Seattle Washington Building Expert Directory

The Hidden Price of Outdated Damage Prevention Laws: Part I

November 21, 2018 — Brigham A. McCown - Construction Executive
Excavators know that dialing 811 triggers a process that requires all utilities operating in the service area to find and mark the location of their underground facilities so that they are not damaged during the excavation process. In addition, marking the location of the utilities is intended to keep the public safe, for instance by preventing an excavator from striking a gas line. But excavators also know that in most states, the laws and regulations that govern these procedures are weak and that enforcement is even weaker. It’s an unfortunate fact that excavators and the public – typically the least culpable parties – suffer the consequences of weak damage prevention laws and lack of strong enforcement regimes. Reprinted courtesy of Brigham A. McCown, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Tetra Tech-U.S. Cleanup Dispute in San Francisco Grows

July 15, 2019 — Mary B. Powers - Engineering News-Record
The U.S. Justice Dept. and consultant Tetra Tech are ramping up a battle over alleged false claims for payment the firm submitted to the U.S. Navy under $261 million in contracts for radiological tests and cleanup at San Francisco’s former Hunters Point base, a Superfund site being developed for up to 12,000 residential units. Read the court decision
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Reprinted courtesy of Mary B. Powers, ENR
ENR may be contacted at ENR.com@bnpmedia.com

Attempt to Overrule Trial Court's Order to Produce Underwriting Manual Fails

April 25, 2022 — Tred R. Eyerly - Insurance Law Hawaii
After being ordered by the trial court to produce its underwriting manual, the insurer's writ of certiorari to quash the order was denied by the Florida Court of Appeals. People's Trust Ins. Co. v. Foster, 2022 Fla. App. LEXIS 542 (Fla. Ct. App. Jan. 26, 2022). The insured sued after his claim for damage caused by a water pipe in his home that leaked. In discovery, the insurer refused to produce its underwriting manual. Ruling on a motion to compel, the trial court ordered that the manual be produced. The insurer appealed. On appeal, the insurer argued its underwriting manual was categorically prohibited in breach of contract cases until and unless bad faith litigation commenced. Although courts had quashed the premature discovery of insurers' business practices, claims files, underwriting files, underwriting manuals, and the like in breach of contract actions, there was no categorical legal rule prohibiting discovery of underwriting manuals in breach of contract cases, especially if they were relevant. 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

Appellate Attorney’s Fees and the Significant Issues Test

June 29, 2017 — David Adelstein - Florida Construction Legal Updates
The significant issues test to determine the prevailing party in construction lien actions (which, by the way, also applies to breach of contract actions) applies to appellate attorney’s fees too! Under this test, the trial court has discretion to determine which party prevailed on the significant issues of the case for purposes of attorney’s fees. The trial court also has discretion to determine that neither party was the prevailing party for purposes of attorney’s fees. In a recent decision, Bauer v. Ready Windows Sales & Service Corp., 42 Fla. L. Weekly D1417a (Fla. 3d DCA 2017), there were competing motions for appellate attorney’s fees. Both parties believed they should be deemed the prevailing party under Florida Statute s. 713.29 (statute that authorizes prevailing party attorney’s fees under Florida’s Construction Lien Law). The appellate court held that neither party was the prevailing party under the significant issues test: “[W]e conclude that each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party.” Bauer, supra. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Eleventh Circuit Finds No Coverage for Faulty Workmanship Claims

November 15, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit affirmed the district court's grant of summary judgment to the insurer on the general contractor's claims for damages due to faulty workmanship. Tricon Dev. of Brevard v. Nautilus Ins. Co., 2021 U.S. App. LEXIS 27317 (11th Cir. Sept .10, 2021). Tricon was the general contractor for a condominium project in Florida. Tricon hired a subcontractor to fabricate and install metal railings for the project. The subcontractor was insured by Nautilus under two CGL policies. The policies had endorsements to add Tricon as an additional insured. The subcontractor fabricated some of the railings, but they had defects and damage. Further they were not installed properly and did not meet the project's specifications. Tricon found another manufacturer to fabricate new railings to satisfy the projects' requirements. Tricon agreed to pay the cost of removing the subcontractor's railings and fabricating and installing new ones. If submitted a claim to Nautilus to cover these costs. 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

Mediation Fails In Federal Lawsuit Seeking Damages From Sureties for Alleged Contract Fraud

August 17, 2020 — Richard Korman - Engineering News-Record
After mediation failed, a federal whistle blower lawsuit over alleged fraud against two contractors, which also targets sureties and a surety bond producer, is moving forward. The parties have asked a U.S. district court judge in Washington, D.C. to rule on outstanding motions in preparation for a possible trial. Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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California Senator Proposes Bill to Require Contractors to Report Construction Defect Cases

January 04, 2018 — David Suggs - Bert L. Howe & Associates, Inc.
According to Renne Schiavone’s of Patch.com in her article “Sen. Hill Wants Contractors to Report Construction Defect Cases”, Senator Jerry Hill of San Mateo County proposed a bill on December 21st, 2017 requiring construction defect settlements to be reported by contractors to the licensing board. This proposal comes after the tragic incident that took place back on June 16, 2015 during which a balcony on the fifth floor of a Berkeley apartment complex collapsed. This resulted in the death of six students and serious injuries for an additional seven individuals. An investigation revealed that three years prior to the balcony collapse, Segue Construction, who built the apartment complex, had paid $26.5 million in construction defect lawsuit settlements. Since the law doesn’t require these settlements to be reported by contractors, the Contractors State License Board (CSLB) wasn’t aware of the case. "Working together we can take even stronger steps to protect the public by ensuring that this critically important data is accessible to the Contractors State License Board," said Senator Hill. Senate Bill 465 will aim to protect consumers with more regulation and transparency. Senator Hill is also working on Senate Bill 721 which would require periodic condo and apartment building inspections of exterior elevated walking surfaces, stairwells, and balconies. Read the court decision
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What Happens When a Secured Creditor Files a Late Claim in an Equity Receivership?

September 28, 2017 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Pitting a receivership court’s inherent equitable powers against pre-existing property rights can lead to some pretty interesting questions. In SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339, 1343-44 (11th Cir. 2017), the Eleventh Circuit recently examined whether a district court’s inherent authority to establish a claims submission process allowed the court to extinguish a security interest in real property based solely upon an untimely proof of claim. Much to the relief of secured creditors, the Eleventh Circuit held that the district court erred, as a matter of law, by extinguishing the creditor’s pre-existing property rights under those circumstances. Introduction Equity vests a district court with “‘broad powers and wide discretion to determine relief in an equity receivership.’” Wells Fargo, 848 F.3d at 1343-44 (quoting SEC v. Elliot, 953 F.2d 1560, 1566 (11th Cir. 1992)). These powers include: (i) establishing procedures for the submission of claims to a receiver, and (ii) setting a claims bar date. Id. at 1344 (citing SEC v. Tipco, Inc., 554 F.2d 710, 711 (5th Cir. 1977)). Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

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