SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer Not Required to Show Prejudice from an Insured’s Late Notice When the Parties Contract for a Specific Reporting Period

September 09, 2019 — Christopher Raney - Gordon & Rees Insurance Coverage Law Blog
The Fifth Circuit Court of Appeals recently affirmed an order granting summary judgment in favor of the Firm’s insurer client on an issue of first impression in Texas. The issue before the trial court was whether, under Texas law, an insurer is required to demonstrate prejudice resulting from an insured’s failure to comply with an agreed term set in an endorsement to the parties’ insurance contract establishing a specific time limit for an insured to give the insurer notice of a claim. The case involved alleged damage to an insured’s commercial property from a hailstorm. The insured did not report the alleged loss to its insurer until approximately 17 months after the date of loss. The insurer denied the claim based on a one-year notice requirement in a policy endorsement. The Texas Windstorm or Hail Loss Conditions Amendment Endorsement stated that:

In addition to your obligation to provide us with prompt notice of loss or damage, with respect to any claim where notice of the claim is reported to us more than one year after the reported date of loss or damage, this policy shall not provide coverage for such claims.

The insured sued the insurer in Houston federal court, alleging causes of action for breach of contract and violations of the Texas Insurance Code. The insured argued the insurer was required to show prejudice from the insured’s late notice; the insurer argued that a showing of prejudice was not required. The trial court recognized that this issue had not been decided by the Texas Supreme Court of the Fifth Circuit Court of Appeals. Read the court decision
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Reprinted courtesy of Christopher Raney, Gordon & Rees Scully Mansukhani
Mr. Raney may be contacted at craney@grsm.com

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Hammer & Hand’s Top Ten Predictions for US High Performance Building in 2014

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
On Hammer & Hand’s blog, Sam Hagerman, Skylar Swinford, and Dan Whitmore discuss how they expect US high performance building policy to evolve in 2014. The three consultants and builders have built “some of the most notable high performance green building projects around, including Karuna House,” “Pumpkin Ridge Passive House,” and the “Glasswood Commercial Passive House Retrofit,” according to the blog. Hagerman and Whitmore also have served on the Passive House Alliance US board. Predictions cover topics such as Net Zero Energy to Net Positive Energy buildings, renewable energy productions, building energy codes, CO2 heat pumps, and more. Read the court decision
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EEOC Suit Alleges Site Managers Bullied Black Workers on NY Project

June 15, 2020 — Emell D. Adolphus - Engineering News-Record
Bullying, threats and racial slurs detail alleged “hostile” working conditions for black employees at a now complete cement plant modernization project near Albany, N.Y., in a lawsuit filed June 2 by the U.S. Equal Employment Opportunity Commission against CCC Group Inc., a San Antonio, Texas-based general contractor. Emell D. Adolphus, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Florida extends the Distressed Condominium Relief Act

June 17, 2015 — Beverley BevenFlorez-CDJ STAFF
The Distressed Condominium Relief Act had been poised to expire on July 1st, but has now been extended by two additional years by the Florida legislature, the National Review reported. The act was Part VII of the Condominium Act in 2010, and has been previously extended twice. According to the National Review, “This Legislation attempted to allay the fears of potential investors about incurring developer liability in connection with the purchase of bulk units. The Act created a shield in favor of bulk purchasers from such potential liability, especially construction defects liability.” Read the court decision
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Labor Intensive

May 10, 2022 — Neil Flynn - Construction Executive
In 2020, the United States saw a significant decrease in non-fatal workplace injuries, which dropped to 2.1 million from 2.8 million the year before. While the precise extent to which this reduction in workplace injuries is attributable to COVID-19 is unknown, the pandemic was undoubtedly a significant factor. It is also unclear to what extent the pandemic affected the number and rate of workplace incidents in 2021 or might continue to do so in 2022 and beyond. However, it is reasonable to expect that, as pandemic-related restrictions are removed and life returns to normal, the construction industry will revert to pre-pandemic employment levels and beyond. It is also reasonable to conclude that, once that level of recovery is attained, the number and rate of both fatal and non-fatal workplace incidents will increase substantially. Even with the significant reduction in the overall number of workplace injuries in 2020, the United States still saw nearly 8,000 construction workers miss at least one day of work due to an injury sustained on the job, according to the U.S. Bureau of Labor Statistics (BLS). And, despite construction accounting for just 6% of jobs, BLS reports that construction-related incidents account for 20% of workplace deaths, or three every day. This one-fifth share of workplace fatalities makes construction the third-deadliest industry in the United States. Reprinted courtesy of Neil Flynn, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Flynn may be contacted at nf@plattalaw.com

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CGL, Builders Risk Coverage and Exclusions When Construction Defects Cause Property Damage

May 17, 2021 — Jeffrey Cavignac - Construction Executive
Direct damage to property under construction caused by faulty or defective work or defective materials has been a coverage issue for decades. Two specific policies, the Commercial General Liability for the contractors building the structure and the Builders Risk Policy on the project both are sources of potential coverage. A CGL policy protects the named insured (the contractor in this case) from third party liability arising out of the insured’s operations that results in either bodily injury or property damage. Damage to property caused by poor workmanship or defective materials would qualify as property damage. To understand how the CGL policy might respond to claims such as these, it is necessary to evaluate several exclusions in the CGL policy. CGL policies cover “property damage,” defined as physical injury to tangible property, including loss of use of such property, and loss of use of tangible property that has not been physically injured. Reprinted courtesy of Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Construction Contractors Must Understand Retainage In 2021

May 24, 2021 — Ed Williams - Construction Executive
Retainage has become a vital part of the contracting and construction process. If defined precisely, retainage is a practice of withholding a particular percentage of the payment until the project is delivered. However, the practice can turn to be a challenge for small contractors, as it is laid over a lack of trust in the potential and abilities of a contractor, which might cause financial downtime at the later stages of the project when contractors need to pay bills. Since 2020 proved to be a tough year for the entire construction industry, project owners, general contractors and construction firms new to the industry must understand what exactly retainage is. It is equally important for small contractors and subcontractors to understand the right way to manage the retainage. Reprinted courtesy of Ed Williams, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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United States Supreme Court Upholds Class Action Waivers in Arbitration Agreements

May 24, 2018 — Amy R. Patton, Jason I. Bluver, & Jeffrey K. Brown - Payne & Fears LLP
On May 21, 2018, the United States Supreme Court held, in a 5-4 decision, that arbitration agreements which mandate individualized resolution of claims (as opposed to class or collective resolution) are enforceable under the Federal Arbitration Act ("FAA"). In doing so, the Court rejected the argument that such "class action waivers" violate Section 7 of the National Labor Relations Act ("NLRA"), which generally protects employees' rights to act "in concert" with one another. The Court addressed a split created by decisions from three Federal Circuit Courts of Appeal: Epic Systems Corp v. Lewis (7th Circuit), Ernst & Young v. Morris (9th Circuit) and National Labor Relations Board v. Murphy Oil USA (5th Circuit). All three cases involved employees who sought to bring collective or class actions under the Fair Labor Standards Act (the "FLSA"), and their respective employers who sought to enforce pre-dispute arbitration agreements which waived such collective actions and mandated "one-on-one" arbitration of wage disputes. In support of their position, the employees argued that the class and collective action waivers were illegal because they violated the NLRA's prohibition on barring employees from engaging in "concerted activities." Reprinted courtesy of Payne & Fears LLP attorneys Amy R. Patton, Jason I. Bluver and Jeffrey K. Brown Ms. Patton may be contacted at arp@paynefears.com Mr. Bluver may be contacted at jib@paynefears.com Mr. Brown may be contacted at jkb@paynefears.com Read the court decision
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