SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Rhode Island Finds Pollution Exclusion Ambiguous, Orders Coverage for Home Heating Oil Leak

March 06, 2023 — Kayla S. O'Connor - Saxe Doernberger & Vita, P.C.
The Rhode Island case of Regan Heating and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc., et. al.1 provides much-needed guidance regarding ambiguity and the term “pollution.” In Regan, the Rhode Island Supreme Court held that a pollution exclusion contained in the Plaintiff’s “Commercial Package Policy” was ambiguous as to whether home heating oil that escaped into a customer’s basement constituted a “pollutant” under the policy. This case stems from a 2015 incident wherein Regan was in the process of removing an older heating system and installing a new heating system in a customer’s home when that customer discovered 170 gallons of home heating oil in his basement. The customer sued Regan, alleging negligence and demanding remediation for the property damage caused by the oil leak. Read the court decision
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Reprinted courtesy of Kayla S. O'Connor, Saxe Doernberger & Vita, P.C.
Ms. O'Connor may be contacted at KOconnor@sdvlaw.com

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Wisconsin High Court Rejects Insurer’s Misuse of “Other Insurance” Provision

March 04, 2019 — Michael S. Levine & David M. Costello - Hunton Andrews Kurth
The Wisconsin Supreme Court held last week in Steadfast Ins. Co. v. Greenwich Ins. Co. that two insurers must contribute proportionally to the defense of an additional insured under their comprehensive liability policies. In 2008, torrential rainstorms battered the Milwaukee area for two days. The downpour overwhelmed the city’s sewer system, causing significant flooding in homes throughout the region. Out of those floods sprang several lawsuits against the Milwaukee Metropolitan Sewerage District (“MMSD”) for negligent inspection, maintenance, repair, and operation of Milwaukee’s sewage system. MMSD was an additional insured under liability policies covering two other water service providers responsible for the city’s sewer systems. The first policy was issued by Greenwich Insurance Company for United Water Services Milwaukee, LLC, and the second was issued by Steadfast Insurance Company for Veolia Water Milwaukee, LLC. After learning of the lawsuits, MMSD tendered its defense of the sewage suits to both insurers. Steadfast accepted the defense; but Greenwich refused, claiming that its policy was excess to Steadfast’s based on an “other insurance” clause in Greenwich’s policy. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and David Costello, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Costello may be contacted at dcostello@HuntonAK.com Read the court decision
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Construction Termination Part 3: When the Contractor Is Firing the Owner

August 07, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Last week we discussed an Owner terminating a Contractor “for cause.” Today, it’s time for a 180: what is your role as the architect when the Contractor is quitting? First, be aware that there are valid reasons for a contractor to quit within the contract itself. Most of these have to do with either (a) time delays/stand stills or (b) failure of the Owner to make payments as required. The Contractor can suspend or terminate a contract with the Owner for cause, provided a 7 day written notice is given to Owner and Architect. See A201§14.1.3. (This can be an email notice as all AIA notice clauses now allow). Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Choice of Laws Test Mandates Application of California’s Continuous and Progressive Trigger of Coverage to Asbestos Claims

June 01, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Textron v. Travelers Casualty and Surety Co. (No. B262933, filed 2/25/20), a California appeals court held that the Restatement’s choice of laws factors mandated application of California’s continuous and progressive trigger of coverage to asbestos claims, overcoming an argument that a manifestation trigger should apply under Rhode Island law. Travelers insured Textron from 1966 to 1987. In 2011, Textron was sued by a California resident, Esters, for damages caused by mesothelioma resulting from asbestos exposure in California. The action was defended and settled by Travelers and other insurers under reservations of rights. Textron sued Travelers in California for a declaration that Travelers owed duties to defend and indemnify the Esters action. Travelers cross-complained, seeking reimbursement. The case turned on choice of law for trigger of coverage as between California and Rhode Island. Citing Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645 and Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1, the Textron court noted that California applies a continuous trigger to continuous or progressively deteriorating injury. By contrast, in Rhode Island a covered occurrence exists “when the damage … manifests itself, … is discovered or, … in the exercise of reasonable diligence is discoverable.” (Citing Textron, Inc. v. Aetna Cas. and Sur. Co. (R.I. 2002) 754 A.2d 742.) According to Travelers, the Esters action was not covered under Rhode Island law because the plaintiff’s mesothelioma was not diagnosed until 2010, after Travelers was off the risk. 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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Continuing Breach Doctrine

May 28, 2024 — David Adelstein - Florida Construction Legal Updates
Have you ever heard of the “continuing breach” doctrine? Probably not. It is not a doctrine commonly discussed. It’s a doctrine used to try to argue around the statute of limitations. In an older Southern District Court of Florida case, Allapattah Services, Inc. v. Exxon Corp., 188 F.R.Ed. 667, 679 (S.D.Fla. 1999), the court explained: “Under this [continuing breach] doctrine, a cause of action for breach of a contract does not begin to accrue upon the initial breach; rather, on contracts providing serial performance by the parties, accrual of a breach of contract cause of action commences upon the occurrence of the last breach or upon termination of the contract.” Recently, this doctrine came up in an opinion by Florida’s Fifth District Court of Appeal. In Hernando County, Florida v. Hernando County Fair Association, Inc., 49 Fla.L.Weekly D947b (Fla. 5th DCA 2024), a plaintiff appealed the trial court’s dismissal with prejudice of its breach of contract claim based on the statute of limitations. The plaintiff claimed the defendant breached the contract by its failure to substantially redevelop property. The trial court dismissed based on the statute of limitations. However, the complaint alleged the defendant’s failure to comply “with numerous other intertwined, ongoing, and continuing contractual duties and obligations.” Hernando County, supra. The Fifth District reversed based on the continuing breach doctrine: “Where the nature of the contract is continuous, statutes of limitations do not typically begin to run until termination of the entire contract.” Id. quoting and citing Allapattah Servs., Inc. 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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Warranty of Workmanship and Habitability Cannot Be Disclaimed or Waived Under Any Circumstance

May 01, 2023 — Jason Feld & Stephanie Wilson - Kahana & Feld LLP
Arizona residential construction and single-family home production is growing at a rapid pace. And just as fast as the homes are sold, homeowners are constantly seeking warranty repairs from their homebuilders. Despite having strong purchase documents with express warranty language, the Arizona Supreme Court in Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022) adopted a bright line rule that regardless of the contract, the implied warranty of workmanship and habitability (“implied warranty”) cannot be disclaimed or waived under any circumstance. The Arizona Supreme Court opinion provides clear guidance of the law in this area on the scope of the implied warranty in contracts between homebuyers and builder/vendors, specifically on the issue of whether an express warranty can negate and effectively waive the common law implied warranty – which is a definitive violation of public policy. The Zambrano decision involved a licensed real estate broker who bought a new single family home for herself in a newly constructed master planned community in Surprise, AZ. Zambrano entered into a valid sales contract with Scott Homes (homebuilder) which contained a stand-alone 45-page pre-printed form express warranty. The express warranty was to be the “only warranty applicable to the home.” The contract further clarified that the buyer was expressly disclaiming (and, thus, waiving) the implied warranty. The sales documents and express warranty were signed and authorized by Zambrano. A short time later, the home developed alleged “design and construction defects” that were “either time barred or outside the coverage” of the express warranty. Zambrano filed suit for the alleged defects based on the implied warranty. Scott Homes filed summary judgment based on the Zambrano’s waiver and disclaimer of the implied warranty in the purchase agreement. The trial court granted summary judgment and the matter was appealed up to the Arizona Supreme Court. Reprinted courtesy of Jason Feld, Kahana & Feld LLP and Stephanie Wilson, Kahana & Feld LLP Mr. Feld may be contacted at jfeld@kahanafeld.com Ms. Wilson may be contacted at swilson@kahanafeld.com Read the court decision
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Loss Caused by Theft, Continuous Water Discharge Not Covered

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for loss based on theft and water leaks was not covered under the property policy. SJP Props. v. Mount Vernon Fire Ins. Co., 2015 U.S. Dist. LEXIS 97216 (E.D. Mo. July 27, 2015). SJP Properties bought and sold foreclosed properties. On July 13, 2006, it purchased at a foreclosure sale a property in St. Louis. The property was not inspected before or after the purchase, and sat vacant for more than two years. No one checked regularly on the property. The property was insured under a commercial property policy issued by Mount Vernon, effective from March 8, 2006 to March 8, 2009. The policy covered vandalism, but excluded loss caused by theft. An exception for the exclusion provided coverage for "building damage caused by the breaking in or exiting of burglars." The policy also excluded loss or damage caused by fungus, wet rot, dry rot and bacteria or water leaks for a period of 14 days or more. 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

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Patagonia Will Start Paying for Homeowners' Solar Panels

October 15, 2014 — Caroline Winter – Bloomberg Businessweek
Patagonia plans to use state and federal tax credits to invest $13 million in the construction of solar panels on 1,000 homes in Hawaii, turning the eco-conscious retailer into the financial backer of a green electrical utility. With the announcement on Wednesday, Patagonia hopes companies across America will follow suit with similar efforts. “Any U.S. public or private company who pays their fair share of taxes can use this strategy to speed up the development of new energy infrastructure,” Rose Marcario, Patagonia’s chief executive, said in an interview. “And they can make money doing it and create jobs.” Patagonia is joining forces with a tiny solar-financing company, Kina’ole Capital Partners, as well as a local Hawaiian bank to create a $27 million fund to pay for rooftop installation and upkeep. Starting in Hawaii makes sense because of its abundant sunshine and sky-high electrical rates; Hawaiians currently pay three times the U.S. average for electricity. Read the court decision
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Reprinted courtesy of Caroline Winter, Bloomberg Businessweek
Ms. Winter may be contacted at cwinter10@bloomberg.net

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