Seattle Washington Building Expert Directory

Suing a Local Government in Land Use Cases – Part 2 – Procedural Due Process

February 16, 2017 — Wally Zimolong – Supplemental Conditions
n my last post I discussed suing a local government for a substantive due process violation. In this post, I discuss a the right to procedural due process. The Fourteenth Amendment of the United States Constitution protects prohibits the government from depriving an individual or business of life (in the case of an individual), liberty, or property without due process of law. Unlike the somewhat abstract and subjective concept of substantive due process, procedural due process is direct and objective. Generally, if an individual or business maintains a property or liberty interest, a local government must afford that individual or business notice that the government intends to deprive them of a liberty or property interest and a reasonable opportunity to be heard to contest the proposed deprivation. Unless there is an emergency, the notice and opportunity to be heard must be given before the government deprives an individual or business of a liberty of property interest. This is known as a pre-deprivation hearing. Because of the clear contours of the right, procedural due process violations are typically easier to prove than substantive due process violations. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Green Energy Can Complicate Real Estate Foreclosures

November 30, 2016 — Bob L. Olson – Snell & Wilmer Real Estate Litigation Blog
A quick drive through almost any newer residential community in the Southwest will show that a lot of residents are embracing “Green Energy” or renewable energy by placing solar panels on their properties. While most people would agree that increasing the use of alternative energy is socially responsible, there are a number of real estate investors that may view it as an opportunity to make additional profits by purchasing distressed properties with solar panels and then reselling those properties for more than they would be worth without solar panels. The theory is relatively straight forward as many believe that foreclosure of a deed of trust that was recorded before the solar panels were installed would extinguish any liens in favor of the vendor that sold or financed the sale of the solar panels. After all, it is generally held that “a valid foreclosure of a mortgage terminates all interest in the foreclosed real estate that are junior to the mortgage being foreclosed.” See SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. Adv. Op. 75, 334 P.3d 408, 412 (2014) (quoting Restatement (Third) of Property, Mortgages §7.1 (1997)). NOT SO FAST! While the general rule is that foreclosure of a senior lien terminates junior liens, most purveyors of solar panels do not encumber the property with mortgages or deeds of trust to secure payment of amounts they are owed. Rather, they typically either lease the solar panels to the property owner or secure repayment of the purchase price of the solar panels with a fixture filing under the Uniform Commercial Code (the “UCC”). Read the court decision
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Reprinted courtesy of Bob L. Olson, Snell & Wilmer
Mr. Olson may be contacted at bolson@swlaw.com

Read Before You Sign: Claim Waivers in Project Documents

July 06, 2020 — William E. Underwood - ConsensusDocs
Not all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims. Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable. So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future. Read the court decision
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Reprinted courtesy of William E. Underwood, Jones Walker LLP
Mr. Underwood may be contacted at wunderwood@joneswalker.com

The Insurance Coverage Debate on Construction Defects Continues

February 05, 2015 — Craig Martin – Construction Contractor Advisor
New Hampshire is the first court of 2015 to weigh in on construction defect coverage issues. The case, Cogswell Farm Condominium Association v. Tower Group, involved a typical situation. Lemery Building Company was hired to build 24 residential condominium units. After construction, the condominium association sued the builder asserting that the weather barrier, including the water/ice shield, flashing, siding, and vapor barrier, was defectively constructed and resulted in damage to the units due to water leaks. The condominium association also sued Lemery’s insurer for a determination as to whether the builder’s Commercial General Liability (CGL) insurer had to provide coverage for the claim. The trial court ruled against the condominium association, finding that the “your work” exclusion applied. The exclusion in the builder’s CGL policy provided that there was no coverage for property damage to “[t]hat particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Montana Federal Court Upholds Application of Anti-Concurrent Causation Clause

November 08, 2021 — Tred R. Eyerly - Insurance Law Hawaii
Interpreting Montana law, the federal district court found that the policy's anti-concurrent causation clause prevented coverage for the insured's damaged home. Ward v. Safeco Ins. Co. of Am., 2021 U.S. Dist. LEXIS 149051 (D. Mont. Aug. 9, 2021). Plaintiff was advised by her tenants that water was bubbling up from the ground. It was determined that water was leaking from a main pipe serving the property. Subsequently, this old pipe was abandoned, left in the ground, and replaced with a new pipe in a new path with new excavation. Nevertheless, the insured reported the incident to her agent under her Landlord Protection Policy issued by Safeco, but reported there was no damage to the property. Two months later, it was discovered a pipe burst again. The insured called her agent, who maintained the loss would not be covered, but agreed to submit a claim to Safeco. Safeco hired an inspector. A report stated that a portion of cracks found in the concrete perimeter of the home were not new and that the shape of the structure on which the house sat could explain their presence. The report noted that new cracks in the foundation could have been caused by a lack of care to make sure that the foundation was sufficient supported by consolidated soil during the excavation of the new water line. Based upon this report, Safeco denied coverage based upon the earth movement and water damage exclusions. 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

Insured's Remand of Bad Faith Action Granted

December 30, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court agreed remand of the insured's bad faith action to state court was appropriate. Kavanaugh v. Nat'l Union Fire Ins. Co., 2019 U.S. Dist. LEXIS 138465 (C.D. Calif. Aug. 15, 2019). The insured sued National Union and Great American Insurance Company in state court for failing to defend him in three civil actions. In the alternative, claims were brought against Gallagher Risk Management Services, Inc. and Chelsea Laing for professional negligence in failing to broker and procure adequate insurance for him. Laing acted as an "agent and/or broker and procured at least one of the policies at issue." Gallagher removed the action based on federal diversity jurisdiction. Although Laing was a citizen of California, Gallagher argued she was fraudulently joined and was a sham defendant, so her citizenship should be disregarded for purposes of diversity jurisdiction. The insured moved to remand because Laing was a proper defendant. 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

The Role of Code Officials in the Design-Build Process

November 16, 2023 — Grace Calengor - Construction Executive
Building codes are an integral part of the design-build process, but what role do building code professionals play throughout that process? Kevin McOsker, vice president of technology services for the government relations department at the International Code Council, breaks it down, from basic design to groundbreaking ideas to incorporating new technology and retrofitting older builds. McOsker, whose experience includes serving as building official for the city of Las Vegas, is no stranger to striking architecture and the safety protocols that go along with it. He believes that safety protocol starts before the contractors begin building and that contractors should be involved throughout the entire journey. Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Bar Against Forum Selection Clauses in Construction Contracts Extended to Design Professionals

October 28, 2015 — Garret Murai – California Construction Law Blog
It’s a tactic as old as war itself. You can often gain a strategic advantage by selecting the location of battle. The same is true in litigation. But as the next case illustrates, when it comes to disputes between contractors (and design professionals), it isn’t always the combatants who dictate where the battle will be fought. Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc. In Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc., Case No. A141010, California Court of Appeals for the First District (September 25, 2015), Texas architecture firm HKS Architects, Inc. (“HKS”) was hired to provide architectural services. HKS’ design service agreement included a Texas forum selection clause which provided:
As a condition precedent to the institution of any action [or] lawsuit all disputes shall be submitted to mediation” and “[a]ll claim , disputes, and other matters in question between the parties arising out of or related to the Agreement . . . be resolved by the . . . courts in . . . Texas.”
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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