SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

The Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?

March 17, 2011 — Shaun McParland Baldwin

The Court of Appeals of Indiana recently addressed the “Montrose” language added to the CGL ISO form in 2001 in the context of a construction defect claim where a fractured storm drain caused significant flooding a year after the drain was damaged. The insuring agreement requires that “bodily injury or “property damage” be caused by an occurrence and that the “bodily injury or “property damage” occur during the policy period. The Montrose language adds that the insurance applies only if, prior to the policy period, no insured knew that the “bodily injury or “property damage” had occurred in whole or in part. Significantly, it also states that any “bodily injury” or “property damage” which occurs during the policy period and was not, prior to the policy period known to have occurred, includes a continuation, change or resumption of that “bodily injury” or “property damage” after the end of the policy period.



In Grange Mutual Cas. Co. v. West Bend Mut. Ins. Co., No. 29D04-0706-PL-1112 (Ct. App. IN March 15, 2011), http://www.ai.org/judiciary/opinions/pdf/03151109ehf.pdf, Sullivan was the General Contractor for a school construction project. Its subcontractor, McCurdy, installed the storm drain pipes. One of the storm pipes was fractured in 2005 while McCurdy was doing its installation work. More than a year later, the school experienced significant water damage due to flooding. It was later discovered that the flooding was due to the fractured storm drain. Sullivanrsquo;s insurer paid $146,403 for the water damage. That insurer brought a subrogation claim against McCurdy and its two insurers: West Bend and Grange. West Bend had issued CGL coverage to McCurdy while the construction was ongoing, including the date in which the storm pipe was fractured. Grange issued CGL coverage to McCurdy at the time of the flooding. Those two carriers jointly settled the subrogation claim and then litigated which insurer actually owed coverage for the loss. Significantly, the loss that was paid included only damages from the flooding, not any damages for the cost of repairing the pipe.



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Reprinted courtesy of Shaun McParland Baldwin of Tressler LLP. Ms Baldwin can be contacted at sbaldwin@tresslerllp.com

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California Contractors – You Should Know That Section 7141.5 May Be Your Golden Ticket

February 18, 2020 — Amy L. Pierce, Mark A. Oertel & John Lubitz - Lewis Brisbois Bisgaard & Smith LLP
Under California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., all contractors’ and subcontractors’ licenses expire two years from the last day of the month in which the license issued, or two years from the date on which the renewed license last expired. The Contractors State License Board (CSLB) sends licensees a renewal application 60 to 90 days prior to the date the license is set to expire. Most contractors have various controls in place to make sure that the renewal application is timely filed and the required fee paid. Even so, we are only human and mistakes are made, and a renewal application filing deadline can be missed for a variety of reasons, e.g., the licensee’s mailing address has not been updated on the CSLB’s records, the individual responsible for filing the license renewal is out on leave, there has been a death in the family or a serious health issue, etc. Quoting Robert Burns, even “[t]he best-laid schemes of mice and men go oft awry” (To a Mouse, 1786). General contractors should be cognizant of both their and their subcontractors’ license renewal obligations and deadlines. If a licensee missed timely filing its renewal application, Business & Professions Code Section 7141.5may provide some relief. Section 7141.5 provides that the Registrar of Contractors,

“may grant the retroactive renewal of a license if the licensee requests the retroactive renewal in a petition to the registrar, files an application for renewal on a form prescribed by the registrar, and pays the appropriate renewal fee and delinquency fee prescribed by this chapter. This section shall only apply for a period not to exceed 90 days from the due date and only upon a showing by the contractor that the failure to renew was due to circumstances beyond the control of the licensee.”

Reprinted courtesy of Lewis Brisbois Bisgaard & Smith LLP attorneys Amy Pierce, Mark Oertel and John Lubitz Ms. Pierce may be contacted at Amy.Pierce@lewisbrisbois.com Mr. Oertel may be contacted at Mark.Oertel@lewisbrisbois.com Mr. Lubitz may be contacted at John.Lubitz@lewisbrisbois.com Read the court decision
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Microsoft Said to Weigh Multibillion-Dollar Headquarters Revamp

September 17, 2015 — Dina Bass & Hui-Yong Yu - Bloomberg
Microsoft Corp. is considering a multibillion-dollar revamp of its headquarters campus in suburban Seattle, seeking to foster more collaboration among employees and attract young engineers, according to people with knowledge of the plans. The software giant has hired architecture firm Skidmore, Owings & Merrill LLP as part of the effort at its Redmond, Washington, offices, said the people, who asked not to be named because the plans aren’t public. Skidmore Owings designed Dubai’s Burj Khalifa, the world’s tallest building, and is helping Microsoft with a makeover of its much smaller campus in Mountain View, California. Microsoft hasn’t yet decided whether to move forward with the Redmond overhaul, said one of the people familiar with the matter. Reprinted courtesy of Dina Bass, Bloomberg and Hui-Yong Yu, Bloomberg Read the court decision
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Georgia State and Local Governments Receive Expanded Authority for Conservation Projects

May 31, 2021 — David R. Cook Jr. - Autry, Hall & Cook, LLP
In the 2020-2021 session, the Georgia General Assembly amended existing laws to expand state and local governments’ authority to enter conservation projects. In connection with these projects, the contractor guarantees that cost savings or revenue increases will cover any payments for the project. Read more about conservation projects, including Guaranteed Energy Savings Performance Contracts With regard to school systems, conservation projects had previously included facility alterations designed to reduce energy or water consumption or operation costs. But the new law expands the permitted projects to include equipment purchases used in new construction or building retrofit, addition, or renovation. It also adds training programs incidental to the contract. Read the court decision
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Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Louisiana District Court Declines to Apply Total Pollution Exclusion

December 15, 2016 — William S. Bennett – Saxe Doernberger & Vita, P.C.
The United States District Court for the Eastern District of Louisiana recently decided that a broad total pollution exclusion in a marine general liability policy did not bar coverage. The insurer could not unambiguously establish, based on the facts of the underlying case, that waste from a shipyard’s sandblasting activities met the requirements of the exclusion. The court found that the insurer could not meet Louisiana’s three-part test to determine whether the policy’s total pollution exclusion applied. The Doerr test requires an insurer to refer to the allegations in the underlying complaint to prove 1) the insured is a “polluter”, 2) the injury-causing substance is a “pollutant,” and 3) there was a “discharge, dispersal, seepage, migration, release or escape” of the pollutant. Total pollution exclusions are extremely prohibitive for policyholders because they eliminate coverage for virtually all pollution incidents, but this decision reinforces that policyholders may still have a path to coverage. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

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COVID-19 Response: Environmental Compliance Worries in the Time of Coronavirus

April 20, 2020 — Karen Bennett, Jane Luxton, William Walsh & Amanda Tharpe - Lewis Brisbois
Earlier this week, a rumor made the rounds that a forthcoming Presidential Executive Order would impose a nationwide mandate that all employees work remotely. While the rumor proved baseless, it raised questions about manufacturers’ abilities to comply with environmental permit obligations in the event of a COVID-19 precipitated operational shutdown due to federal or state mandates or workforce depletion resulting from widespread illness. Previous emergencies offer some insights on what to expect as companies and their counsel assess environmental business risk. In the wake of Hurricane Katrina, several bills were introduced in Congress that would have allowed the Environmental Protection Agency (EPA) to waive or modify requirements, issue emergency permits, or expedite permits as needed to respond to disaster and recovery needs. In the end, no new legislation was enacted, because existing emergency powers under environmental statutes proved sufficient to allow for waiver of regulatory requirements or exercise of enforcement discretion. Key provisions include the following:

• The Clean Water Act’s (CWA) affirmative defense for “upset” conditions. This provision excuses non-compliance with technology-based permit effluent limitations due to factors outside the permittee’s control. Criteria for establishing the defense include: 1) the upset occurred and the permittee can identify the cause, 2) the permitted facility was at the time being properly operated, 3) the permittee submitted notice of the upset (24 hour notice), and 4) the permittee complied with any remedial measures required under 40 C.F.R. §122.41(d).

Reprinted courtesy of Lewis Brisbois Bisgaard & Smith attorneys Karen Bennett, Jane Luxton, William Walsh and Amanda Tharpe Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com Mr. William may be contacted at William.Walsh@lewisbrisbois.com Ms. Amanda may be contacted at Amanda.Tharpe@lewisbrisbois.com Read the court decision
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Virginia Chinese Drywall and pollution exclusion

May 27, 2011 — CDCoverage.com

In Nationwide Mut. Ins. Co. v. The Overlook, LLC, No. 4:10cv69 (E.D. Va. May 13, 2011), homeowner Edmonds sued insured developer/general contractor Overlook seeking damages resulting from defective Chinese drywall installed in Edmonds’ home. Overlook’s CGL insurer Nationwide defended Overlook under a reservation of rights and filed a declaratory judgment action. The federal district trial court granted Nationwide’s motion for summary judgment.

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Blurred Lines: New York Supreme Court Clarifies Scope of Privileged Documents in Connection with Pre-Denial Communications Prepared by Insurer's Coverage Counsel

September 17, 2015 — Greg Steinberg – White and Williams LLP
In a recent decision, the New York Supreme Court clarified the scope of privileged documents with respect to communications prepared by an insurer’s counsel prior to issuing a denial of coverage letter. The coverage litigation at issue arose out of MF Global Inc.’s claims under fidelity bonds for losses incurred as a result of large trades made by former MF Global employee, Evan Dooley. The trades cost MF Global, Dooley’s former clearing firm, $141 million after it had to reimburse the CME Group, Inc. futures clearinghouse that handled the trade. The insurers that issued the fidelity bonds contested coverage and sued MF Global in 2009. The opinion underscores the fact that there is no “bright line” rule in New York with respect to disclosure of communications in the insurance context prior to the issuance of a coverage determination – the disclosure requirement will instead turn on what’s actually privileged. In addition, while retention of counsel may not serve as an automatic shield for all documents prepared prior to the coverage decision, insurers will not be required to disclose, among other things, communications which include an “indicia of the provision of legal services.” Read the court decision
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Reprinted courtesy of Greg Steinberg, White and Williams LLP
Mr. Steinberg may be contacted at steinbergg@whiteandwilliams.com

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