Seattle Washington Building Expert Directory

Ninth Circuit Affirms Duty to Defend CERCLA Section 104 (e) Letter

October 10, 2013 — Tred Eyerly — Insurance Law Hawaii
The Ninth Circuit held there is a duty to defend not only a PRP letter issued by the EPA, but also a section 104 (e) letter. Anderson Brothers, Inc. v. St. Paul Fire and Marine Ins. Co., 2013 U.S. App. LEXIS 18156 (9th Cir. Aug. 30, 2013). The insured received two letters from the EPA notifying it of potential liability under CERCLA for environmental contamination of the Portland Harbor Superfund Site. The first letter was received in January 2008, and stated that the EPA sought the insured's cooperation in its investigation of the release of hazardous substances at the site. The letter enclosed an extensive, 82-question "Information Request" seeking information about the insured's current and former activities at the site. The letter informed the insured that its voluntary cooperation was sought, but compliance with the Information Request was required by law and failure to respond could result in an enforcement action and civil penalties of $32,500 per day. The insured tendered the 104 (e) letter to St. Paul and requested a defense and indemnity pursuant to the CGL policy. St. Paul declined to provide a defense because the letter did not constitute a "suit," which was required by the policy to trigger the duty to defend. The second letter from the EPA, received in November 2009, was entitled "General Notice Letter for the Portland Superfund Site" and notified the insured that it was a "potentially responsible party ("PRP"). Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

NTSB Outlines Pittsburgh Bridge Structure Specifics, Finding Collapse Cause Will Take Months

February 21, 2022 — Tom Ichniowski - Engineering News-Record
Officials in Pennsylvania are moving forward on building a replacement for the Fern Hollow Bridge in Pittsburgh, which collapsed on Jan. 28, selecting a team of HDR Inc. and Swank Construction to design and construct the new structure, and the approval of $25.3 million in federal funds for the project. Reprinted courtesy of Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... 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

Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court

June 21, 2021 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In the recent case of 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 Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.” 5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

Construction Companies Must Prepare for a Surge of Third-Party Contractors

February 08, 2021 — Kim Holly - Construction Executive
Economists agree that the trajectory of the current recession has been different from any other. Looking back at the 2008 economic crisis, there are noticeable trends in the construction space that indicate a surge in third-party contractor hiring could be coming in 2021. The demand for more contract work will come as no surprise for seasoned construction executives—the share of contractors at U.S. businesses has increased by 15% in the last decade. Contractors are a valuable asset in the construction industry, but organizations will need to prepare for the coming influx to ensure third-party contractors and full-time employees are set up for success to keep operations running smoothly. THE CONTRACTOR SURGE BLUEPRINT Managing a substantial influx of contractors on construction worksites can be an overwhelming task. However, with guiding principles in place, construction executives can successfully incorporate more contractors into their operations and effectively manage associated risks. Reprinted courtesy of Kim Holly, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Breach of an Oral Contract and Unjust Enrichment and Implied Covenant of Good Faith and Fair Dealing

December 23, 2023 — David Adelstein - Florida Construction Legal Updates
In an ideal world, parties would have written contracts. In reality, parties should endeavor to ensure every transaction they enter into is memorialized in a written contract. This should not be disputed. Of course, written contracts are not always the case. Parties enter transactions too often whereby the transaction is not memorialized in a clean written agreement. Rather, it is piecemealing invoices, or texts, or discussions, or proposals and the course of business. A contract can still exist in this context but it is likely an oral contract. Keep in mind if there is a dispute, what you think the oral contract says will invariably be different than what the other party believes the oral contract says. This “he said she said” scenario gets removed, for the most part, with a written contract that memorializes the written terms, conditions, and scope. A recent federal district court opinion dealt with the alleged breach of an oral contract. In Movie Prop Rentals LLC vs. The Kingdom of God Global Church, 2023 WL 8275922 (S.D.Fla. 2023), a dispute concerned the fabrication and installation of a complex, modular stage prop to be used for an event. But here lies the problem. The dispute was based on an oral contract and invoices. The plaintiff, the party that was fabricating the modular stage prop, sued the defendant, the party that ordered the stage prop for the event, for non-payment under various claims. The defendant countersued under various claims. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Triggering Duty to Advance Costs Same Standard as Duty to Defend

April 11, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Interpreting Hawaii law, the federal district court held that the standard for triggering the duty to defend is the same as the standard for the duty to advance costs under a D&O policy. Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2018 U.S. Dist. LEXIS 56949 (D. Haw. April 3, 2018). The underlying plaintiffs sued 22 defendants, including Maui Land Pineapple (MLP) and Ryan L. Churchill, concerning a residential development project known as The Ritz-Carlton Club & Residences. The underlying complaint alleged that MLP "directly or indirectly through wholly owned subsidiaries exerts control" over Kapalua Bay, LLC, the defendant in the underlying lawsuit. Kapalua Bay, LLC was created as a joint venture of which MLP held 51%. Churchill was a senior executive officer of MLP, President of Kapalua Bay, and an executive officer of Kapalua Realty, which participated in all aspects of the Project, such as financing, development, and construction. In their second amended complaint, the underlying plaintiffs alleged nine Counts against the defendants, including breach of fiduciary duty. It was alleged that defendants were not transparent and kept owners in the dark regarding the status of the project. Several allegations named Churchill individually and described his alleged material misrepresentations to the underlying plaintiffs regarding the project's financing. 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

Dear Engineer: Has your insurer issued a “Reservation of Rights” letter? (law note)

April 20, 2017 — Melissa Dewey Brumback - Construction Law in North Carolina
In my previous post, I made reference to getting a “Reservation of Rights” letter. I noted that the carrier may decide to defend you under a Reservation of Rights (i.e., hire your lawyer) but may not, necessarily, accept the responsibility for paying the claim. Does this mean that the insurance company has denied your claim, or will never pay? No. Reservation of Rights (ROR) letters are sent for a variety of reasons- most notably, when some portion of the construction lawsuit against you is not covered under your E&O policy. The letter must state the reason(s) that the ROR is being issued. With the ROR, the insurance company is telling you that it reserves the right to withdraw from your defense and/or deny payment of damages at a later date, depending upon how facts in the case develop. The notice is intended to let you know that there *may* be issues later, and to put you notice that you have the right to hire your own lawyer (at your own expense) to protect yourself from that future potential risk. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

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