Seattle Washington Building Expert Directory

New York Assembly Reconsiders ‘Bad Faith’ Bill

May 31, 2021 — Copernicus T. Gaza, Robert S. Nobel, Craig Rokuson, Eric D. Suben - Traub Lieberman
The New York State Assembly is considering A07285, which creates a private right of action for bad faith “if the insurer unreasonably refuses to pay or unreasonably delays payment without substantial justification.” The bill was first introduced in 2013 but was reintroduced on May 3, 2021 and has received some recent attention. According to the bill, an insurer acts unreasonably when it (among other things):

Fails to provide the claimant with accurate information regarding policy provisions relating to the coverage at issue; or
Fails to effectuate in good faith a prompt, fair, and equitable settlement of a claim or portion of a claim and where the insurer failed to reasonably accord at least equal or more favorable consideration to its insured's interests as it did to its own interests, and thereby exposed the insured to a judgment in excess of the policy limits or caused other damage to a claimant; or
Fails to provide a timely written denial of a claimant's claim, or portion thereof, with a full and complete explanation of such denial, including references to specific policy provisions wherever possible; or
Fails to act in good faith by compelling such claimant to initiate a lawsuit to recover under the policy by offering substantially less than the amounts ultimately recovered in such suit; or
Fails to timely provide, on request of the policy holder or the policy holder's representative, all reports or other documentation arising from the investigation of a claim; or
Refuses to pay a claim without conducting a reasonable investigation prior to such refusal.

Reprinted courtesy of Copernicus T. Gaza, Traub Lieberman, Robert S. Nobel, Traub Lieberman, Craig Rokuson, Traub Lieberman and Eric D. Suben, Traub Lieberman Mr. Gaza may be contacted at cgaza@tlsslaw.com Mr. Nobel may be contacted at rnobel@tlsslaw.com Mr. Rokuson may be contacted at crokuson@tlsslaw.com Mr. Suben may be contacted at esuben@tlsslaw.com Read the court decision
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Vacant Property and the Right of Redemption in Pennsylvania

April 06, 2016 — Suzanne Prybella – White and Williams LLP
In Pennsylvania, pursuant to the Municipal Claims and Tax Liens Act (53 P.S. §7293(a)) (the Act), the owner of a property sold under a tax or municipal claim may redeem the sold property at any time within nine months after the date of acknowledgment of the sheriff's deed by, in general, paying the amount of the debt. However, there is a caveat contained in the Act with respect to vacant property, which states that “there shall be no redemption of vacant property by any person after the date of the acknowledgment of the sheriff's deed.” (53 P.S. §7293(c)). In Brentwood Borough School District v. HSBC Bank USA, N.A., 111 A.3d 807 (Pa. Commw. Ct. 2015), a case of first impression before the Commonwealth Court of Pennsylvania, the court addressed the definition of “vacant property” under the Act and the timing of a petitioner to invoke the right of redemption with respect to vacant property. Read the court decision
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Reprinted courtesy of Suzanne Prybella, White and Williams LLP
Ms. Prybella may be contacted at prybellas@whiteandwilliams.com

U.S. Army Corps Announces Regulatory Program “Modernization” Plan

August 03, 2022 — Karen Bennett - Lewis Brisbois
Washington D.C. (June 17, 2022) - The U.S. Army Corps of Engineers and the Department of the Army recently announced plans to amend the Corps Civil Works program to better serve Indian nations and other disadvantaged and underserved communities. 87 Fed. Reg. 33758 (June 3, 2022). Comments are due by August 2, 2022. Several items warrant attention. The first are changes to Corps regulations on implementation of the National Historic Preservation Act (NHPA, or the Act) (33 CFR 325, Appendix C). Proposed options include suspension of the Corps’ Appendix C regulations and adoption of the Advisory Council on Historic Preservation’s (ACHP) regulations. Congress established the ACHP, an independent agency whose mission is to provide the President and Congress with advice as to policies and programs on historical preservation. The NHPA authorized the Council to promulgate regulations establishing procedures for evaluating the effect of a federal action on historic property. The Act also provides that a federal agency may promulgate its own regulations, consistent with the Council’s regulations. Where an agency has its own regulations, courts have consistently held that the agency’s regulations govern decision-making, provided they are not inconsistent with the Part 800 regulations. Most courts have generally regarded an agency’s regulations as inconsistent when they are less restrictive procedurally than the Council’s. Until today, the Corps has defended Appendix C and interim guidance (issued in 2005 and 2007) as consistent with the NHPA and specifically tailored for use in the Corps regulatory program. The announcement marks a significant directional change and gives the ACHP a larger role in Corps regulatory decisions. Read the court decision
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Reprinted courtesy of Karen Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

Capitol View-Corridor Restrictions Affect Massing of Austin’s Tallest Tower

October 17, 2023 — David M. Brown - Engineering News-Record
The stepped-back profile of a 66-story skyscraper in Austin, which will be the state capital’s tallest building when completed this fall, is a consequence of the city's height and massing limits to keep the view corridor to the capitol's dome unblocked. Reprinted courtesy of David M. Brown, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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New California Employment Laws Affect the Construction Industry for 2019

February 18, 2019 — Smith Currie
The California Legislature introduced more than 2637 bills in the second half of the 2017-2018 session that became law effective January 1, 2019, many of which address employment issues facing California employers in the construction industry. Below we have summarized some of the more important laws (the summary titles are live links to the text of the new law), and employers are urged to protect their companies by updating contracts, policies, and/or practices for compliance. The following is for general knowledge, and we recommend you consult with your attorney for specific legal advice. AB 1565 – Contractor Wage Liability: AB 1565 repeals the provision that relieved direct contractors for liability for anything other than unpaid wages and fringe or other benefit payments or contributions, including interest owed. In the past, a direct contractor could withhold “disputed” sums owed to a subcontractor if the subcontractor failed to provide “information” about their and lower-tier subcontractors’ payroll records. Read the court decision
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Reprinted courtesy of Smith Currie
Smith Currie attorneys may be contacted at info@smithcurrie.com

A Court-Side Seat: Butterflies, Salt Marshes and Methane All Around

November 16, 2020 — Anthony B. Cavender - Gravel2Gavel
Our latest summary of some recent developments in the courts and the federal agencies includes a unique case involving salt marshes adjacent to San Francisco Bay. THE FEDERAL COURTS A Wolf Among the Butterflies On October 13, 2020, the U.S. Court of Appeals for the District of Columbia Circuit decided the case of North American Butterfly Association v. Chad Wolf, Acting Secretary of the Department of Homeland Security. The National Butterfly Center is a 100-acre wildlife sanctuary located in Texas along the border between the United States and Mexico, and in 2017, the DHS exerted control over a segment of the sanctuary to construct facilities to impede unauthorized entry into the United States. It was alleged that the government failed to provide advance notice to the sanctuary before it entered the sanctuary to build its facilities. The Association filed a lawsuit to halt these actions for several reasons, including constitutional claims and two federal environmental laws (NEPA and the Endangered Species Act), but the lower court dismissed the lawsuit because of the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That law forecloses the applicability of these laws if the Secretary of DHS issues appropriate declaration. On appeal, the DC Circuit held, in a 2 to 1 decision, that the lawsuit should not have been dismissed. The plaintiffs had standing to file this lawsuit, but the jurisdiction stripping provisions of the IIRIRA, when invoked, required that the statutory claims be dismissed as well as a constitutional Fourth Amendment search and seizure claim. However, the plaintiff’s Fifth Amendment claim that the government’s actions violated their right to procedural due process must be reviewed. The Center was given no notice of the government’s claims and no opportunity to be heard before these actions were taken. The dissenting judge argued that the court was being asked to review a non-final decision, which it should not do. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Federal District Court Finds Coverage Barred Because of Lack of Allegations of Damage During the Policy Period and Because of Late Notice

December 29, 2020 — Robert Dennison - Traub Lieberman
In American Bankers Ins. Co. of Florida v. National Fire Ins. Co. of Hartford, 2020 WL 5630017 (Sept. 21, 2020), the Northern District of California of the United States District Court had occasion to consider whether allegations in an underlying complaint triggered a duty to defend and a late notice defense to coverage. The underlying actions were a suit against the City of Walnut Creek for damages from flooding allegedly caused by the City’s failure to develop and maintain its storm drains.The City settled the cases then sued its liability insurers who issued its coverage in the period 1968 to 1986 for indemnification of the amounts spent to defend and settle the cases.The published decision involved three Travelers’ policies issued to the City between 1968 and 1976, as to which Travelers sought summary judgment as to the lack of coverage in its policies. The district court first found that the definition of an “occurrence” in the policies, in one policy “an event or a continuous or repeated exposure to conditions which causes injury to person or damage to property during the policy period” and in the other two “an accident, including injurious exposure to conditions, which results during the period this policy is in effect, in bodily injury or property damage,” fell within the rule of Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, that injury or damage during the policy period must occur in order for the policy to be triggered.The court agreed with Travelers that while there were allegations of flooding for many years, the only claims/allegations of property damage were for the period 2000 and later.Therefore the property damage coverage in the policies was never triggered. Read the court decision
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Reprinted courtesy of Robert Dennison, Traub Lieberman
Mr. Dennison may be contacted at rdennison@tlsslaw.com

Sureties do not Issue Bonds Risk-Free to the Bond-Principal

August 30, 2017 — David Adelstein - Florida Construction Legal Updates
If your construction company is bonded, then you have signed a General Agreement of Indemnity with your surety / bonding company. Stated another way, if a surety issued an obligee on behalf of your construction company, as the bond-principal, a payment or performance bond, then you have signed a General Agreement of Indemnity with your surety. The General Agreement of Indemnity is NOT to be taken lightly. Without the General Agreement of Indemnity, the surety is NOT issuing the bonds you need to work on a certain project. A bond is not insurance and sureties do not issue the bonds under a risk-free premise. Oh no! If a surety has to pay-out claims under a bond, the surety will be looking to recoup that loss from the indemnitors that executed the General Agreement of Indemnity. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

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