Seattle Washington Building Expert Directory

Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits

August 10, 2020 — Christine Kroupa, John Palmeri & Katelyn Werner - Gordon & Rees
Despite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met. The Bill: On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:

The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
The information is not available to the insurer without the assistance of the insured;
The written request provides the insured 60 days to respond;
The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
The insurer gives the insured an opportunity to cure, which must:

Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.

Reprinted courtesy of Gordon & Rees attorneys Christine Kroupa, John Palmeri and Katelyn Werner Ms. Kroupa may be contacted at ckroupa@grsm.com Mr. Palmeri may be contacted at jpalmeri@grsm.com Ms. Werner may be contacted at kwerner@grsm.com Read the court decision
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Revisiting OSHA’s Controlling Employer Policy

December 21, 2017 — Wally Zimolong - Zimolong LLC
The United States Court of Appeals for the 5th Circuit has been asked to review OSHA’s twenty year old “controlling employer” policy. As many contractors are surprised to learn, under OSHA’s controlling employer policy, you can be given an OSHA citation even when your own employee is not exposed to the alleged hazard. A. The Controlling Employer Policy OSHA’s current controlling employer policy has been effective since 1999. That policy applies to multi-employer worksites, which means virtually all construction sites. Under the policy, OSHA can cite the creating, exposing, correcting, or controlling employer. A creating employer is one who creates the hazard to which workers are exposed. The exposing employer is one who permits his employees to be exposed to the hazard, whether it created the hazard or not. The correcting employer is one who is responsible with correcting known hazards. Finally, the controlling employer is one “who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” Most general contractors and CM’s are controlling employers. Under OSHA’s policy, a contractor’s OSHA safety obligations hinges on whether it is a creating, exposing, correcting, or controlling employer. The creating, exposing, and correcting contractors obligations are fairly straightforward. However, the controlling contractors obligations are more nuisanced. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Condo Owners Suing Bank for Failing to Disclose Defects

January 17, 2014 — Beverley BevenFlorez-CDJ STAFF
The Option Owners Association Inc., Condo Owners in Lincoln, Nebraska, filed suit against Security First Bank, “alleging the bank failed to disclose ‘hidden defects,’” reported the Lincoln Journal Star. Alleged defects include defective siding, improperly installed siding, and defective flashing. The condo owners are seeking at least $644,000 which they claim is the “fair market value of the repairs needed to fix the alleged construction defects.” When the Lincoln Journal Star asked Jim Wefso, general counsel for Security First Bank, to comment, he stated, “The bank doesn't feel it has any liability in the case.” Read the court decision
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California to Require Disclosure of Construction Defect Claims

October 30, 2013 — CDJ STAFF
California Governor Jerry Brown has signed Senate Bill 625. Starting in July 2014, anyone who sells a home will have to disclose all claims made of construction defects and the status of these claims. Read the court decision
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UK Court Rules Against Bechtel in High-Speed Rail Contract Dispute

March 29, 2021 — Peter Reina - Engineering News-Record
The U.K. subsidiary of Bechtel Inc. has lost its legal challenge against the owner of the U.K. London-Birmingham high-speed railroad project, HS2, over its failed bid for a roughly $140-million Construction Partner (CP) contract in early 2019. Reprinted courtesy of Peter Reina, Engineering News-Record Mr. Reina may be contacted at reina@btinternet.com Read the full story... Read the court decision
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Mortgage Battle Flares as U.K. Homebuying Loses Allure

January 28, 2015 — Neil Callanan and Richard Partington – Bloomberg
U.K. banks, which spent six years repairing their balance sheets after the 2008 property crash, want to advance more credit to homebuyers. Borrowers aren’t as enthusiastic. Cheap funding costs and low default rates have made homebuyers attractive to lenders in recent years, boosting returns for companies such as Nationwide Building Society and Lloyds Banking Group Plc. (LLOY) Now, with demand for property cooling, they’re having to fight harder for business. Interest rates on the most popular mortgages fell to record lows in December, according to the Bank of England. Mr. Callanan may be contacted at ncallanan@bloomberg.net; Mr. Partington may be contacted at rpartington@bloomberg.net Read the court decision
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Reprinted courtesy of Neil Callanan and Richard Partington, Bloomberg

Insured's Jury Verdict Reversed After Improper Trial Tactics

October 09, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed a jury verdict for the insured due to improper trial tactics by his attorney. Homeowners Choice Property and Cas. Ins. Co., Inc. v. Kuwas, 2018 Fla. Ct. App. LEXIS 9500 (Fla. Ct. App. July 5, 2018). The insured sued Homeowners Choice (HCI) alleging breach of contract due to a denial of coverage for property damage as a result of water loss. During the trial, HCI raised objections to various questions posed by the insured's counsel during the testimony of HCI's litigation manager, as well as various closing arguments made by the insured. The jury entered a verdict for the insured for a substantial sum. HCI appealed. 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

Federal Arbitration Act Preempts Pennsylvania Payment Act

June 15, 2020 — Wally Zimolong - Supplemental Conditions
I am back. It feels like an entirety since I last posted. But a hellacious trial schedule got me off the blogosphere for some time. Plus, there was nothing to write about. But I am back with a bang thanks to a decision from the Eastern District of Pennsylvania concerning the interplay of a forum selection clause appearing in an arbitration clause in a construction contract and the Pennsylvania Contractor and Subcontractor Payment Act. In Bauguess Electrical Services, Inc. v. Hospitality Builders, Inc., the federal court (Judge Joyner) ruled that the federal arbitration act preempted the Payment Act’s prohibition on forum selection clauses and held that an arbitration must proceed in South Dakota even though the construction project were the work was performed was located in Pennsylvania. The Payment Act applies to all commercial construction projects performed in Pennsylvania. As some you might know, Section 514 of the Payment Act, 73 P.S. 514, prohibits choice of law and forum selection clauses. It states “[m]aking a contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state, shall be unenforceable.” Therefore, if a construction contract is for a project located in Pennsylvania, Pennsylvania law must apply and all disputes must be adjudicated in Pennsylvania. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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