Seattle Washington Building Expert Directory

Drop in Civil Trials May Cause Problems for Construction Defect Cases

August 27, 2013 — CDJ STAFF
Over the last fifty years, the number of lawsuits that have been settled by trial have dropped sharply, according to Kenneth Childs, writing in the Idaho Business Review. Childs notes that in 1962, 11.5% of federal civil cases were resolved at trial, but in 2002, only 1.8 % percent went to trial. He makes the supposition that, due to their complexity, construction defect trials are even less likely to be resolved at trial. Instead, they are being resolved in mandatory arbitration. Views on arbitration have changed over the years and the courts have gone from what he describes as “somewhat hostile to it” to embracing, encouraging, and even mandating it. Childs notes there are some problems to this climate of arbitration. He notes that arbitrators can “operate by their own rules and according to their own standards.” The decisions made by arbitrators “are not subject to appellate review,” which allows arbitrators “to ignore the law entirely.” Read the court decision
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Anti-Concurrent Causation Clause Bars Coverage for Pool Damage

February 23, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Relying upon the policy's anti-concurrent causation clause, the Illinois Court of Appeals affirmed the trial court's ruling that there was no coverage for a pool that popped out of the ground. Bozek v. Erie Ins. Group, 2015 Ill. App. LEXIS 940 (Ill. Ct. App. Dec. 17, 2015). Following a rainstorm, the insureds reported damage to the swimming pool to Erie. An investigation determined that the heavy rain saturated soils around the pool. This created a significant uplift hydrostatic pressure. The weight of the water in the pool typically prevented the uplift forces, but the pool had been emptied to clean debris making it susceptible to uplift. The pool had a pressure relief valve to prevent uplift, but it was not working properly. As a result, the pool was damaged to the point that it had to be replaced in its entirety. The heaving of the pool also damaged the concrete slab around the pool, which also had to be replaced. 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

Public Policy Prevails: Homebuilders and Homebuyers Cannot Agree to Disclaim Implied Warranty of Habitability in Arizona

November 01, 2022 — Ryan Bennett - The Subrogation Strategist
In Zambrano v. M & RC II LLC, et al., 2022 Ariz. LEXIS 309, the Supreme Court of Arizona held that a homebuilder and homebuyer could not waive or disclaim the implied warranty of workmanship and habitability. While the court would normally enforce a contract between two parties – even if one side made a “bad deal” – they will not do so if the contract’s terms are against public policy. In this case, Tina Zambrano (Zambrano) signed a purchase agreement with the homebuilder to buy a newly built home. The agreement included provisions which expressly disclaimed any implied warranties, including the warranty of habitability and workmanship. After the purchase, Zambrano claimed that there were construction defects within the home, including popped nails in the drywall and issues with the home’s foundation. Zambrano sued the homebuilder for breach of the implied warranty of workmanship and habitability. The homebuilder moved for summary judgment based on the waivers within the contract and the trial court, agreeing that the waivers applied, dismissed the case. Zambrano appealed and the appellate court reversed the trial court’s decision. The appellate court specifically explained that Arizona has a public policy interest in protecting consumers. Read the court decision
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Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

Do Not Lose Your Mechanics Lien Right Through a Subordination Agreement

December 21, 2020 — William L. Porter - Porter Law Group
If you are a member of the California construction industry you might know that the right of a contractor, subcontractor or supplier to record a mechanics lien to protect the right to payment is well protected by state law. In fact, our California Constitution, article XIV, Sec. 3 specifically elevates the right to a mechanics lien to “Constitutional right”. The right to a mechanics lien is further protected by a statutory framework, including Civil Code sec. 8122 which states:

“An owner, direct contractor, or subcontractor may not, by contract or otherwise, waive, affect, or impair any other claimant’s rights under this part, whether with or without notice, and any term of a contract that purports to do so is void and unenforceable unless and until the claimant executes and delivers a waiver and release under this article.”

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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

Insurer's Motion for Judgment on the Pleadings for Construction Defect Claim Rejected

January 22, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The magistrate judge recommended that the insurer's motion for judgment on the pleadings be denied in a case involving coverage for the insured subcontractor's alleged faulty workmanship. Evanston Ins. Co. v. Sonny Glasbrenner, Inc., 2023 U.S. Dist. LEXIS 190019 (M.D. Fla. Oct. 20, 2023). Cone & Graham (C&G), the general contractor, subcontracted with Sonny Glasbrenner, Inc. (SGI) to work on the project. The project involved the rehabilitation of a bridge due to deterioration of the existing concrete bridge deck by adding additional cross bracing to further stiffen the steel girders and using special lightweight concrete. C&G contracted SGH to demolish the existing concrete bridge deck. SGI completed the work. Thereafter, C&G made a demand to SGI for alleged damaged caused by SGI's work. C&G alleged that SGI was negligent in performing the demolition work, causing substantial damage to the existing bridge girders. C&G sued SGI. 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

U.S. Tornadoes, Hail Cost Insurers $1 Billion in June

July 09, 2014 — Kelly Gilblom – Bloomberg
Tornadoes, hail and windstorms that pounded the U.S. from the Rocky Mountains to the Tennessee Valley last month will probably cost insurers more than $1 billion, Aon Plc said in a report. Hailstorms and winds greater than 90 miles an hour (145 kilometers) in June caused billions of dollars of economic losses, led by a full week of storms early in the month, the London-based insurance broker said today. More than 300 tornadoes hit the U.S. last month, compared with 125 a year earlier and 111 in June 2012, according to preliminary data from the National Weather Service’s Storm Prediction Center. May, June and July tend to be the worst months for twisters, it said. Severe weather from June 3 to June 9 this year killed three people and led to more than 100,000 claims, Aon said. Later in the month, “hail and winds gusting to hurricane strength tracked eastward,” the broker said in its report. The storm “shattered windows, punctured roofs and downed trees onto homes, structures and vehicles.” Read the court decision
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Reprinted courtesy of Kelly Gilblom, Bloomberg
Ms. Gilblom may be contacted at kgilblom@bloomberg.net

Manhattan’s Property Boom Pushes Landlords to Sell Early

August 26, 2015 — Sarah Mulholland – Bloomberg
Manhattan property owners are cashing out ahead of schedule. With New York real estate values and rents surging, owners of commercial properties acquired as recently as a year ago are already seeking buyers. In the case of one Midtown site, the developer scrapped construction plans to sell an empty plot of land. There’s so much buyer demand that in some situations it’s more opportune for landlords to sell rather than follow through on plans for redevelopment or filling buildings with new tenants. A record $29.4 billion of Manhattan property deals were completed in the first half of 2015, according to brokerage Jones Lang LaSalle Inc., part of a five-year real estate rally that’s pushed prices to new highs in big U.S. cities. Read the court decision
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Reprinted courtesy of Sarah Mulholland, Bloomberg

Texas Supreme Court to Review Eight-Corners Duty-to-Defend Rule

April 05, 2021 — Jared De Jong - Payne & Fears
The Texas Supreme Court has accepted certified questions from the Fifth Circuit Court of Appeals to clarify Texas’ eight-corners rule for determining the existence of a duty to defend. In Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit asked the Texas Supreme Court to provide guidance on Texas insurance law. In Bitco, the insured was sued for negligently drilling an irrigation well. The insured allegedly got a drilling bit stuck in a bore hole, refused to fix the issue, and eventually abandoned the well. The policy did not cover continuing property damage known to the insured before the policy incepted. The policy period ran from Oct. 6, 2015 to Oct. 6, 2016, and the parties stipulated the drill bit became stuck in November 2014. Read the court decision
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Reprinted courtesy of Jared De Jong, Payne & Fears
Mr. De Jong may be contacted at jdj@paynefears.com

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