SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause

May 15, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court upheld the insurer's denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023). Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage. 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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Ornate Las Vegas Palace Rented by Michael Jackson for Sale

August 13, 2014 — Emily Heffter – Bloomberg
A unique and ornate palace for sale in Las Vegas was home to Michael Jackson in the strange and isolated years before his death. In fact, the King of Pop was the last tenant in the 24,000-square-foot estate, and his portrait still hangs above the fireplace. Jackson eschewed the main house and lived in the guest villa while he was rehearsing for his Las Vegas show, The One, from 2007-2009, according to listing agent Eddy Martinez of Miami Beach-based Worldwide Properties. To avoid the paparazzi, Jackson traveled through a tunnel under the main house and got directly into a car parked at the end of it, Martinez said. The Hacienda Palomino has only had two owners since theater developer Horst Schmidt built it in 1952. The home at 2710 Palomino Ln is "enchanting," said Martinez, and the property's unique features — including a musical note insignia used as an architectural feature — intrigued the late superstar. Read the court decision
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Reprinted courtesy of Emily Heffter, Bloomberg

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Attorneys' Fees Awarded as Part of "Damages Because of Property Damage"

October 07, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court for the district of Hawaii found that an arbitrator's award of attorneys' fees was part of the "damages because of property damage" and covered under a CGL policy. Ass'n of Apt. Owners of the Moorings v. Dongbu Ins. Co., 2016 U.S. Dist. LEXIS 110283 (Aug. 18, 2016 D. Haw). The Moorings AOAO was the named insured under the policy issued by Dongbu. Jo-Anne and Brent Braden, owners of a residential unit at the Moorings, filed a demand for arbitration against the AOAO. The Bradens alleged that the AOAO had failed to repair and maintain their lanai roof, which caused water damage to their unit. The arbitrator awarded the Bradens $6,103.49 in special damages, which was the amount they paid to repair their roof and interior damage. The arbitrator also awarded $85,644.30 in attorneys' fees and $8,515.91 in costs to the Bradens. 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

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Pennsylvania Superior Court Fires up a Case-By-Case Analysis for Landlord-Tenant, Implied Co-Insured Questions

February 03, 2020 — Gus Sara - The Subrogation Strategist
In Joella v. Cole, 2019 PA Super. 313, the Superior Court of Pennsylvania recently considered whether a tenant, alleged by the landlord’s property insurance carrier to have carelessly caused a fire, was an implied co-insured on the landlord’s policy. The court found that the tenant was an implied co-insured because the lease stated that the landlord would procure insurance for the building, which created a reasonable expectation that the tenant would be a co-insured under the policy. Since the tenant was an implied co-insured on the policy, the insurance carrier could not maintain a subrogation action against the tenant. This case confirms that Pennsylvania follows a case-by-case approach when determining whether a tenant was an implied co-insured on a landlord’s insurance policy. The Joella case stems from a fire at an apartment building in Northampton County, Pennsylvania. The landlord’s property insurance carrier paid the landlord $180,000 to repair the damages resulting from the fire. In March 2018, the insurer brought a subrogation action against Annie Cole, a tenant in the building, alleging that Ms. Cole’s negligent use of an extension cord caused the fire. Ms. Cole raised the affirmative defense that she was an implied co-insured on the landlord’s insurance policy. The subrogating insurer filed a partial motion for summary judgment seeking to dismiss Ms. Cole’s defense. In response, Ms. Cole filed a cross motion for partial judgment, arguing that because the lease specified that the landlord would maintain fire insurance for the building, there was a reasonable expectation that she would be a co-insured on that policy. The trial court found in favor of Ms. Cole, holding that the landlord’s insurer could not maintain a subrogation action against her because she was an implied co-insured of the landlord’s insurance policy under the terms of the lease. The landlord’s insurer filed an appeal with the Superior Court of Pennsylvania. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Sales Pickup Shows Healing U.S. Real Estate Market

June 26, 2014 — Shobhana Chandra – Bloomberg
Americans snapped up previously owned homes in May in the biggest monthly sales gain in almost three years, a sign the residential real estate market is regaining its footing after a stumble early in the year. Purchases climbed 4.9 percent, the biggest increase since August 2011, to a 4.89 million annualized rate, figures from the National Association of Realtors showed today in Washington. The level was the strongest since October. The report also showed price appreciation is slowing as more homes become available. A more balanced market, including a wider selection of properties, smaller price gains and still-low borrowing costs, may encourage more Americans to buy as employment strengthens. Improving demand will probably spur a pickup in construction, and builders such as Hovnanian Enterprises Inc. (HOV) are optimistic. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg
Ms. Chandra may be contacted at schandra1@bloomberg.net

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You Are Your Brother’s Keeper. Direct Contractors in California Now Responsible for Wage Obligations of Subcontractors

January 31, 2018 — Garret Murai – California Construction Law Blog
If there’s one law from the 2017 Legislative Session that’s garnered a lot of attention in the construction press, it’s AB 1701. Under AB 1701, beginning January 1, 2018, for contracts entered into on or after January 1, 2018, direct contractors may be found liable for unpaid wages, fringe or other benefit payments or contributions, including interest, but excluding penalties or liquidated damages, owed by a subcontractor of any tier to their workers. Here’s what you need to know about AB 1701. What code section did AB 1701 amend? AB 1701 added a a new section 218.7 to the Labor Code. To whom does AB 1701 apply? AB 1701 applies to direct contractors only. A direct contractor is defined as a “contractor that has a direct contractual relationship with an owner.” On what types of projects does AB 1701 apply? AB 1701 applies to private works projects only. When does AB 1701 take effect? AB 1701 took effect on January 1, 2018 and applies to all contracts entered into on or after January 1, 2018. Read the court decision
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Reprinted courtesy of Garret, Murai, Wendel, Rosen, Black, Dean, LLP
Mr. Murai may be contacted at gmurai@wendel.com

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A “Supplier to a Supplier” on a California Construction Project Sometimes Does Have a Right to a Mechanics Lien, Stop Payment Notice or Payment Bond Claim

October 01, 2014 — William L. Porter - The Porter Law Group
For purposes of seeking payment on a construction related project in the California construction industry, the proper legal classification of the party seeking payment is of key importance. Whether one in contract with a prime contractor is a subcontractor or a material supplier determines the availability for mechanics’ liens, stop payment notices and payment bond claims. Generally, those in contract with subcontractors have the ability to assert mechanics liens, stop payment notices and payment bond claims against the owner, general contractor and/or sureties. On the other hand, those who supply materials to material suppliers are generally not entitled to assert a mechanics lien, stop payment notice or payment bond claim. The “rule” has generally been stated as: “A supplier to a supplier has no lien rights.” However, this rule is not always true. The proper classification of an entity as either a subcontractor or a material supplier can be difficult. Simply because a prime contractor hires a licensed contractor to furnish labor, materials, equipment or services on a project does not mean that the party hired is actually a “subcontractor” as a matter of law. Conversely, even though a material supplier may not have a contractors’ license, he may still be classified as a subcontractor based on his scope of work. Based on recent case law, the method of determining whether an entity is a subcontractor or a material supplier has been clarified. The classification will depend on the scope of work that the hired party actually agreed to perform on the project. Read the court decision
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Reprinted courtesy of William L. Porter, The Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

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Courts Generally Favor the Enforcement of Arbitration Provisions

May 10, 2021 — David Adelstein - Florida Construction Legal Updates
In recent posts (here and here) I have discussed arbitration provisions and cases dealing with the enforceability of arbitration provisions. The case of Lemos v. Sessa, 46 Fla.L.Weekly D701a (Fla. 3d DCA 2021) deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions. First, courts will and should try to resolve any ambiguity in arbitration provisions in favor of arbitration. Second, when there is an offending arbitration provision or one that includes language that violates public policy, the trial court “should sever the offending provisions from the arbitration clause so long as such severance does not undermine the parties’ intent.” Lemos, supra. This principle is reinforced when the arbitration provision is in an agreement that contains a severability provision. 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

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