Seattle Washington Building Expert Directory

Economic Damages Cannot be Based On Speculation

October 16, 2018 — David Adelstein - Florida Construction Legal Updates
Economic damages, unlike non-economic damages (such as those in personal injury disputes), need to rest on a reasonable basis. Economic damages are those routinely seen in a construction dispute. These damages cannot be based on conjecture or guesswork and need to be supported by competent substantial evidence. Otherwise, the economic damages will be deemed too speculative because they are not reasonably quantifiable. I recently discussed a case involving the professional boxer Canelo Alvarez that was sued by a former promoter for unjust enrichment. Although the promoter recovered a jury verdict for unjust enrichment damages against Canelo Alvarez, the verdict was reversed because the methodology utilized by the promoter to demonstrate damages was speculative. This is definitely not what a plaintiff wants to happen after prevailing at the trial level! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

South Carolina Clarifies the Accrual Date for Its Statute of Repose

March 18, 2019 — William L. Doerler - The Subrogation Strategist
In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640,[1] to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence. In Ocean Winds Corp. of Johns Island v. Lane, 556 S.E.2d 377 (S.C. 2001), the Supreme Court of South Carolina addressed the question of whether § 15-3-640 ran from substantial completion of the installation of the windows at issue or on substantial completion of the building as a whole. Citing § 15-3-630(b),[2] the court found that the windows “were ‘a specified area or portion’ of the larger condominium project” and, upon their incorporation into the larger project they could be used for the purpose for which they were intended. Thus, the court held that “the statute of repose began running when installation of the windows was complete.” Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

The Colorado Court of Appeals Rules that a Statutory Notice of Claim Triggers an Insurer’s Duty to Defend.

October 23, 2012 — David M. McLain, Higgins, Hopkins, McLain & Roswell

Gene and Diane Melssen d/b/a Melssen Construction (“Melssen”) built a custom home for the Holleys, during which period of time Melssen retained a CGL insurance coverage from Auto Owners Insurance Company. Soon after completion of the house, the Holleys noticed cracks in the drywall and, eventually, large cracks developed in the exterior stucco and basement slab. Thereafter, the Holleys contacted Melssen, the structural engineer, an attorney, and Auto-Owners, which assigned a claims adjuster to investigate the claim.

In April 2008, the Holleys sent Melssen a statutory notice of claim pursuant to C.R.S. § 13-20-803.5 (“NOC”). In this NOC, the Holleys claimed approximately $300,000 in damages related to design and construction defects. The Holleys also provided a list of claimed damages and estimated repairs, accompanied by two reports from the Holleys’ consultant regarding the claimed design and construction defects. In June 2008, Melssen tendered the defense and indemnity of the claim to Auto-Owners. While Auto-Owners did not deny the claim at that time, it did not inspect the property or otherwise adjust the claim. Thereafter, in October 2008, Auto-Owners sent Melssen a letter denying coverage on the basis that the damage occurred outside of the applicable policy period.

Ultimately, Melssen settled the claims against it for $140,000.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC. Mr. McLain can be contacted at mclain@hhmrlaw.com

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Connecticutt Class Action on Collapse Claims Faces Motion to Dismiss

January 02, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court dismissed some insurers from a class action suit alleging failure to provide coverage for collapse claims. Halloran v. Harleysville Preferred Ins. Co., 2018 U.S. Dist. LEXIS 179807 (D. Conn. Oct. 19, 2018). A class of homeowners brought suit in 2016 against their homeowners insurance companies ("defendants") for failure to cover collapse claims. Plaintiffs alleged they bought their homes between 1984 and 2015. Each of the homes had basement walls that were "crumbling and cracking due to the oxidation of certain minerals contained in the concrete." As a result of the deteriorating concrete, plaintiffs claimed that their basement walls were in a state of collapse. 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

Judge Gives Cintra Bid Protest of $9B Md. P3 Project Award New Life

March 21, 2022 — Jim Parsons - Engineering News-Record
The Maryland Dept. of Transportation will have to reconsider a protest lodged by the losing bidder for the initial phase of its $9-billion Express Lanes project, according to a Feb. 17 state circuit court judge's ruing. The decision likely stalls the state's ambitious plan to add capacity along portions of the I-495/Beltway and I-270 west of Washington, DC, using a progressive public-partnership. Reprinted courtesy of Jim Parsons, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Veterans Day – Thank You for Your Service

December 05, 2022 — Travis Colburn - Ahlers Cressman & Sleight
Happy Veterans Day[1] to our country’s servicemembers past and present! ACS would like to express its deepest gratitude and respect in saying thank you to those that have served, or are serving, in our armed forces. It undoubtedly takes incredible bravery, fortitude, integrity, respect, and a commitment to our country’s evolving ideals. Some of those same attributes that are necessary for service are also well-geared toward a post-military career in construction. As some already know, Veterans have unique construction contracting opportunities at both the state and federal level. The following is a high-level overview of the process and opportunities for veterans who are not aware or who are considering a career in construction. There are federal and state level opportunities for Veteran-owned businesses. The initial step in accessing federal and state level contracting opportunities is different for each but begins with certification/verification. At the federal level, effective January 1, 2023, all responsibilities for the verification of Veteran-owned small businesses (“ VSOB”) will transfer from the Department of Veterans Affairs to the Small Business Administration.[2] Verification is the process that establishes eligibility for access to Veteran-specific benefits, including certain government contracts and the purchase of surplus government property, by confirming that VSOBs and service-disabled Veteran-owned small businesses (“SDVOSB”) are operated by Veterans.[3] Read the court decision
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Reprinted courtesy of Travis Colburn, Ahlers Cressman & Sleight
Mr. Colburn may be contacted at travis.colburn@acslawyers.com

Want to Make Your Jobsite Safer? Look to the Skies.

October 10, 2022 — Rory San Miguel - Construction Executive
New York Gov. Kathy Hochul is set to sign Carlos’ Law for worker protection. The law would set a national precedent for construction site safety, substantially raising the minimum fines for construction companies found liable for onsite injuries. Worksites are very complex, and many factors go into creating a safe space. Following suit, innovative operators are looking at advanced technologies to boost onsite safety, including drone data visualization, which involves flying a drone over a site to capture a highly accurate 3D model of current conditions in close to real time. Using drones can't solve every problem, but it can help not only protect workers but also encourage new ones to join your team. How drone surveying improves jobsite safety 3D mapping a worksite with a drone keeps workers out of harm’s way, helping surveyors avoid potentially dangerous areas filled with constantly moving heavy equipment and machinery. Drone mapping also means surveyors can stay out of the heat, avoiding the risk of excess sun exposure by sending the drone out in their stead to traverse the terrains and slopes of the site. Reprinted courtesy of Rory San Miguel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Steps to Defending against Construction Defect Lawsuits

July 21, 2011 — CDJ STAFF

Writing in Claims Journal, Bryan Rendzio notes that the decline in construction has not been matched by a decline in construction defect lawsuits over condominiums. He reviews the ways in which lawyers representing developers can help protect their clients. He identifies four important considerations in defending developers from claims of construction defects.

He advocates a careful review of the contract. “Under a breach of contract claim, the insured’s duties to the party who brought the claim against the insured flow from the contract. Commonly, construction contracts limit the scope of recoverable damages, such as by waiving consequential damages.’

The next step, according to Rendzio is to check of a settlement agreement is already in place, noting that these are “a familiar occurrence in the construction industry, regardless of any lawsuits having been filed.”

He considers the statute of repose “the single-most decisive weapon an insured possesses in its arsenal during a condo defect lawsuit.” He notes that no lawsuits can be brought for construction defects after the end specified by the statute of repose, and if a lawsuit is brought beforehand, no additional parties can be named once the statute has taken effect.

Finally, he warns adjusters to be suspicious when a condo association requests contractual indemnification. He notes that the pitfall in this is that developers and the subsequent condominium association often have similar names, given the theoretical example of a condo project built by “Fake Lakes LLC” and later run by the “Fake Lakes Condominium Association.” Writing in regards to Florida law, he notes that condominium associations do not have successor interest in contracts developers made with contractors.