Seattle Washington Building Expert Directory

New Strategy for Deterring Intracorporate Litigation?: Delaware Supreme Court Supports Fee-Shifting Bylaws

May 13, 2014 — Marc Casarino and Lori Smith – White and Williams LLP
A fee-shifting bylaw of a Delaware non-stock corporation is not facially invalid according to the Delaware Supreme Court’s May 8, 2014 opinion in ATP Tour, Inc. v. Deutscher Tennis Bund. In this case, ATP Tour, Inc., a non-stock membership corporation (“ATP”) governed by a seven member board, had adopted a bylaw provision which provided that current and former members of ATP would be responsible for the litigation costs arising out of any litigation initiated by any such member against ATP or any of the other members in which the initiating party did not obtain a judgment on the merits that substantially achieved in substance and amount the full remedy sought. The bylaw provision had been adopted, in accordance with ATP’s charter, by the Board unilaterally without any consent from the members. The members had agreed at the time they joined ATP to be bound by the bylaws, as amended from time to time. Two members of ATP initiated a suit against ATP relating to certain actions taken with respect the ATP’s tournament schedule and format alleging both federal antitrust claims and Delaware fiduciary duty claims but did not prevail on any of their claims. ATP then moved to recover its legal fees relating to such actions. Reprinted courtesy of Marc Casarino, White and Williams LLP and Lori Smith, White and Williams LLP Mr. Casarino may be contacted at casarinom@whiteandwilliams.com; Ms. Smith may be contacted at smithl@whiteandwilliams.com Read the court decision
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Time Limits on Hidden Construction Defects

November 06, 2013 — CDJ STAFF
From the time a home is built, California starts a ten-year countdown, which Alan I. Schimmel, writing at California Lawyer, notes is not a statute of limitations, but a statute of repose. During that time, homeowners might be able file a claim over construction defects that don’t immediately become evident. After that ten-year limit, “any latent defects they discover would have to be corrected using money from their own pockets.” The readily observable defects, the patent defects, have a four-year limit. Mr. Schimmel focusses on latent defects, “which generally lurk behind walls or underground.” He also notes that “they may cause catastrophic damage before they are even detected.” If a construction defect is found, the “law requires the owner of a single-family residence to notify the builder in writing of the claimed defects.” Read the court decision
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Court Affirms Summary Adjudication of Bad Faith Claim Where Expert Opinions Raised a Genuine Dispute

July 06, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In 501 East 51st Street etc. v. Kookmin Best Ins. Co., Ltd. (No. B293605, filed 4/2/20, ordered pub. 4/16/20), a California appeals court affirmed summary adjudication and dismissal of a bad faith claim based on the genuine dispute doctrine. 501 East 51st Street Long-Beach-10, LLC (501) was the owner of a 10-unit apartment complex, insured by Kookmin Best. In 2017, an underground water main alongside the building burst which, according to 501, caused the building to move and crack. 501 made a claim and supplied a geotechnical report finding cracks in the foundation walls, cracks in the stucco and significant floor deformation and tilting near the water leak. The engineer’s opinion concluded that that “existing building distress was substantially contributed to by the water main break. The water introduced to the soil medium appears to have triggered differential foundation movement causing the stress features to develop.” Kookmin retained its own engineers to investigate, who returned an opinion that the leak had exacerbated long-term pre-existing settlement which would continue. Under the policy, damage to the building caused by earth movement and settlement were excluded, but water damage resulting from an “accidental discharge” of water was covered. Kookmin then obtained an opinion from coverage counsel, who opined that only damage allocable to the water leak would be covered. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Are Untimely Repairs an “Occurrence” Triggering CGL Coverage?

January 17, 2023 — Christopher G. Hill - Construction Law Musings
All Class A commercial contractors in Virginia are required to have a minimum level of Commercial General Liability (CGL) coverage. As a general rule, this insurance is there for damage to property or persons arising from an “occurrence” that is covered by the policy. Many cases that are litigated relating to coverage for certain events under a CGL policy turn on the definition of “occurrence” and whether the event leading to a request for coverage constitutes an “occurrence.” A recent case in Fairfax County, Virginia, Erie Insurance Exchange v. Spalding Enterprises, et al., is just such a case. In the Spalding Enterprises case, the Court considered the following scenario. A homeowner, Mr. Yen contracted with Spalding Enterprises to fix some fire damage at his home. Spalding promised the repairs would be complete in October of 2019. However, after Mr. Yen paid a $300,000.00 deposit, Spalding Enterprises stated that the work would not be completed until November of 2019. Yen then fired Spalding Enterprises and sued for breach of contract, constructive fraud, and violation of the Virginia Consumer Protection Act. Spalding Enterprises sought coverage from Erie Insurance for the claim and Erie denied coverage and sought a declaratory judgment that the events alleged in the Complaint by Mr. Yen did not fall under the definition of “occurrence” in the CGL policy held by Spalding Enterprises. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

WSHB Secures Victory in Construction Defect Case: Contractor Wins Bench Trial

October 01, 2024 — Wood Smith Henning & Berman
Wood Smith Henning & Berman is pleased to announce a significant victory in a bench trial led by trial attorney Thomas Fama. The case, which had been pending for nearly five years due to pandemic-related delays and unreasonable demands by the plaintiff, concluded with a resounding judgment in favor of the defendant. "The result of this trial is a testament to our team's unwavering tenacity and strategic focus throughout the entire process," stated WSHB partner Tom Fama, lead counsel in the case. "We kept our eye on the proverbial ball and diligently worked to expose the lack of evidence supporting the plaintiff's claims." The matter involved allegations of defective installation of a solar energy system, which the plaintiff claimed leaked during inclement weather. Fama and his team successfully demonstrated that the plaintiff's claims lacked substance, highlighting numerous pre-existing conditions on the roof that could have been responsible for the problem. Read the court decision
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Reprinted courtesy of Wood Smith Henning & Berman

How To Fix Oroville Dam

January 04, 2018 — Henry W. Burke - Engineering News - Record
Originally Published by CDJ on March 22, 2017 On Sunday, Feb. 12, California officials ordered the immediate, mandatory evacuation of 188,000 residents from towns below the Oroville Dam. Two days later, when federal and state officials deemed the dam safe, the evacuation order was rescinded, and people were allowed to return to their homes. It isn't often that hundreds of thousands of people in the U.S. have to leave their homes because of worries about a catastrophic structural failure. Read the court decision
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Reprinted courtesy of Henry W. Burke, ENR
Mr. Burke may be contacted at hwburke@cox.net

South Carolina Supreme Court Requires Transparency by Rejecting an Insurer’s “Cut-and-Paste” Reservation of Rights

February 16, 2017 — Theresa A. Guertin & H. Scott Williams - Saxe Doernberger & Vita, P.C.
In a decision rendered on January 11, 2017, the Supreme Court of South Carolina reminded policyholders that they are entitled to an explanation of any and all grounds upon which their insurer may be contesting coverage in a reservation of rights letter. Specifically, in Harleysville Group Insurance v. Heritage Communities, Inc. et al., 1 the court found that an insurer’s reservation of rights, which included a verbatim recitation of numerous policy provisions that the court identified as the “cut-and-paste” method, was insufficient to reserve its rights to contest coverage. In 2003, Heritage Communities, Inc. (“Heritage”), a parent company of several corporate entities engaged in developing and constructing condominium complexes from 1997 to 2000, was sued by multiple property owners’ associations. The lawsuits sought actual and punitive damages against Heritage as a result of alleged construction defects, including building code violations, structural deficiencies, and significant water intrusion. During the period of construction, Heritage was insured by Harleysville Group Insurance (“Harleysville”) under several primary and excess general liability insurance policies. Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C. and H. Scott Williams, Saxe Doernberger & Vita, P.C. Ms. Guertin may be contacted at tag@sdvlaw.com Mr. Williams may be contacted at hsw@sdvlaw.com Read the court decision
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Contractor Underpaid Workers, Pocketed the Difference

February 10, 2012 — CDJ STAFF

Property Casualty 360 reports that the owner of a construction company in California’s Bay Area has been arraigned in San Francisco Superior Court. The fifty-seven felony counts include charges of payroll theft and insurance fraud.

San Francisco District Attorney, George Gascon is quoted as saying that Doherty’s actions “hurts the honest businesses that were unable to successfully compete for these projects which the defendant was able to underbid and win as a result of this scheme.”

Frances Ann Doherty, owner of Doherty Painting & Construction has been charged with submitting false documentation as to what wages she paid her workers. It is alleged that over three years she pocketed $600,000. Additionally, she is charged with underpaying her insurer by more than $100,000 by submitting to them the fake payroll information.

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