Columbus Ohio Building Expert Directory

Endorsement Excludes Replacement of Undamaged Property with Matching Materials

August 20, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The court approved the insurer's endorsement which stated the insured would not pay for undamaged property in order to match damaged property. Noonan v. Am. Family Mut. Ins. Co., 2019 U.S. App. LEXIS 15545 (May 24, 2019). After hail and wind damaged part of the roof in the insureds' home, American Family inspected the roof and determined that it had suffered $12,000 in damage. The insureds disputed this amount and demanded an appraisal to provide a binding estimate of the amount of loss. American Family asked the appraisers to divide their estimate into two categories - one for replacing damaged shingles and another for replacing undamaged shingles that would not match those needed to replace the damaged ones. The appraisers did not do so. They instead found that replacing the entire roof would cost $141,000 and noted there was a matching issue because alternative products did not match the current shingles on the roof. Of the $141,000 needed to replace the entire roof, American Family estimated that $87,232.98 was due to the costs of matching. The insureds sued. The district court remanded the case to the appraisers to clarify the award by differentiating the costs attributable to the actual roof damage from those attributable to shingle matching. The appraisers clarified the award and reported that actual damages were $66,619, meaning that $74,381 was attributable to matching. American Family then paid the actual damages, less the deductible, but refused to pay the rest. 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

Commencing of the Statute of Repose for Construction Defects

November 08, 2021 — David Adelstein - Florida Construction Legal Updates
Florida has a ten-year statute of repose which applies predominantly to construction defect claims. This can be found in Florida Statute s. 95.11(3)(c). After ten years, any rights relative to a construction defect claim are time-barred. However, the statute of repose date has been watered down and can be made to be more of a factual question due to the lack of objectivity as to the date that starts the ten-year repose clock. The watering down of the statute of repose date benefits parties asserting construction defect claims provided they strategically appreciate the question of fact that can be created when up against the statute of repose. Stated differently, when up against the clock to assert a construction defect claim, strategically develop those facts, evidence, and arguments to maximize creating a question of fact as to when the statute of repose clock commenced. Conversely, as a defendant sued for construction defects, you want to maximize the facts, evidence, and arguments to fully establish the date the statute of repose clock had to commence for purposes of a statute of repose defense. The recent opinion in Spring Isle Community Association, Inc. v. Herme Enterprises, Inc., 46 Fla. L. Weekly D2306b (Fla. 5th DCA 2021) demonstrates the factual question associated with the clock that starts the statute of repose date. This factual question is created by Florida Statute s. 95.11(3)(c) that provides:

[T]he action [founded on the design, planning, or construction of an improvement to real property] must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

Spring Isle Community Association, supra. (Note, see also current s. 95.11(3)(c) version in effect per hyperlink above.)

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

EPA Looks to Reduce Embodied Carbon in Materials With $160M in Grants

August 19, 2024 — James Leggate - Engineering News-Record
The U.S. Environmental Protection Agency estimates that construction materials used for buildings and built infrastructure account for more than 15% of global greenhouse gas emissions. The agency now hopes to boost adoption of materials with lower embodied emissions by offering $160 million in grants to better track and ultimately reduce climate pollution associated with those materials. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Difficulty in Defending Rental Supplier’s Claim Under Credit Application

October 11, 2021 — David Adelstein - Florida Construction Legal Updates
In construction, one of the easiest claims to prove from a burden of proof standpoint is that of a supplier, particularly a rental equipment supplier. Oftentimes, these claims are more in the realm of a collection claim because a rental supplier will generally be able to establish that a party opened an account with them, signed a credit application and personal guaranty, and equipment was rented and even delivered to a specific jobsite during set dates. Defending these claims is not so easy. And even if there is a defense as it relates to some amounts, there needs to be an upside challenging those amounts when factoring in the attorney’s fees, costs, and interest on the other amounts and on continuing the dispute. An example of the difficulty in defending these claims from rental suppliers can be found in the recent case of Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806 (Fla. 2d DCA 2021). Here, a contractor rented equipment (e.g, forklifts) from a supplier. The equipment was rented on an open account and the contractor signed a personal guaranty. The supplier sued the contractor for about $81,000 that remained unpaid. The supplier appeared to waste no time and moved for summary judgment with an affidavit from its credit manager. The credit manager affirmed that the contractor executed a credit application for purposes of renting equipment on an open account, the application contained a personal guaranty, and the credit application formed the basis of a contract. The credit manager authenticated the credit application and affirmed that the contractor owed it about $81,000 in unpaid amounts for rental equipment that was furnished under the credit application. 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

New Change Order Bill Becomes Law: RCW 39.04.360

July 08, 2024 — Brett M. Hill - Ahlers Cressman & Sleight PLLC
A new statute (RCW 39.04.360) became effective on June 6, 2024, and it applies to extra work performed by contractors and subcontractors on public and private projects in Washington State. The intent of the original bill was to allow contractors and subcontractors to get paid sooner for undisputed additional work. The statute does not apply to private residential projects of 12 units or less. The statute allows for recovery of interest for contractors/subcontractors at 1% per month (12% per year) on the value of the additional work if the statute is violated. Here are the requirements of the new statute:

Public and private owners must issue a change order for the undisputed amount of additional work performed by a contractor, subcontractor, or supplier no later than 30 days after the work is satisfactorily completed and the change is requested by the contractor.
General contractors, and subcontractors with lower-tier subs, must issue a change order to their subcontractors impacted by the change within 10 days after receipt of the approved change order from the owner/upper-tier contractor.

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Reprinted courtesy of Brett M. Hill, Ahlers Cressman & Sleight PLLC
Mr. Hill may be contacted at brett.hill@acslawyers.com

Insured's Commercial Property Policy Deemed Excess Over Unobtained Flood Policy

June 10, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion for summary judgment, deciding that there was no breach of the policy for failure to pay for flood damage when the insured failed to obtain a policy under the National Flood Insurance Program (NFIP). 570 Smith St. Realty Corp. v. Seneca Ins. Co. Inc., 2019 N.Y. Misc. LEXIS 1773 (N.Y. Sup. Ct. April 4, 2019). The insured's property in Brooklyn was insured by Seneca. Included in the policy was flood coverage in the amount of $1 million with a $25,000 deductible. While the policy was in effect, Hurricane Sandy hit, damaging the property. Plaintiffs timely filed a claim seeking reimbursement of up to policy limits. Seneca paid only $35,883 and later made an additional payment of $33,015. The insured sued for, among other things, breach of the policy for failure to properly indemnify for the losses. Seneca moved for partial summary judgment dismissing the breach of policy claims. Seneca pointed out that the "Other Insurance" provision in the Flood Coverage Endorsement of the policy stated that if the loss was eligible to be covered under a NFIP policy, but there was no such policy in effect, the insurer would only pay for the amount of loss in excess of the maximum limit payable for flood damage under the policy. The maximum NFIP coverage was $500,000. The insured's loss caused by flood was less than $500,000. 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

Before Collapse, Communications Failed to Save Bridge Project

December 30, 2019 — Scott Judy - Engineering News-Record
The National Transportation Safety Board’s Oct. 8 release of documents related to its FIU bridge collapse investigation raises questions but provides no definitive conclusions about why the partially built structure suddenly crashed to the ground on March 15, 2018, killing six. The last official word on the cause of the fatal collapse will have to await the agency’s final report, scheduled to be released on Oct. 22. Scott Judy, Engineering News-Record Mr. Judy may be contacted at judys@enr.com Read the full story... Read the court decision
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Let’s Give ‘Em Sutton to Talk About: Tennessee Court Enforces Sutton Doctrine

July 24, 2023 — Gus Sara - The Subrogation Strategist
In Patton v Pearson, No. M2022-00708-COA-RC-CV, 2023 Tenn. App. LEXIS 231, the Court of Appeals of Tennessee (Court of Appeals) considered whether the lower court erred in dismissing an insurance carrier’s lawsuit against its insured’s tenant for damages sustained in a fire. While the lawsuit was filed in the name of the landlord (i.e., the insured), discovery revealed that the lawsuit was actually a subrogation lawsuit, brought by the landlord’s insurance carrier. The lower court granted the tenant’s motion for summary judgment based on the Sutton Doctrine, holding that the tenant was an implied co-insured under the landlord’s policy. The Court of Appeals affirmed, finding that although the lease agreement did not reference insurance, the Sutton Doctrine applied, which barred the landlord’s carrier from subrogating against the tenant. In 2016, Anita Pearson (Ms. Pearson) signed a lease agreement to rent a home in Nashville, Tennessee, which was owned by John and Melody Patton (collectively, the Pattons). The lease stated that the Pattons were not responsible for the tenant’s personal property. The lease also stated that the tenant would be responsible for any damage caused by her negligence or misuse of the home. The lease was silent as to which party would maintain property casualty insurance and regarding implied co-insured status on any policy. Ms. Pearson purchased renter’s insurance for her personal property. The Pattons secured a property casualty insurance policy for the home. 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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