Seattle Washington Building Expert Directory

What’s in a Name? Trademarks and Construction

April 25, 2022 — Carol Wilhelm and J.P. Vogel - Construction Executive
Every company, no matter the industry, relies on its name and reputation to develop customers and generate revenue. Think about the brands that dominate American culture such as Nike, Wal-Mart, Amazon or McDonald’s, then imagine those businesses without the ability to adequately protect their names, slogans and logos. No doubt the vultures would circle and brand power would most likely become short lived or otherwise diluted to the point of non-existence. The construction industry is not exempt, and the industry leaders benefit from identifiable names and logos, built over years of reputation and brand building. While the tools necessary to protect your company’s brand exist at the state and federal level, many business owners or leaders are unfamiliar with the trademark process and unaware of the consequences of not utilizing those tools. Trademark Registration Trademarks are “concise and unequivocal identifiers” that provide potential customers with essential information about your business. With a single word, tagline, logo, color—essentially anything that can carry meaning—potential customers learn to associate particular product or service characteristics and expected quality level with a particular source. That is, your mark is the way that consumers connect your expertise and reputation to your business and nobody else’s. It serves a critical role in reducing consumer search costs and capturing your hard-earned business opportunities. Reprinted courtesy of Carol Wilhelm and J.P. Vogel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Vogel may be contacted at jpvogel@grayreed.com Ms. Wilhelm may be contacted at cwilhelm@grayreed.com Read the court decision
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Compliance with Contractual and Jurisdictional Pre-Suit Requirements is Essential to Maximizing Recovery

November 27, 2023 — Michael S. Levine, Geoffrey B. Fehling & Charlotte Leszinske - Hunton Insurance Recovery Blog
Timely notice is an important first step in a successful insurance recovery. But insurance policies are not always straightforward in identifying how, when, and to whom notice must be provided. Some states may also impose additional procedural hurdles, including requiring policyholders to contact their insurers before filing suit (the idea behind this requirement is that it may avoid litigation). Failing to comply with pre-suit requirements can hurt the policyholder’s recovery, as illustrated in a recent decision from the Northern District of Texas. In NewcrestImage Holdings, LLC v. The Travelers Lloyds Insurance Company, No. 2:23-cv-039-BR (N.D. Tex. Oct. 17, 2023), the court considered whether NewcrestImage had forfeited its right to recover attorneys’ fees by failing to give Travelers pre-suit notice. NewcrestImage had filed suit against Travelers to obtain coverage for damage to its hotel property arising out of Winter Storm Uri. In its answer, Travelers asserted that NewcrestImage failed to provide the insurer with pre-suit notice as required under the Texas Insurance Code, and that if NewcrestImage successfully proved it was entitled to coverage, NewcrestImage’s failure to provide pre-suit notice precluded it from recovering attorneys’ fees. Travelers later moved to strike the claim for attorneys’ fees on that basis. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Charlotte Leszinske, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Ms. Leszinske may be contacted at cleszinske@HuntonAK.com Read the court decision
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Professional Liability and Attorney-Client Privilege Bulletin: Intra-Law Firm Communications

January 07, 2015 — David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLP
Attorney-Client Privilege Protects Confidential Communications Between Law Firm Attorney Representing Current Client and Firm’s General Counsel Regarding Disputes with Client Who Later Files Malpractice Suit In a case of first impression in California, Edwards Wildman Palmer LLP v. Superior Court (No. B255182 - filed November 25, 2014), Division Three of the Second District Court of Appeal addressed the question of whether the attorney-client privilege applies to intrafirm communications between law firm attorneys concerning disputes with a current client, when that client later sues the firm for malpractice and seeks to compel production of such communications. The court concluded that when an attorney representing a current client seeks legal advice from the law firm’s designated in-house “general counsel” concerning disputes with the client, the attorney-client privilege applies to their confidential communications. The court held that adoption of the so-called “fiduciary” or “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are precluded from creating implied exceptions to the statutorily created attorney-client privilege. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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The Future of Pandemic Coverage for Real Estate Owners and Developers

November 09, 2020 — Ashley McWilliams - Saxe Doernberger & Vita
Shutdowns resulting from the COVID-19 pandemic have prompted an unprecedented number of business income and business interruption insurance claims. Many claims have resulted in litigation and require judicial intervention to determine whether private insurance carriers owe policyholders indemnification for pandemic related losses. Private insurance carriers that have denied the claims, in large part, argue that they did not underwrite coverage for the pandemic and assert that pandemic coverage is much too unpredictable to underwrite. Private carriers contend that a government-backed insurance program is necessary to mitigate the economic impact resulting from pandemic claims. The COVID-19 pandemic has significantly impacted real estate owners and developers. Real estate owners and developers have sustained business income losses in the form of lost rents at commercial properties, service disruption, labor and/ or material shortages, to name a few. Questions about whether the virus caused “direct physical damage,” as well as whether specific “virus exclusions” on policies, have provided hurdles to coverage under existing schemes, click here.Those that have filed lawsuits against their insurers seeking coverage under current policy terms are having mixed results, at best. Click here to view SDV’s Litigation Tracker. A predictable source of indemnification for future pandemic-related losses would greatly relieve business disruption and, ultimately, the impact on the economy. However, the question remains, who will pay for such massive losses? Read the court decision
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Reprinted courtesy of Ashley McWilliams, Saxe Doernberger & Vita
Ms. McWilliams may be contacted at AMcWilliams@sdvlaw.com

Good News on Prices for Some Construction Materials

June 28, 2021 — ABC - Construction Executive
The elevated price of softwood lumber, a major talking point during much of the pandemic, appears to have peaked in early May at more than $1,700 per thousand board feet. As of June 23, the price has fallen below $900 per board feet, down about 49% in less than two months. That’s still an unusually lofty price by historic standards—prices remain almost twice as high as in February 2020—but the trend is very much in the right direction. Builders that had been hoarding lumber have now begun to sell from their own inventory, other builders have delayed lumber purchases in anticipation of lower prices and sawmill operators have been adding shifts, as well as expanding capacity, all of which puts downward pressure on prices. Reprinted courtesy of ABC, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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The Leaning Tower of San Francisco

January 24, 2018 — Dave Suggs - CDJ STAFF
The Millennium Tower located at 301 Mission Street in San Francisco, California opened in 2009 and is fifty-eight stories high. It is comprised of expensive apartments with price tags in the millions. “Yet for all its curb appeal, the building has, quite literally one fundamental problem: it’s sinking into mud and tilting towards its neighbors” reports John Wetheim of CBS News in the 60 Minutes segment about the condition of the tower “San Francisco’s Leaning Tower of Lawsuits.” In the Tower’s basement along columns that protrude from the foundation of the building there are stress gauges lining the walls illustrating cracks with slow growth which is cause for concern. The tower is tilting a total of 14 inches toward the northwest and has sunk 17 inches so far. Petar Marinkovic, an engineer for the European Space Agency estimates that the tower is sinking 1.5 to 2 inches per year. Jerry Cauthen, a local engineer, weighs in on what he believes is the cause of the sinking and leaning; it was built from concrete instead of steel. “Concrete is often cheaper. And it’s just as good, but it is a lot heavier. And so you got to design your foundation and your sub-surface to support that higher weight.” A local geotechnical engineer, Larry Karp agrees stating that the foundation of a building of this size and weight should be on solid rock (bedrock). The Millennium Tower is sitting on layers debris from the 1906 earthquake, a gold rush landfill, as well as clay, mud, and sand. There over 20 parties involved in the Millennium Tower lawsuits so far. Solutions to “fix” the tower’s issues range from removing 20 stories from the top of the building to perpetually freezing the ground beneath the building. There are also ongoing mediation talks to determine the feasibility of drilling down to bedrock under a building where a thousand residents are still upstairs. Read the court decision
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Travelers v. Larimer County and the Concept of Covered Cause of Loss

May 10, 2013 — Brady Iandiorio
Travelers Indemnity Company (“Travelers”) recently won a decision against Larimer County regarding a claim for damage caused to the roofs of several buildings at the County Fairgrounds. Travelers Indemnity Company v. Board of County Commissioners for Larimer County, Slip Copy, 2013 WL 238865, p. 1 (10th Cir. 2013). Larimer County alleged, in district court, that snowstorms and the weight of the snow build-up caused damage to the roof structures. Id. After the district court found for Travelers on a motion for summary judgment, Larimer County appealed the ruling, claiming that Traveler’s was obligated under the insurance policy to pay for repair costs to portions of the roofing structure. Id. The underlying claim for repairs originates with several snowstorms that caused damage to several buildings on the County Fairgrounds. The damage claimed was widespread to the roof structures, evidenced by rolling and buckling purlins (horizontal beams running along the length of the roof, resting upon the principal rafters at right angles and supporting the ordinary rafters). Travelers denied the claim based on its own investigation which concluded the damage was caused by design and construction defects, and therefore excluded from coverage under the insurance policy. Read the court decision
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Reprinted courtesy of Brady Iandiorio
Mr. Iandiorio can be contacted at iandiorio@hhmrlaw.com

Michigan Court of Appeals Remands Construction Defect Case

February 14, 2022 — Tred R. Eyerly - Insurance Law Hawaii
After its prior decision holding there was no coverage for faulty workmanship was remanded by the Michigan Supreme Court, the Court of Appeals remanded to the trial court. Skanska United States Bldg. v. M.A.P. Mech. Contrs., 2021 Mich. App. LEXIS 7336 (Mich. Ct. App. Dec. 28, 2021). The post summarizing the Supreme Court decision is here. Skanska USA Building was the construction manager on a renovation project at a medical center. Skanska subcontracted the heating and cooling portion of the project to defendant M.A.P. MAP held a CGL policy from Amerisure. Skanska and the medical center were named as additional insureds. MAP installed a steam boiler and related piping for the heating system. When completed, the heating system did not function properly. MAP installed some of the expansion joints backwards, causing damage to concrete, steel, and the heating system. 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

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