal pre-emption and the need for a private right of action. He recommended that the committee preclude federal regulation from pre-empting state laws, including the CCPA. He noted that individual states are in a better position to adapt and keep up with technological innovation, and that some states have also already implemented thorough privacy protections, such as Mississippi and Washington. With respect to the private right of action, he admitted his office can only do so much to enforce these regulations amongst California’s huge population of businesses and residents. His belief is that individual consumers need the ability to pursue their own remedies in court. Read the court decision
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Reprinted courtesy of Heather Whitehead, Newmeyer Dillion
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com

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