SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Preserving your Rights to Secure Payment on Construction Projects (with Examples)

March 22, 2017 — David Adelstein – Florida Construction Legal Updates
All participants across the construction industry should understand what efforts they should take to maximize and collateralize payment. No one wants to work for free and, certainly, no one in the construction industry wants to work without ensuring there is some mechanism to recover payment in the event they remain unpaid. Being proactive and knowledgeable can go a long way when it comes to recovering your money. Your Contract – It starts with the contract. You should understand those risks that are allocated to you and those that are allocated to another party. And, you should understand the contractual mechanism to resolve claims and disputes and whether your contract has a prevailing party attorney’s fees provision. In addition to contractual rights, there are tools for you to maximize your collection efforts. 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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Avoiding Lender Liability for Credit-Related Actions in California

October 27, 2016 — Anthony J. Carucci – Snell & Wilmer Real Estate Litigation Blog
Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real Est. § 35:3 (explaining that the business of lending money is subject to the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., the Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq., the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq.). Specifically, lenders have been held liable for credit-related actions where, among other things, the lender (1) breached a loan commitment; (2) committed fraud; or (3) breached a fiduciary duty owed to the borrower. The Lender-Borrower Relationship As a general rule, a lender does not owe a duty of care to a borrower when the lender’s involvement in a transaction does not exceed the scope of its conventional role as a lender of money. Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 466 (“[I]t is established that absent special circumstances . . . a loan transaction is at arms-length and there is no fiduciary relationship between the borrower and lender.”); Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 (holding lender owed no duty of care to a borrower in preparing an appraisal of the real property that was security for the loan when the purpose of the appraisal is to protect the lender by satisfying it that the collateral provided adequate security for the loan, and noting that “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money”). Read the court decision
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Reprinted courtesy of Anthony J. Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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#5 CDJ Topic: David Belasco v. Gary Loren Wells et al. (2015) B254525

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Chapman Glucksman Dean Roeb & Barger attorneys Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper analyzed the above mentioned Belasco case, in which “the Second District Court of Appeal made clear that settlement agreements containing waviers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld.” Glucksman, et al. explained that “the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.” Read the full story... In another article on the subject, Edward A. Jaeger, Jr. and William L. Doerler of White and Williams LLP concluded, “The Court of Appeal’s holding establishes that, despite the prohibition against the release of unknown claims set forth in section 1524 and the protections provided to homeowners by the Right to Repair Act, California homeowners can, in fact, release or waive claims against homebuilders for future, latent construction defects. To release or waive such claims, the language of any settlement agreement should be unequivocal.” Read the full story... Read the court decision
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LaGuardia Airport Is a Mess. An Engineer-Turned-Fund Manager Has a Fix

May 26, 2019 — Sree Vidya Bhaktavatsalam - Bloomberg
Thierry Déau’s engineering training in France led him early in his career to building government-funded infrastructure. But it was his entrepreneur father back home in Martinique who inspired him to strike out on his own in 2005. He started Paris-based Meridiam to finance, build, and manage long-term projects. Now, with €7 billion ($7.83 billion) in seven funds and nine offices across Europe, the Middle East, Africa, and North America, Meridiam is playing a key role in high-profile projects such as the upgrade of New York’s LaGuardia Airport and a road tunnel under the Port of Miami. Déau describes Meridiam’s investment approach in an interview with Bloomberg Markets. Read the court decision
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Reprinted courtesy of Sree Vidya Bhaktavatsalam, Bloomberg

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Coverage Article - To Settle or Not To Settle?

September 20, 2017 — Tred R. Eyerly - Insurance Law Hawaii
My colleagues Rina Carmel, Karin Aldama and I authored an article entitled, "To Settle or Not to Settle? Bad-Faith Implications in Resolving Underlying Actions." The article appears in the current edition of Coverage, published by the Insurance Coverage Litigation Committee of the ABA. The article is here. The article addresses the obstacles faced when settling liability claims. The insurer and insured may have fundamental disagreements on whether to settle or how much to pay in settlement. Should the insured contribute to the settlement? Whether the insurer should seek from the policyholder, or the policyholder offers to make, a settlement contribution presents thorny issues, including whether such a contribution can convert an excess demand into a demand within limits—which, in turn, affects the standard for evaluating the insurer’s response to the third-party demand. On the other hand, the policy holder may not want to settle and set a bad precedent. 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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California Court Forces Insurer to Play Ball in COVID-19 Insurance Coverage Suit

December 13, 2022 — Latosha M. Ellis & Yosef Itkin - Hunton Insurance Recovery Blog
One of the threshold issues in COVID-19 insurance coverage cases that have been brought across the country is whether the policyholder’s allegations meet the applicable pleading standard in alleging that the virus caused physical loss or damage. In many cases, the courts have gotten it wrong, effectively holding policyholders to a higher standard than required. But recently, a California federal judge righted those wrongs by acknowledging the correct pleading standard in that case, which is whether the allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court, here, correctly recognized that the policyholder, the Los Angeles Lakers, met that pleading standard when it alleged that the COVID-19 virus can cause physical loss or damage by physically altering property. In its complaint, the Los Angeles Lakers alleged that the virus physically altered its property by changing its chemical and physical property conditions, creating viral vectors that required remedial measures before the property was safe again. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 591 F. Supp. 3d 672 (C.D. Cal. 2022), adhered to on reconsideration, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022). The Court agreed that these allegations by the Lakers adequately pled physical alteration to support a claim for property damage. The insurer requested reconsideration of the decision, and the Court emphatically affirmed its prior decision, explaining its rationale as follows: The Court lacks the scientific expertise necessary to conclude, based solely on the allegations in the FAC . . . that it is not plausible for the Lakers’ property to have been physically altered by the Virus, which the Lakers adequately alleged. Consequently, the Court, in the March 17 Order, concluded that the Lakers’ theory was plausible. Whether the Lakers can actually prove its theory will be determined at summary judgment or trial. Reprinted courtesy of Latosha M. Ellis, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Ms. Ellis may be contacted at lellis@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the court decision
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Insurer Prohibited from Bringing Separate Contribution Action in Subrogation to Rights of Suspended Insured

January 15, 2019 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel LLP
In Travelers Property Casualty Co. of Amer. v. Engel Insulation, Inc. (No. C085753, filed 11/30/18), a California appeals court held that an insurer may not file its own action to assert claims solely as a subrogee of a suspended corporation, where the corporation could not otherwise assert the claims on its own behalf. In Engel, a homeowners association filed a construction defect action against the developer, Westlake. Travelers defended Westlake as an additional insured on the policy of a subcontractor. After the case settled, Travelers brought a subrogation action against another subcontractor for contribution to the defense costs. However, Westlake had its corporate status suspended for failure to pay taxes, and the subcontractor moved for judgment on the pleadings, which was granted. 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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House Approves $715B Transportation and Water Infrastructure Bill

July 11, 2021 — Tom Ichniowski - Engineering News-Record
Another building block for infrastructure legislation has moved into place with the House’s approval of a five-year $715-billion surface transportation and water infrastructure package. Reprinted courtesy of Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... Read the court decision
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