SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Connecticut Supreme Court to Review Several Issues in Asbestos Coverage Case

November 08, 2017 — Ciaran Way & Robert F. Walsh – White and Williams LLP
On October 18, 2017, in R.T. Vanderbilt Company v. Hartford Accident & Indemnity Company, the Connecticut Supreme Court certified four issues for appeal, which relate to trigger, allocation, pollution exclusions, and the occupational disease exclusion in the context of asbestos bodily injury claims. This post identifies the issues the Connecticut Supreme Court will decide on appeal and sets forth the Appellate Court’s ruling on each issue. Issue 1: Whether a “continuous trigger” theory of coverage applies to asbestos-related disease claims and whether expert medical testimony on the timing of injury should be precluded The Appellate Court applied a continuous trigger, and found that the trial court properly excluded testimony from medical experts the insurers had proffered to prove that the asbestos disease process did not support a continuous trigger. Reprinted courtesy of Ciaran Way, White and Williams LLP and Robert Walsh, White and Williams LLP Ms. Way may be contacted at wayc@whiteandwilliams.com Mr. Walsh may be contacted at walshr@whiteandwilliams.com Read the court decision
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Exclusion for Construction of Condominiums Includes Faulty Construction of Retaining Wall

August 04, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The exclusion for suits arising out of construction of condominiums encompassed the underlying claim for faulty construction of a retaining wall. HT Serv., LLC v. Western Heritage Ins. Co., 2021 U.S. App. LEXIS 16259 (10th Cir. June 1, 2021). HT Services was a land developer. HT Services designed and constructed a residential community. The AOAO sued HT Services for negligent design and construction of a retaining wall. When its carrier, Western Heritage Insurance Company, denied coverage, HT Services sued. The district court granted summary judgment to Western. The exclusion eliminated coverage for claims or suits "arising out of, relating to or in any way connected with 'your operations' . . . involving the development [or] construction . . . of . . . condominiums . . . or . . . residential structures." HT Services argued that a retaining wall was not a "residential structure." 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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White House Hopefuls Make Pitches to Construction Unions

May 20, 2019 — Bruce Buckley - Engineering News-Record
As the 2020 presidential election draws nearer, many Democratic hopefuls are beginning to seek construction unions’ support. Eight declared candidates made their pitches to members of the North America’s Building Trades Unions at the group’s legislative conference April 9-10 in Washington, D.C. Several promised a major infrastructure package of $1 trillion or more, which aligns with the trades’ legislative agenda. But many seeking endorsement will wrestle with balancing calls for a green economy and unions’ demand for traditional oil and gas sector jobs. Read the court decision
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Reprinted courtesy of Bruce Buckley, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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The Year 2010 In Review: Design And Construction Defects Litigation

February 25, 2011 — Candace Matson, Harold Hamersmith, and Helen Lauderdale

This article is the first in a series summarizing construction law developments for 2010



1. Centex Homes v. Financial Pacific Life Insurance Co., 2010 U.S. Dist. LEXIS 1995 (E.D. Cal. 2010)



After settling numerous homeowners’ construction defect claims — and more than ten years after the homes were substantially completed — a home developer brought suit against one of the concrete fabrication subcontractors for the development seeking indemnity for amounts paid to the homeowners, as well as for damages for breach of the subcontractor’s duties to procure specific insurance and to defend the developer against the homeowners’ claims. The subcontractor brought a motion for summary adjudication on the ground the developer’s claims were barred by the ten year statute of repose contained in Code of Civil Procedure Section 337.15.

The District Court agreed the developer’s claim for indemnity was barred by Section 337.15. And it held that because the damages recoverable for breach of the subcontractor’s duty to purchase insurance are identical to the damages recoverable through the developer’s indemnity claim, the breach of duty to procure insurance claim also was time-barred. The District Court, however, allowed the claim for breach of the duty to defend to proceed. The categories of losses associated with such a claim (attorneys’ fees and other defense costs) are distinct from the damages recoverable through claims governed by Section 337.15 (latent deficiency in the design and construction of the homes and injury to property arising out of the latent deficiencies).

 

2. UDC — Universal Development v. CH2M Hill, 181 Cal. App. 4th 10 (6th Dist. Jan. 2010)



Indemnification clauses in construction agreements often state that one party to the agreement — the “indemnitor” — will defend and indemnify the other party from particular types of claims. Of course, having a contract right to a defense is not the same as actually receiving a defense. Any indemnitor attempting to avoid paying for defense costs can simply deny the tender of defense with the hope that when the underlying claim is resolved the defense obligations will be forgotten. In the past, when parties entitled to a defense — the “indemnitees” — had long memories and pressed to recover defense costs, indemnitors attempted to justify denying the tender by claiming their defense obligations coincided with their indemnity obligations and neither arose until a final determination was made that the underlying claim was one for which indemnity was owed.



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Reprinted courtesy of Candace Matson, Harold Hamersmith, and Helen Lauderdale, Sheppard Mullin Richter & Hampton LLP. Ms. Matson can be contacted at cmatson@sheppardmullin.com, Mr. Hamersmith can be contacted at hhamersmith@sheppardmullin.com, and Ms. Lauderdale can be contacted at hlauderdale@sheppardmullin.com.

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Insurance Policy’s “No Voluntary Payment” Clauses Lose Some Bite in Colorado

October 22, 2013 — Brady Iandiorio — Higgins, Hopkins, McLain & Roswell, LLC.
The Colorado Court of Appeals recently handed down an opinion dulling the teeth of the “no voluntary payment” clauses found in many contractors’ insurance policies. In the case of Stresscon Corporation v. Travelers Property Casualty Company of America, 2013 WL 4874352 (Colo. App. 2013), the Court of Appeals found that an insured’s breach of the “no voluntary payment” clause does not always bar the insured from receiving benefits from its insurance company. In July 2007, at a construction project run by Mortenson (the “GC”), a partially erected building collapsed, killing one worker and gravely injuring another. The collapse was caused by a crane hook pulling a concrete component off of its supports. The GC contracted with Stresscon Corporation (“Stresscon”) to build pre-cast concrete components for the project, and in turn Stresscon hired two sub-subcontractors, RMS and Hardrock (the “Crane Team”) to work together to erect those concrete components. Stresscon and the Crane Team had liability insurance, and Stresscon was insured by Travelers Property Casualty Company of America (“Travelers”). The accident led to three separate lawsuits: 1) one brought by the deceased worker; 2) one brought by the injured worker; and 3) one brought by the GC against Stresscon claiming it was entitled to contract damages incurred because the project was delayed. Read the court decision
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Reprinted courtesy of Brady Iandiorio
Brady Iandiorio can be contacted at Iandiorio@hhmrlaw.com

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BofA Said to Near Mortgage Deal for Up to $17 Billion

August 06, 2014 — Tom Schoenberg – Bloomberg
Bank of America Corp. is nearing a $16 billion to $17 billion settlement with the U.S. Justice Department to resolve probes into sales of mortgage-backed bonds in the run-up to the financial crisis, a person familiar with the matter said. Under the proposed terms, the bank would pay about $9 billion in cash and the rest in consumer relief to settle federal and state claims, according to the person, who asked not to be named because the negotiations are private. Details of the proposed accord, such as the relief and a statement of facts, are still being negotiated, the person said. The outlines of the deal were reached last week after a phone call between Attorney General Eric Holder and Bank of America Chief Executive Officer Brian T. Moynihan, the person said. During the July 30 call, Holder said that the government was ready to file a lawsuit in New Jersey if the bank didn’t offer an amount closer to the department’s demand of about $17 billion, according to the person. Read the court decision
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Reprinted courtesy of Tom Schoenberg, Bloomberg
Mr. Schoenberg may be contacted at tschoenberg@bloomberg.net

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City Sues over Leaking Sewer System

October 25, 2013 — CDJ STAFF
The city of Storm Lake, Iowa completed a $3.6 million sewer project only year ago, but the system is leaking untreated water into residents properties. The Pilot-Tribune reports that “not all the sewage lines broke,” but the city still needed to check the entire system for damage. The Southwest Shoreline Sanitary District has filed a lawsuit against Lessard Contracting, the firm that built the system. Bob Bergendoff, one of the sanitary district trustees said that “the main thing right now is whether the lines are properly installed.” Steve Anderson, another trustee, said that discussions with Lessard are getting “next to nowhere.” Read the court decision
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Thoughts on New Pay if Paid Legislation

March 28, 2022 — Christopher G. Hill - Construction Law Musings
Recently, the Virginia General Assembly closed its session having passed legislation essentially banning “pay if paid” clauses in construction contracts, both public and private. Assuming that Governor Youngkin signs the bill into law on or before his deadline of April 11, 2022, the following new requirement will be grafted into any Virginia construction contract:

Such contract shall require such higher-tier contractor to pay such lower-tier subcontractor within the earlier of (i) 45 days of the satisfactory completion of the portion of the work for which the subcontractor has invoiced or (ii) seven days after receipt of amounts paid by the owner to the general contractor or by the higher-tier contractor to the lower-tier contractor for work performed by a subcontractor pursuant to the terms of the contract.

This is the main operative language (the 45-day payment requirement is also applied to project owners), but the legislation also imposes certain other notice duties upon both the owner and any higher-tier contractor on a construction project. Interestingly, the legislation does not include a provision making it only effective for those contracts entered into after its effective date. More on that later. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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