Seattle Washington Building Expert Directory

Consequential Damages Can Be Recovered Against Insurer In Breach Of Contract

July 22, 2019 — David Adelstein - Florida Construction Legal Updates
In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.” Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted). Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract. In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent. However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Sustainability Puts Down Roots in Real Estate

January 27, 2020 — Stephanie Amaru - Gravel2Gavel Construction & Real Estate Law Blog
Sustainability has evolved from a passing trend or niche preference into an undeniable, growing driver of the real estate market. This is particularly true as millennials comprise an increasing proportion of the workforce, home-buying population, and individuals influencing the future of real estate development in the United States. If anything illustrates the significance of younger generations’ increasing interest in sustainability, it is the Global Climate Strike that drew participation of many thousands of young people, with 2,500 events scheduled in over 150 countries. In New York City, 1.1 million public school students were excused from school to join the strike in an event planned to precede the UN Summit, which itself was intended to push countries toward a commitment to faster transition to renewable energy and stricter climate targets. While both policymakers and citizens of previous generations have been split on their willingness to address global climate change with urgency, younger generations are feeling a stronger sense of responsibility for curbing the world’s trajectory towards a climate catastrophe, which will be inherited by them and their children. This has manifested in action that promotes awareness of and political action with respect to these issues—such as the Global Climate Strike—as well as evolving habits and preferences in both consumer goods and real estate. Greener Space In recent years, real estate developers have recognized that there is a market for “greener” developments that reduce annual expenditures on buildings, whether it be through small spaces requiring less electricity and promoting energy efficiency, or through renewable energy options such as solar photovoltaic power. Some real estate developers have chosen to install these options themselves, while others seek out sustainable financing options to cover the costs of renewable energy. If installing renewable energy is too costly, real estate developers will seek out more cost-effective locations for their brick-and-mortar operations. Read the court decision
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Reprinted courtesy of Stephanie Amaru, Pillsbury
Ms. Amaru may be contacted at stephanie.amaru@pillsburylaw.com

Investigators Eye Fiber Optic Work in Deadly Wisconsin Explosion

July 18, 2018 — Jeff Yoders – Engineering News-Record
A hole punched into a 4-in.-dia gas pipeline during fiber-optic line laying is blamed for an explosion that killed a 34-year-old fire captain and injured nine other people, including four firefighters, in downtown Sun Prairie, Wis., on July 10. The injured were treated at nearby hospitals and have since been released. Read the court decision
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Reprinted courtesy of Jeff Yoders, ENR
Mr. Yoders may be contacted at yodersj@enr.com

Catch 22: “If You’re Moving Dirt, You Need to Control Your Dust” (But Don’t Use Potable Water!)

February 18, 2015 — Stephen McKae – California Construction Law Blog
Returning from an Oregon vacation this past Summer along I-5, I found frequent reminders of the extraordinary drought conditions prevailing across California. A grey smoky gloom blanketed the California-Oregon border from Ashland to Weed from at least five wildfires. The prediction of rains in the north state was more curse than blessing as lightning threatened to touch off tender-dry fuel in the forests and start more fires. Farmers tilling fields produced massive dust clouds. And under the I-5 bridge along the Sacramento River arm of Lake Shasta, the lake had receded to the original streambed. On NOAA’s Palmer Drought Severity Index, nearly all of California is listed as in a condition of extreme or severe drought, and the Governor has issued a Proclamation of Continued State of Emergency requiring water conservation measures affecting all California residents. Indeed, early August news reports indicate that hopes of relief from an El Nĩno year are waning. The State Water Resources Control Board’s Emergency Regulation No. 2014 issued July 15 mandates action to reduce water use and require larger water suppliers to activate their Water Shortage Contingency Plan. The emergency regulation will remain in effect until April 25, 2015 unless extended due to ongoing drought conditions. Read the court decision
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Reprinted courtesy of Stephen McKae, Wendel Rosen Black & Dean LLP
Mr. McKae may be contacted at smckae@wendel.com

Construction Managers, Are You Exposing Yourselves to Labor Law Liability?

February 22, 2021 — Timothy P. Welch - Hurwitz & Fine, P.C.
When dealing with construction site accidents, who a party is matters. Under Labor Law sections 200, 240(1) and 241(6) owners, contractors, and their agents have a non-delegable duty to provide reasonable and adequate protection to workers from risks inherent at work sites, with a specific emphasis placed on elevation-related hazards. Given the near strict liability nature of Labor Law section 240(1), it is critical to identify whether a party is a proper Labor Law defendant from the get-go. While identifying the owner (and usually the contractor) may be relatively straightforward, identifying “their agents” has proven to be a more complex undertaking. It should be noted that the requirements set forth in the Labor Law are non-delegable from the standpoint of the owner or contractor, however, the duties themselves can be assigned to “agents” of an owner or “agents” of a contractor. When such an assignment occurs, the same non-delegable duty held by the owner or contractor is imposed on the agents as well. Moreover, “once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity.[1]” An entity that often skirts the line between being an agent and not, is the Construction Manager. Traditionally, the Construction Manager has been found to be outside the purview of the Labor Law when its scope of work is narrowly focused on scheduling and general coordination of the construction process. However, when a Construction Manager’s scope expands, so does its risk that it may, in fact, become a proper Labor Law defendant. Read the court decision
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Reprinted courtesy of Timothy P. Welch, Hurwitz & Fine, P.C.
Mr. Welch may be contacted at tpw@hurwitzfine.com

Bad Faith Claim for Investigation Fails

January 07, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insurer prevailed in summary judgment, disposing of the insured's bad faith claim based upon the investigation of the loss. Nino v. State Farm Lloyds, 2014 U.S. Dist. LEXIS 163993 (S.D. Tex. Nov. 24, 2014). The insured filed a claim with State Farm for damage resulting from a hailstorm on March 29, 2012. An independent adjuster, Charles Crump, conducted an investigation on behalf of State Farm. Crump inspected the roof, where he noted prior repair to the roof, and found no covered damage to the roof as the result of the 2012 hailstorm. Crump found minimal damage to other parts of the house, totaling $2,311.75, which resulted in no payment after the deduction. Crump provided the insured with a printed copy of his damage estimate. The insured then hired a public adjuster who found damage totaling $31,991.72, including $10,051.22 in roof repairs. 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

Amazon Can be Liable in Louisiana

August 05, 2024 — Michael J. Ciamaichelo - The Subrogation Strategist
In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims. Amazon Can be a “Seller” Under the Louisiana Products Liability Act Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program. Read the court decision
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Reprinted courtesy of Michael J. Ciamaichelo, White and Williams
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

Render Unto Caesar: Considerations for Returning Withheld Sums

January 18, 2021 — William E. Underwood Partner, Jones Walker LLP - ConsensusDocs
Withholding sums during a dispute can be an effective and perfectly legitimate means to protect against the harms caused by another party’s breach. However, withholding too much money during a dispute can turn a position of strength into one of weakness. “Why should I fund the other side’s litigation war chest?” and “Isn’t this just a display of weakness?” are common questions raised by contractors when this issue is discussed. Often, the contractor is well within its contractual or legal rights to withhold money from a breaching subcontractor (another topic for another day). But it may not always be in a contractor’s best interest to withhold every single penny available. This article addresses some of the long-term implications for failing to return withheld sums, including the potential to recover attorneys’ fees, possible bad faith, accruing interest, and overall litigation costs. Admittedly, it can be hard to give money back in the middle of a dispute. But sometimes it can positively impact the overall outcome of the case. Read the court decision
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Reprinted courtesy of William E. Underwood, Jones Walker LLP (ConsensusDocs)
Mr. Underwood may be contacted at wunderwood@joneswalker.com

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