Seattle Washington Building Expert Directory

Addressing the Defective Stucco Crisis

November 28, 2018 — Wally Zimolong - Supplemental Conditions
I received several emails regarding the expose by Caitlin McCabe and Erin Arvedlund in the Philadelphia Inquirer titled “Rotting Within.” The story outlines the epidemic of defective stucco and other “building envelope” issues in Southeastern Pennsylvania that is causing homes to literally rot from within. Having litigated several of these cases, they are frustrating for both the attorneys that handle them and the homeowners who must deal with the reality that their home is rotting away. The story points to the multiple (and all too common) causes for the epidemic: unskilled subcontractors, lack of oversight and care, and poor construction drawings. The is no quick solution to the crisis and litigation regarding these defects is sure to proliferate. However, there is one potential solution that the story does not cover and which could help alleviate some of the challenges homeowners face in recovering damages for their claims. The Pennsylvania Legislature must act to change the insurance laws in Pennsylvania to make defective construction covered by a developer’s, contractor’s, and subcontractor’s commercial general liability policy (“CGL”). Most homeowners and many attorneys incorrectly assume that defective construction is covered by insurance. This assumption makes sense. If someone operates a car in a negligent manner and hits your car and causes damage, the negligent driver’s insurance company with cover your loss. In reality, Pennsylvania courts follows a minority of states that holds that generally speaking defective workmanship is not a “covered occurrence” under an insurance policy. (There are several exceptions to this rule and thorough discussion is beyond this blog post and would probably bore you.) Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Note on First-Party and Third-Party Spoliation of Evidence Claims

October 30, 2018 — David Adelstein - Florida Construction Legal Updates
In an earlier posting, I talked about spoliation of evidence. This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence. This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Dynamics of Managing Professional Liability Claims for Design Builders

February 21, 2022 — Eric M. Clarkson - Saxe Doernberger & Vita, P.C.
Nearly half of America’s construction projects are now design-build in a continuing shift. As a result, contractors are taking on more professional liability (“PL”) risk than ever before, and the risk management landscape is changing. There are unique challenges to managing PL risks and claims. Specifically, PL coverage requires proactive claim management and project coordination. As a result, design-build projects should involve significant collaboration amongst all of the parties involved in the project. Claims Made Coverage Considerations PL policies typically provide three types of coverage:

Professional Liability covers defense and indemnity against claims arising out of acts or omissions of the insured in rendering a defined set of professional services –including construction management, project management, and design work in the design build context.

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Reprinted courtesy of Eric M. Clarkson, Saxe Doernberger & Vita, P.C.
Mr. Clarkson may be contacted at EClarkson@sdvlaw.com

Two Years, Too Late: Time-Barred Hurricane Loss is Timely Reminder to Insureds

November 01, 2021 — Michael S. Levine & Yaniel Abreu - Hunton Insurance Recovery Blog
It happens every year. A clearly covered loss occurs and for one reason or another, the policyholder delays in notifying its insurer of the loss. Usually, the cause for the delay is innocent. It may even appear to be justified, such as where the insured prioritizes steps to save its property, inventory or assist dependent customers. But no matter the reason, insurers can be hard-lined in their refusal to accept an untimely claim. This is especially true in states that presume prejudice to the insurer, or where the insurer need not show prejudice at all. In LMP Holdings, Inc. v. Scottsdale Ins. Co., (Case No. 20-24099-CIV) (S.D. Fla.), a twenty‑seven month delay in notifying the insurer of damage from Hurricane Irma proved fatal to the claim. LMP owns a building in Miami, Florida insured under an all-risk commercial property policy issued by Scottsdale. On September 10, 2017, Hurricane Irma struck South Florida and caused extensive damage to LMP’s building, including punctures to the roof and water damage. LMP identified the damage shortly after the storm. Then, in 2018, LMP identified other storm-caused damage, including a water stain on the ceiling. It again identified additional storm damage in 2019. LMP submitted a claim to its insurer on December 10, 2019—about twenty-seven months after it first noticed the damage. Scottsdale agreed to inspect the property but reserved its rights to deny coverage based on late notice. On July 10, 2020, Scottsdale denied coverage for the damage to the property. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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Reprinted courtesy of

The Burden of Betterment

February 23, 2017 — Ryan M. Charlson, Esq. - Florida Construction Law News
The concept of betterment has long been used by defendants in cases involving defective design or construction to limit the damages awarded to a plaintiff.[1] The theory behind betterment is that: “if in [the] course of making repairs [an] owner adopts a more expensive design, recovery should be limited to what would have been the reasonable cost of repair according to original design.”[2] Betterment is often raised as an affirmative defense, requiring a defendant to prove that the plaintiff has received a good or service that is superior to that for which the plaintiff originally contracted. A recent South Florida case seems, at first blush, to suggest the burden of establishing the value of betterments may fall to the plaintiff, although a closer reading indicates the decision is likely to have limited applicability. In Magnum Construction Management Corp. v. The City of Miami Beach, the Third District Court of Appeal was asked to review the damages award to the City for construction defects associated with the redesign and improvement of a park.[3] The completed project contained landscaping deficiencies, along with other “minor defects” in the playground’s construction.[4] After a unilateral audit, and without providing the contractor its contractually required opportunity to cure the defects, the City “removed, redesigned, and replaced the playground in its entirety.”[5] It did so despite no recommendation by the City’s own expert to perform such work.[6] During the bench trial, the “only measure of damages provided by the City was the costs associated with the planning, permitting, and construction of a park that is fundamentally different from the one it contracted with [the contractor] to build.”[7] Read the court decision
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Reprinted courtesy of Ryan M. Charlson, Cole, Scott & Kissane, P.A.
Mr. Charlson may be contacted at ryan.charlson@csklegal.com

No Coverage Under Anti-Concurrent Causation Clause

October 02, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The policy's anti-concurrent causation clause blocked coverage for damage to the home caused by wind and flood. Clarke v. Travco Ins. Co., 2015 U.S. Dist. LEXIS 104267 (S.D.N.Y. Aug. 7, 2015). The insured's home was located about twenty feet from the Hudson River. Hurricane Sandy caused the river to rise, creating damage to the insured's home. The insured did not have flood insurance. During the storm, water flooded the lower level of the house to a level of about four feet. Further, a wooden dock from another property, approximately fifteen feet by ten feet, entered the property and came to rest within the lower level. The insured submitted a claim under his homeowner's policy to Travco Insurance Company. An investigator concluded that the cause of damage to the home was flood/water. The claim was denied. 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

Following Mishaps, D.C. Metro Presses on With Repairs

February 23, 2017 — Jim Parsons - Engineering News-Record
An aggressive effort to overhaul the aging Metro system in Washington, D.C., is producing results as it nears the one-year mark, with more than 28,000 cross-ties and nearly two miles of grout pads now replaced. Read the court decision
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Reprinted courtesy of Jim Parsons, ENR
ENR may be contacted at ENR.com@bnpmedia.com

With Wildfires at a Peak, “Firetech” Is Joining Smart City Lineups

October 21, 2024 — James P. Bobotek - Gravel2Gavel Construction & Real Estate Law Blog
The threat of extreme wildfires has doubled in the past 20 years, with almost 20,000 fires blazing across the United States in 2024 alone. These high-intensity fires can be deadly, expensive, and create lingering health and environmental consequences. While we are used to seeing firefighters on the frontlines, researchers hope that next-generation smart technology, augmented by artificial intelligence (AI), will also play a key role in battling these conflagrations. Many municipalities, particularly those near wildfire-prone forests, are beginning to incorporate fire-focused advances (or “firetech”) into their smart city ecosystems. “Smart cities” are urban centers enhanced by utilities, emergency services, traffic signals and more that are linked through information and communications technology. Though the concept can spark cybersecurity-related concerns, many locales are gradually implementing many different kinds of smart tech. Following the 2023 wildfire that devastated Maui, for example, Hawaii installed a network of cloud-based fire and wind sensors that use AI to detect wildfires in real time. Smart tools like these can aid in predicting and discovering fires, streamlining emergency alert protocols, calculating vital analytics and improving firefighter safety. The National Fire Protection Association (NFPA) is actively studying these innovations, particularly in terms of environmental (smart buildings or robotics), operational (communications) and personnel (PPE sensors or biometrics). Below are a few of the key technologies to watch in this emerging field:

Smart Sensors. A total of 80 sensors (64 wildfire sensors and 16 wind sensors) were placed throughout Hawaii starting in March of 2024. Attached to existing utility poles, they detect heat in the air, and then engage AI and smart learning to distinguish smoke particles and gases produced by fires from those commonly found in Hawaii’s atmosphere—such as volcanic ash and ocean salt. Positioned in “strings,” the sensors “talk” to each other and send text messages to officials when they find a problem.

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Reprinted courtesy of James P. Bobotek, Pillsbury
Mr. Bobotek may be contacted at james.bobotek@pillsburylaw.com

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