SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Pollution Exclusion Prevents Coverage for Injury Caused by Insulation

March 30, 2016 — Tred R. Eyerly – Insurance Law Hawaii
In a per curiam decision, the Fifth Circuit affirmed the district court's holding that the pollution exclusion barred coverage for bodily injury caused by the insured's insulation. Evanston Ins. Co. v. Lapolla Industries, Inc., 2015 U.S. App. LEXIS 22552 (5th Cir. Dec. 23, 2015). The homeowners' contractors installed spray polyurethane foam (SPF) insulation as part of a renovation project in the home. Lapolla manufactured the SPF. Shortly after the insulation was installed, the homeowners smelled strong odors and suffered respiratory distress, causing them to leave the home. The homeowners sued the contractor and various subcontractors for negligence and breach of contract. A third party complaint was filed against Lapolla. The homeowners also amended their complaint to assert a products-liability claim against Lapolla. 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

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Best Practices: Commercial Lockouts in Arizona

April 15, 2024 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

• Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
• Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

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Vegas Hi-Rise Not Earthquake Safe

July 12, 2011 — CDJ STAFF

If an earthquake hit Las Vegas, the Harmon Tower would not withstand it. A report from Weidlinger Associates told MGM Resorts that “in a code-level earthquake, using either the permitted or current code specified loads, it is likely that critical structural members in the tower will fail and become incapable of supporting gravity loads, leading to a partial or complete collapse of the tower.” The inspection came at the request of county officials, according to the article in Forbes.



According to Ronald Lynn, directory of the building division in the county’s development services division, “these deficiencies, in their current state, make the building uninhabitable.” The county is concerned about risks to adjacent buildings.



MGM Resorts is currently in litigation, separate from the stability issues, with Perini Corp., the builders of Harmon Tower.



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Banks Rejected by U.S. High Court on Mortgage Securities Suits

January 12, 2015 — Greg Stohr – Bloomberg
The U.S. Supreme Court dealt a blow to Royal Bank of Scotland Group Plc and Nomura Holdings Inc. (8604), refusing to derail federal government lawsuits that seek billions of dollars over the sale of risky mortgage-backed securities. The justices today turned away an appeal by four banks, including units of RBS and Nomura, in a case stemming from the collapse of two credit unions that owned more than $1.7 billion in those securities. Read the court decision
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Reprinted courtesy of Greg Stohr, Bloomberg
Mr. Stohr may be contacted at gstohr@bloomberg.net

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Pinnacle Controls in Verano

February 21, 2013 — CDJ STAFF
The California Court of Appeals has applied the California Supreme Court’s recent Pinnacle decision to a new case, Verano Condominium Association v. La Cima Development. As in Pinnacle, La Cima sought to compel arbitration of construction defect claims with a homeowners association. The trial court denied La Cima’s attempt to compel arbitration on the grounds that the arbitration agreement was made with the individual homeowners and not the homeowners association. Further, it was determined that the CC&Rs “were unenforceable due to unconscionability.” La Cima appealed, and the appeals court affirmed in part and reversed in part. After Pinnacle, La Cima sought a review. The Supreme Court of California directed the appeals court to vacate their earlier decision and reconsider, based on Pinnacle. The Fourth Circuit Court has concluded that this conflicted with the ruling in Pinnacle. There, as in Verano, homeowners signed agreements that disputes with the developer would be settled through binding arbitration. The appeals court had found for the community association, but on review, the California Supreme Court reversed this decision. The California Court of Appeals had two issue to consider in this review: whether the arbitration provisions applied to the homeowners association, and whether these provisions were unconscionable. The court concluded that “in light of Pinnacle it is clear the arbitration provisions set forth in the Verano CC&Rs constitute a valid agreement to arbitrate.” On the second question, the Verano CC&Rs were described by the court as “materially indistinguishable” from those in the earlier case. As the state Supreme Court found that those were not unconscionable, clearly neither were these. The case was remanded for further proceedings and La Cima is entitled to recover the costs of the appeal. Read the court decision
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Investigators Eye Fiber Optic Work in Deadly Wisconsin Explosion

July 18, 2018 — Jeff Yoders – Engineering News-Record
A hole punched into a 4-in.-dia gas pipeline during fiber-optic line laying is blamed for an explosion that killed a 34-year-old fire captain and injured nine other people, including four firefighters, in downtown Sun Prairie, Wis., on July 10. The injured were treated at nearby hospitals and have since been released. Read the court decision
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Reprinted courtesy of Jeff Yoders, ENR
Mr. Yoders may be contacted at yodersj@enr.com

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Conspirators Bilked Homeowners in Nevada Construction Defect Claims

March 28, 2012 — CDJ STAFF

Courthouse News has a summary of the current lawsuit over a Nevada conspiracy to defraud homeowners by taking control of homeowner boards and then providing inadequate repairs. Homeowners in eight Las Vegas area communities are involved in the suit, which claims that the conspirators purchased units in the communities and then transferred fractional interests to others to allow them to run for HOA board elections. The suit claims that David Amesbury and his firm helped manipulate the elections.



Once homeowner boards were controlled by the conspirators, Nancy Quon, the construction defect attorney whose recent death appears to be by suicide, handled the litigation against homebuilders. She would settle out of court, engaging Silver Lining Construction to “do very minor and superficial repairs” to the homes. The remainder of the money was split by the conspirators. The suit also notes that the construction defect claims were “frivolous,” and?in addition to the negative publicity?caused the homes to lose at least 5% of their value.

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Crisis Averted! Pennsylvania Supreme Court Joins Other Courts in Finding that Covid-19 Presents No Physical Loss or Damage for Businesses

October 21, 2024 — Edward M. Koch & Marc L. Penchansky - White and Williams LLP
Seeking to find some relief from business losses experienced during the COVID-19 pandemic, many businesses turned to their property insurers for coverage for their lost income. A clear national trend emerged among courts deciding the issue, as most businesses could not establish coverage because they had not experienced a “direct physical loss of or damage to their covered property” as required by most policies. While this legal question may have become an afterthought for many attorneys, the question remained an open one in Pennsylvania while the Pennsylvania Supreme Court considered two contradictory holdings issued in the Superior Court on this topic. Compare Macmiles, LLC v. Erie Ins. Exch., 286 A.3d 331 (Pa. Super. 2022) (holding there was no coverage for loss of use of a commercial property unaccompanied by any physical alteration or other physical condition that rendered the property unusable or uninhabitable) with Ungarean v. CNA, 286 A.3d 353 (Pa. Super. 2022) (holding that the policy at issue was ambiguous and therefore the policy covered the insured for COVID-related business losses). Last week, the Supreme Court considered the Superior Court’s holdings in Macmiles and Ungarean and held, at long last, that COVID-19 did not cause a direct physical loss of or damage to covered property. Reprinted courtesy of Edward M. Koch, White and Williams LLP and Marc L. Penchansky, White and Williams LLP Mr. Koch may be contacted at koche@whiteandwilliams.com Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com Read the court decision
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