SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

OSHA ETS Heads to Sixth Circuit

December 13, 2021 — George Morrison - White and Williams LLP
On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow. Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:

• The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
• The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
• The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

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Reprinted courtesy of George Morrison, White and Williams LLP
Mr. Morrison may be contacted at morrisong@whiteandwilliams.com

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North Carolina Court Rules In Favor Of All Sums

July 13, 2020 — Lorelie S. Masters & Patrick M. McDermott - Hunton Andrews Kurth
A North Carolina court recently ruled in favor of all sums allocation. Duke Energy Carolinas, LLC v. AG Insurance SA/NV, No. 17 CVS 5594 (N.C. Sup. Ct.). In that case, Duke Energy is seeking coverage for “liabilities linked to coal combustion residuals (‘CCRs’), i.e., coal ash, at fifteen Duke-owned power plants in North and South Carolina.” In a recent summary judgment decision, the court resolved a dispute between Duke and TIG Insurance Company, as successor to Ranger Insurance Company, about whether all sums allocation or pro rata allocation applied. The court found that “the non-cumulation provisions make plain” that all sums allocation applied. It also noted that “a large majority of the courts in other jurisdictions that have considered this issue have recognized that non-cumulation provisions such as those here compel all sums rather than pro rata allocation.” The decisions to the contrary, according to the court, had ruled “done so on public policy grounds” and not based on “the application of the rules of contract interpretation.” Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Patrick M. McDermott, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. McDermott may be contacted at pmcdermott@HuntonAK.com Read the court decision
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How Will Today’s Pandemic Impact Tomorrow’s Construction Contracts?

October 26, 2020 — Levi W. Barrett, Nathan A. Cohen & Mark A. Snyder - Peckar & Abramson
The emergence of COVID-19 has created a new set of challenges in the already complex world of negotiating construction contracts. In the pre-COVID-19 era, general contractors, construction managers and those negotiating on their behalf, needed to balance a variety of fairly well-established legal risks and exposures and commercial realities with the need to maintain a positive relationship with their counterparty. While many are rightfully concerned with addressing the impacts of COVID-19 to their on-going projects, those negotiating new contracts now are undoubtedly cognizant that they are negotiating in the midst of an unpredictable future that is tipping the historical negotiating balance. The following presents some crucial areas to focus on when negotiating and drafting your contracts in this new era. Contract Terms Through the COVID-19 Lens Contractors should examine proposed new contracts carefully to identify rights that afford COVID-19 protections and identify contractual obligations that create COVID-19 commercial risks. Specific attention should be paid to those sections relating to force majeure/excusable delay, emergencies, changes (including changes in law), contingency, suspension and termination, site investigation as well as all representations and warranties. The paramount concern in examining these provisions is to ensure that they not only entitle the contractor to relief for those unknown events, emergencies and changes, but that they also contain sufficient entitlement for the contractor to obtain both time extensions and financial compensation for unknown impacts of a known event – the COVID-19 pandemic. Reprinted courtesy of Levi W. Barrett, Peckar & Abramson, P.C., Nathan A. Cohen, Peckar & Abramson, P.C.and Mark A. Snyder, Peckar & Abramson, P.C. Mr. Barrett may be contacted at lbarrett@pecklaw.com Mr. Cohen may be contacted at ncohen@pecklaw.com Mr. Snyder may be contacted at msnyder@pecklaw.com Read the court decision
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Lack of Flood Insurance for New York’s Poorest Residents

September 10, 2014 — Beverley BevenFlorez-CDJ STAFF
Property Casualty 360 reported that for residents of the flood-prone area of Queens, New York, even “the slightest downpour could mean evacuating their homes for a night or even weeks at a time.” The problem is that “[m]uch of Southeast Queens, an area that includes the neighborhoods of Jamaica, St. Albans and Hollis, and parts of the Rockaways, sits on a massive aquifer that swells with groundwater and spills over into streets and eventually into basements and homes after heavy rains.” However, according to Property Casualty 360, Southeast Queens residents “have been battling insurance agencies for over a decade.” “I would say more than 90% of the homeowners I speak to out here, they’re looking for insurance and they’re not getting it,” Councilman Donovan Richards, who represents Roseland and Far Rockaway, told Property Casualty 360. “Insurance companies obviously don’t want to take the risk.” Read the court decision
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Cross-Motions for Partial Judgment on the Pleadings for COVID-19 Claim Denied

May 24, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The court denied both parties' motions for partial judgment on the pleadings seeking clarification of the policy's contamination exclusion. Thor Equities, LLC v. Factory Mut. Ins. Co., 2021 U.S. Dist. LEXIS 62967 (S.D. N.Y. March 31, 2021). Thor was a commercial landlord, renting properties across the country to hundreds of tenants, for use in a variety of businesses, including office space, retail stores, restaurants, and bars. When state governments began shutting down businesses and issuing stay-at-home orders in March 2020, many of Thor's tenants had to close shop and sought abatements or other accommodations. Thor alleged it suffered significant business interruption as a result of the pandemic. 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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Vermont Supreme Court Finds COVID-19 May Damage Property

November 07, 2022 — Michael S. Levine & Lorelie S. Masters - Hunton Insurance Recovery Blog
As reported on this blog, policyholders have long been of the view that the presence of substances like COVID-19 and its causative virus SARS-CoV-2, which render property dangerous or unfit for normal business operations, should be sufficient to trigger coverage under commercial all-risk insurance, as has been the case for more than 60 years. However, many courts, federal courts in particular, despite decades of pro-policyholder precedent, have embraced the view that “viruses harm people, not [property].” Thirty-one months after the start of the pandemic, the first state high court has gone in a different direction, according greater weight to pro-policyholder precedent. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Lorelie S. Masters, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Masters may be contacted at lmasters@HuntonAK.com Read the court decision
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Obama Says Keystone Decision May Be Announced in Weeks or Months

March 05, 2015 — Justin Sink – Bloomberg
(Bloomberg) -- President Barack Obama said a decision on whether to approve the Keystone XL pipeline is possible in weeks or months. The president told Reuters in an interview Monday that the decision definitely “will happen before the end of my administration.” Asked to be specific, he said, “Weeks or months.” Read the court decision
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Reprinted courtesy of Justin Sink, Bloomberg
Mr. Sink may be contacted at jsink1@bloomberg.net

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Traub Lieberman Partners Ryan Jones and Scot Samis Obtain Affirmation of Final Summary Judgment

February 28, 2022 — C. Ryan Jones & Scot E. Samis - Traub Lieberman
Traub Lieberman Partners Ryan Jones and Scot Samis recently obtained affirmation of final summary judgment in favor of a windstorm and general insurance provider (“Insurer”) in the Florida First District Court of Appeal. The Appellant, a restoration service provider (“Restoration Service”), provided emergency mitigation services in the wake of hurricane damage to a residential home that was covered by an insurance policy issued by the Insurer. The Restoration Service invoiced the Insurer and, following an investigation, the Insurer paid a portion of the invoiced amount and invoked the policy’s appraisal clause to resolve the dispute over the difference. The Restoration Service brought suit against the Insurer, arguing that the appraisal process did not apply to mitigation services. The Insurer countered that it was entitled to resolve the claim by appraisal and, following arguments, the Court determined that the appraisal provision applied to mitigation services. Reprinted courtesy of C. Ryan Jones, Traub Lieberman and Scot E. Samis, Traub Lieberman Mr. Jones may be contacted at rjones@tlsslaw.com Mr. Samis may be contacted at ssamis@tlsslaw.com Read the court decision
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