Seattle Washington Building Expert Directory

Supreme Judicial Court of Maine Addresses Earth Movement Exclusion

March 01, 2021 — James M. Eastham - Traub Lieberman
In Bibeau v. Concord Gen. Mut. Ins. Co., 2021 WL 243867, 2021 ME 4, the Supreme Judicial Court of Maine addressed an earth movement exclusion contained in a residential homeowners policy. In 2017, the insured submitted a claim to Concord for damage to the insured’s home which included foundation cracks and settlement resulting in interior damage to the home. The insured contended that the damage was the result of a 2006 water line leak. Concord denied the claim based on the Earth Movement exclusion contained in it’s policy which precluded coverage for losses caused by earthquakes, landslides, mudslides, mudflow, subsidence, sinkholes or “[a]ny other earth movement including earth sinking, rising or shifting; caused by or resulting from human or animal forces or any act of nature”. The insured filed suit asserting a breach of the policy and unfair claims settlement practices. According to the insured’s expert, the damage was caused by a 2006 water line leak -- which in turn caused the foundation to settle. Concord's expert, however, concluded that the settling was caused by the house being built on “unprepared or uncontrolled fill” which allowed the house to settle at different rates. Despite the disagreement regarding the cause of the settling, the parties ultimately agreed that the damage was the result of earth moving under the house's foundation. Concord moved for summary judgment and the trial court entered summary judgment for Concord, reasoning that because there was no genuine dispute that the losses were caused by “subsurface soils being undermined and earth movement,” the Earth Movement exclusion precluded coverage. The trial court further concluded that the disagreement over the cause of the settlement was not material because regardless of the cause of the earth movement, the losses were clearly excluded by the policy's Earth Movement exclusion. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

MGM Seeks to Demolish Harmon Towers

September 01, 2011 — CDJ STAFF

Citing public safety concerns and the cost of repair, MGM Resorts International is seeking to demolish the unfinished hotel tower. The company has a few hurdles to go through before they start laying the charges to implode the structure. Any plans would have to be approved by not only Clark County officials, but also the district court has an order blocking any activity during litigation between MGM and the general contractor on the project, Perini Building Company.

Architectural Record reports that MGM states it would take “approximately 18 months to conduct test and come up with an approved, permitted design to fix the Harmon.” MGM feels that repairs would then take another two to three years. Perini contends that they could “provide stamped drawings detailing all necessary repairs within three months.” They attribute MGM’s desire to demolish the building as “buyer’s remorse.”

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The Heat Is On

June 13, 2022 — Christopher Durso - Construction Executive
Every year, NASA and the National Oceanic and Atmospheric Administration (NOAA) team up to assess global temperatures and climate trends. (Yes, that NASA. A big part of the space agency’s mission is focused on Earth science, with the goal of better understanding the planet’s interconnected systems.) The two groups released their findings for 2021 this past January, with several predictably alarming highlights:

2021 was the sixth-warmest year on record, with the average global surface temperature about 1.5°F over the 20th-century baseline periods that the agencies use for comparison and nearly 2°F higher than in the late-19th century.
The surface temperature in the Northern Hemisphere was also the sixth-highest on record, at nearly 2°F over baseline, with the land temperature exceeding the baseline by 2.8°F.
Extreme climate events included an above-average Atlantic hurricane season, with 21 storms, and a severe heat wave in the northwestern United States and western Canada in June during which Canada recorded its highest temperature ever, at 121°F.

Reprinted courtesy of Christopher Durso, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Partners Jeremy S. Macklin and Mark F. Wolfe Secure Seventh Circuit Win for Insurer Client in Late Notice Dispute

November 12, 2019 — Jeremy S. Macklin & Mark F. Wolfe - Traub Lieberman Perspectives
In a written decision dated August 12, 2019, authored by Chief Judge Diane P. Wood, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of Traub Lieberman’s insurer client, affirming the District Court’s grant of summary judgment in the insurer’s favor. Partners, Jeremy S. Macklin and Mark F. Wolfe, represented the insurer client in the District Court and before the Seventh Circuit. Macklin argued the case before the Seventh Circuit on behalf of the insurer on May 28, 2019. The insurer client issued an excess liability policy to Deerfield Construction, a telecommunications construction company, which incorporated the notice requirements of the primary liability insurance policy issued by American States Insurance Company. The insured’s employee was involved in an automobile accident in 2008, during the effective dates of the excess liability policy. A lawsuit arising from the accident was filed and served in 2009. While Deerfield Construction, through its retained insurance intermediary, provided immediate notice of the accident and lawsuit to the primary liability insurer, the insurer client did not receive notice of either the accident or the lawsuit from any source until December 2014, approximately six weeks before trial. Following a $2.3 million judgment, the insurer client filed a complaint for declaratory judgment seeking a finding that Deerfield Construction materially breached the excess liability policy by not providing reasonable notice of the accident or the lawsuit, as required by the policy. The District Court found that the notice given to the insurer client was unreasonable as a matter of law. The District Court rejected Deerfield Construction’s argument that an insurance broker involved in the purchase of the excess liability policy, Arthur J. Gallagher, was the insurer client’s apparent agent for purposes of accepting notice. The District Court also rejected Deerfield Construction’s argument that the insurer client’s acts of requesting discovery, reviewing trial reports, and participating in settlement discussions raised equitable estoppel concerns. Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman and Mark F. Wolfe, Traub Lieberman Mr. Macklin may be contacted at jmacklin@tlsslaw.com Mr. Wolfe may be contacted at mwolfe@tlsslaw.com Read the court decision
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Toolbox Talk Series Recap – Considerations for Optimizing Dispute Resolution Clauses

June 05, 2023 — Michael Filbin - The Dispute Resolver
In the April 27, 2023 edition of Division 1's Toolbox Talk Series moderated by Manuel del Valle, Sergio Andre Laclau (Partner at Mello Torres) and Liza Akins (Senior Assistant GC and Division Counsel at ARCO Design/Build) offered the following strategies for drafting effective ADR clauses in construction contracts:

Define the ADR process for various types of disputes.

Not all disputes on a construction project are the same, and the parties can tailor the ADR process to different situations. For example, the parties could choose to arbitrate complex disputes and resolve minor claims through mediation. Differentiating the ADR process between complex and minor disputes can save parties time and money. While Liza prefers arbitration for complex claims because you can get a quick and final decision from an arbitrator experienced with construction disputes, she noted that arbitration costs can add up quickly. Therefore, if the dollar amount in dispute is relatively small, arbitration may not make sense financially. Mediation tends to be a comparatively cheaper and faster option. Read the court decision
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Reprinted courtesy of Michael Filbin, Cozen O'Connor
Mr. Filbin may be contacted at mfilbin@cozen.com

No Duty to Defend Additional Insured for Construction Defects

November 23, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Eleventh Circuit found there was no duty to defend the contractor additional insured for the costs of repairing and replacing roofing installed incorrectly by the subcontractor insured. Core Constr. Servs. Southeast v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 17575 (11th Cir. Sept 28, 2016). After the condominium project was completed, Hurricane Wilma damaged several roofs in the development. The association and its insurer, Empire Indemnity Insurance Company, discovered that the roof had been installed incorrectly by Patnode Roofing, Inc. Empire paid for the damages and the association assigned its claims against Core Construction and its subcontractors, including Patnode, to Empire. Empire then sued Core Construction, Patnode and other subcontractors. 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

Final Furnishing Date is a Question of Fact

November 10, 2016 — David Adelstein – Florida Construction Legal Updates
Construction liens need to be recorded within 90 days from the lienor’s final furnishing date on the project. This date is exclusive of punchlist or warranty work. The final furnishing date needs to be proven at trial to establish that the construction lien was timely recorded. If there is an evidentiary dispute as the final furnishing date (the contractor claims the date was “x” to establish the lien was timely and the owner claims the date was “y” to establish the lien was untimely), then the date is a question of fact to be determined by the jury. For instance, in Best Drywall Services, Inc. v. Blasczyk, 2016 WL 6246701 (Fla. 2d DCA 2016), a contractor and owner entered into an oral agreement for a residential renovation project. The contractor recorded a construction lien after its final two invoices went unpaid. During trial, the contractor offered conflicting evidence as to when its final furnishing date on the project was. Numerous dates were offered in the record including dates that were more than 90 days prior to the date the contractor recorded its lien, meaning the lien was arguably untimely. As a result, the trial judge entered a directed verdict in favor of the owner and against the contractor on the contractor’s lien claim finding the lien was untimely recorded. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

Ohio subcontractor work exception to the “your work” exclusion

August 11, 2011 — CDCoverage.com

InÂ Mosser Construction, Inc. v. Travelers Indem. Co., No. 09-4449 (6thÂ Cir. July 14, 2011)(unpublished), claimant project owner Port Clinton contracted with insured general contractor Mosser for the construction of a building.Â Following completion, Port Clinton sued Mosser for breach of contract seeking damages because of physical injury to the project occurring after completion resulting from defective backfill material that settled improperly.

Mosser’s CGL insurer Travelers denied a defense and Mosser filed suit against Travelers seeking a declaratory judgment. Mosser and Travelers filed cross-motions for summary judgment on the issue of whether the supplier of the backfill material?Gerken?qualified as a subcontractor for purposes of the subcontractor work exception to the “your work” exclusion—exclusion l.—for property damage to or arising out of Mosser’s completed work.Â Â Mosser had purchased the backfill material from Gerken pursuant to a purchase order specifying that Gerken was to supply Mosser with an industry standard grade of backfill for use in the Port Clinton project.