SEATTLE WASHINGTON CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Appraisal Panel Can Determine Causation of Loss under Ohio Law

February 19, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the insured's motion to compel an appraisal that would include a determination of causation of the loss. Eagle Highland Owners Association v. State Farm Fire and Casualty Co., 2023 U.S. Dist. LEXIS 220937 (S.D. Ohio Dec. 12, 2023). Plaintiff argued its property suffered wind and hail damage from a storm on June 18, 2021. A claim was submitted to State Farm. State Farm's investigation determined the loss to be $0.00. Plaintiff's investigator determined the loss to be $586,647.08 in repair costs. State Farm opposed appraisal because, in its view, the damage arose from a loss in 2019, not from the June 18, 2021 storm. Plaintiff submitted a loss claim in 2019 for damage that State Farm alleged was exactly the same as the damage alleged in the loss claim for the June 18, 2021 storm. Therefore, State Farm did not view the matter as a dispute over an amount of loss, but rather over whether a loss even occurred on June 18, 2021. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Contractor Prevails in Part Against CalOSHA in Valley Fever Case

February 26, 2024 — Garret Murai - California Construction Law Blog
Fever. Specifically, Valley fever. Caused by the fungus Coccidioides. It lives in the top two to 12 inches of soil, can become airborne when the soil is exposed, and can cause respiratory illness and even death. And apparently, it is present in many parts of California particularly in the Central Valley and along the coast. Who knew? In Granite Construction Company v. Occupational Safety and Health Appeals Board, Case No. C086704 (2023), contractor Granite Construction was cited by CalOSHA for exposing its employees to Coccidioides at a large solar power plant known as California Flats Solar Project in Monterey California. The 3rd District Court of Appeal reversed in part. It should be noted that this case originally unpublished, it was then published, and then later depublished, so it should not be relied on for precedential value. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

---

CGL Policy May Not Cover Cybersecurity and Data-Related Losses

March 25, 2024 — Susana Arce - Saxe Doernberger & Vita, P.C.
The construction industry, like many other industries, has experienced an increased reliance on, and implementation of, technology in the past few years. Smart phones and tablets are used on most project sites, computers are an integral part of the planning process, and various software programs are used throughout the construction process. Likewise, much of the machinery and equipment used during construction (e.g., total stations, trucks, tower cranes) is interconnected, and in some cases, operated or monitored remotely.1 With an increase in technology comes a risk of cybersecurity and data-related losses. Many large businesses purchase Commercial General Liability (“CGL”) insurance and assume cybersecurity and data-related losses are covered. Unfortunately, this is generally not the case. CGL policies typically cover three general types of damage: bodily injury, property damage, and advertising injury. Read the full story...
Reprinted courtesy of Susana Arce, Saxe Doernberger & Vita, P.C.
Ms. Arce may be contacted at SArce@sdvlaw.com

---

Construction Litigation Roundup: “Indeed, You Just Design ‘Em”

April 29, 2024 — Daniel Lund III - Lexology
Seeking to be extracted from personal injury litigation initiated by a laborer on a project in New Orleans, an architect sued for negligence filed a motion for summary judgment. The plaintiff had “testified in his deposition that after demolishing most of one of the side walls of the vault and a smaller section of the front wall, he was instructed to stand on top of the vault's concrete ceiling in order to demolish it with a hydraulic jackhammer.” One court noted that: “Shortly after beginning that task, the entire vault structure collapsed.” Claims against the architect included assertions of “failure to monitor and supervise the execution of the plans to ensure safety at the jobsite.” The architect urged in support of its MSJ that it did not owe a duty to oversee, supervise, or maintain the construction site, or have any responsibility for the plaintiff’s safety. Summary judgment was granted to the architect by the trial court, and an appeal ensued, whereupon the appellate court reversed. That intermediate court found that potential intervening knowledge of the architect of a potentially unsafe demolition practice created an issue of material fact. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

---

GOP, States, Industry Challenge EPA Project Water Impact Rule

January 02, 2024 — Pam McFarland - Engineering News-Record
Days after the Biden administration rule reinstated state authority under the U.S. Clean Water Act to delay or deny construction permits on projects with water quality impacts, attorneys general from 11 Republican-led states, along with the American Petroleum Association, National Hydropower Association and Interstate Natural Gas Association of America, filed suit in federal court. Reprinted courtesy of Pam McFarland, Engineering News-Record Ms. McFarland may be contacted at mcfarlandp@enr.com Read the full story...

---

The Word “Estimate” in a Contract Matters as to a Completion Date

February 12, 2024 — David Adelstein - Florida Construction Legal Updates
Language in a contract matters. The word “estimates” or “estimated” matters particularly when it comes to a date certain such as a substantial completion or completion date. Remember this. Here is an example. In Parque Towers Developers, LLC v. Pilac Management, Ltd., 49 Fla.L.Weekly D190a (Fla. 3d DCA 2024), a trial court held that the developer did not complete the construction of five condominium units by the date in the purchase agreements. The developer appealed because “[t]he agreements contain no date certain for the completion of the units, but rather include a clause that ‘Seller estimates it will substantially complete construction of the Unit, in the manner specified in this Agreement, by December 31, 2017, subject to extensions resulting from ‘Force Majeure (the ‘Outside Date’).’” Parque Towers, supra. Another provision in the purchase agreements stated, “[w]henver this Agreement requires Seller to complete or substantially complete any item of construction, that item will be understood to be complete or substantially complete when so completed or substantially completed in Seller’s opinion. Id. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---

Best Practices: Commercial Lockouts in Arizona

March 19, 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.

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

---

Res Judicata Not Apply to Bar Overlapping Damages in Separate Suits Against Contractor and Subcontractor

November 06, 2023 — David Adelstein - Florida Construction Legal Updates
Can the doctrine of res judicata bar an owner’s claim against the general contractor after the owner also sued and obtained a satisfied judgment against the subcontractor when there are identical, overlapping damages pursued in separate lawsuits. A recent case says, not really. In Pickell v. Lennar Homes, LLC, 48 Fla.L.Weekly D2037a (Fla. 6th DCA 2023), a homeowner sued a homebuilder and the homebuilder’s mechanical subcontractor in separate lawsuits. The claims and damages asserted in the separate lawsuits were substantially identical. The homeowner obtained a judgment against the mechanical subcontractor which was satisfied (i.e., paid). The homebuilder tried to use this as a get-out-jail-free card and claimed the homeowner was barred from suing it under the doctrine of res judicata based on overlapping claims and damages.

“To successfully assert a defense of res judicata, a party must prove four “identities”: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Pickell, supra (citation omitted).

Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---