Seattle Washington Building Expert Directory

Illinois Court Determines Insurer Must Defend Property Damage Caused by Faulty Workmanship

July 11, 2011 — Tred R. Eyerly - Insurance Law Hawaii

The Illinois Court of Appeals determined the insurer must defend allegations of property damage arising from faulty workmanship. Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc., 2011 Ill. App. Unpub. LEXIS 1443 (Ill. Ct. App. June, 20, 2011).

Larsen was a subcontractor for Weather-Tite in a condominium building. Weather-Tite installed windows on the project and hired Larsen to apply sealant to the windows. The windows subsequently leaked and caused water damage within the complex.

The homeowner’s association sued Weather-Tite for breach of express and implied warranties. Weather-Tite filed a third-party complaint against Larsen, seeking contribution and alleging that Larsen was in breach of contract by failing to add Weather-Tite as an additional insured under Larsen’s CGL policy.

Both Weather-Tite and Larsen tendered to Larsen’s insurer. Both tenders were denied because the insurer contended the complaints alleged only construction defects, and not “property damage” or an “occurrence” within the terms of the policy.

The insurer filed suit for a declaratory judgment. The trial court granted the insurer’s motion as to Weather-Tite, but granted Larsen’s cross-motion for summary judgment.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Playing Hot Potato: Indemnity Strikes Again

September 17, 2015 — Garret Murai – California Construction Law Blog
Indemnity can be like playing hot potato (for those of you closer to the Minecraft generation, in the game of hot potato, a metaphoric “hot potato” is tossed between (ahem amongst) players while music is playing, and when the music stops, the player holding the hot potato is out. It’s a barrel of monkeys, trust me.). Anyway, like hot potato, with indemnity an owner typically requires its general contractor to indemnify the owner (sometimes the property owner in TI projects and occasionally design professionals) from and against any and all claims arising out of, related to . . . blah, blah, blah . . . the general contractor’s scope of work . A general contractor in turn will usually require indemnity from its subcontractors. And subcontractors will require indemnity from their sub-subcontractors. And down the line it goes with each party pointing their finger at the next party down the proverbial “food chain.” But it doesn’t always happen that way as the next case, American Title Insurance Company v. Spanish Inn, Case No D067137, California Court of Appeals for the Fourth District (August 14, 2015), illustrates. 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

Denver Passed the Inclusionary Housing Ordinance

August 27, 2014 — Beverley BevenFlorez-CDJ STAFF
ABC 7 reported that Denver, Colorado has passed a city ordinance that will require “developers building 30 or more units to offer 10 percent of them at a cheaper rate.” The Inclusionary Housing Ordinance is meant to increase the number of homes for “middle income earners.” "This city is really facing a housing crisis when it comes to affordability," Samaria Crews, deputy director of the Front Range Economic Strategy Center, told ABC 7. Builders can opt out of the ordinance by paying a fee, and a “new amendment would allow builders to build the low-income inventory off-site.” Read the court decision
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Three Kahana Feld Attorneys Selected to 2024 NY Metro Super Lawyers Lists

October 28, 2024 — Linda Carter - Kahana Feld
Kahana Feld is pleased to announce that Tim Capowski was selected to the 2024 NY Metro Super Lawyers list, and Christopher Theobalt and Sofya Uvaydov were selected to the 2024 NY Metro Rising Stars list. All three attorneys were recognized in the Appellate practice area. Tim Capowski is a partner at Kahana Feld and chair of the firm’s National Appellate Litigation & Consulting Group. He has spent the better part of three decades at the forefront of the insurance defense bar. Tim has litigated hundreds of appeals and thousands of motions in state and federal and appellate courts throughout New York and around the country. He handles a variety of complex litigation including catastrophic property and casualty claims, construction defect, professional liability, labor and employment law, mass torts, insurance coverage, and more. Read the court decision
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Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint

January 13, 2020 — Rahul Gogineni - The Subrogation Strategist
In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party. In Barrett, after sustaining injuries while working at a refinery, David Barrett (Barrett) filed suit against Berry Contracting, LP and Elite Piping & Civil, Ltd. on July 6, 2016. In Barrett’s first amended complaint, which he filed on August 23, 2016, Barrett added Govind Development, LLC (Govind) as another defendant. Barrett subsequently filed a second amended complaint (omitting Govind) and, on December 27, 2017, shortly before the statute of limitations ran, a third amended complaint (reasserting claims against Govind). On January 28, 2018, after the statute of limitations period ran, Barrett filed a certificate of merit. Govind filed a motion to dismiss the claim, asserting that Barrett violated the statute that required a certificate of merit to be filed with the complaint, Tex. Civ. Prac & Rem. Code §150.002.

Tex. Civ. Prac. & Rem. Code §150.002(a) states, In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect or registered professional land surveyor…

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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

A Guide to Evaluating Snow & Ice Cases

December 13, 2021 — Lewis Brisbois
New York, N.Y. (November 9, 2021) - As the winter season nears, defendant property owners are reminded that New York law imposes liability for sidewalk accidents resulting from slip and falls on snow and ice. Within the City of New York, Administrative Code § 7-210 imposes liability on the owners of real property (other than single-family dwellings) to maintain an abutting sidewalk in a reasonably safe condition, which includes the removal of snow and ice. Some of the most important issues in this area of the law were recently reaffirmed by New York’s Appellate Division in Zamora v. David Caccavo, LLC, 190 A.D.3d 895 (2d Dept. 2021). In particular, that the Court of Appeals made clear in 2019 that the statutory non-delegable duty to remove snow and ice from sidewalks extends even to out-of-possession landowners, who, although they may shift the work of maintaining the sidewalk to another, "cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under [Administrative Code §] 7-210." Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 174 (2019). In other words, even if the defendant leases the property to a tenant who is obligated under the lease to maintain the property in every way, including snow and ice on sidewalks, the defendant cannot escape liability by claiming the tenant is solely responsible for the plaintiff’s loss. On the other hand, property owners are not strictly liable for all personal injuries that occur on the abutting sidewalks, because the statute "adopts a duty and standard of care that accords with traditional tort principles of negligence and causation." Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d at 171. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Damages to Property That is Not the Insured's Work Product Are Covered

October 27, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Reversing the district court, the Eighth Circuit predicted that under Iowa law, damage to property other than the insured's work product was covered. Decker Plastics Inc. v. West Bend Mut. Ins. Co., 2016 U.S. App. LEXIS 15235 (8th Cir. Aug. 19, 2016). A 1's, Inc. packaged and sold landscaping materials. Decker Plastics Corporation sold plastic bags to A 1's. The plastic bags were filled with sand and rock, and stored outdoors for sale to customers. Because Decker failed to manufacture the bags with an ultraviolet inhibitor, the bags deteriorated in the sunlight. This caused small shreds of plastic to commingle with A 1's landscaping materials. The plastic was a contaminant that could not be inexpensively separated form A 1's products. A 1's had to clean spilled materials from customer sites, purchase replacement bags from another supplier, and pay to clean up its own property. 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

Collapse Claim Fails Due To Defectively Designed Roof and Deck

May 28, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The insured's claim for collapse of his roof and deck failed due to defective design and other exclusions under the policy. Dudar v. State Farm & Cas. Co., 2024 U.S. Dist. LEXIS 52706 (N.D. Ga. Feb. 6, 2024). The insured submitted a claim to State Farm for damage to the roof ("Roof Claim"). State Farm's adjuster placed a ladder on the deck to access the roof and a portion of the deck collapsed. The insured then reported a claim to State Farm for damage to the deck ("Deck Claim"). The claims were denied and suit was filed. The roof had leaked on several occasions prior to submission of the Roof Claim. On February 25, 2022, the insured discovered that a branch had cut a hole in the tarp, causing water to leak into the home. The insured performed repairs on the roof. On March 8, 2022, a storm caused more water to seep through the tarp into the ceilings and walls. Thereafter, the Roof Claim was submitted. The damage from the leaking roof and the deck collapse were caused by rotting. The rotting, in turn, was caused by a combination of defective building design and resulting water damage from rain and storms over the years. The roof and deck were constructed to provide mutual support to one another. The roof did not contain an adequate slope, which caused water to seep down into the walls and flooring rather than to flow downward and away from the property. Over time, penetrating water caused portions of the roof, the floor, and the supporting wall between the roof and deck to rot. 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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