Seattle Washington Construction Expert Witness Directory

Milwaukee's 25-Story Ascent Stacks Up as Tall Timber Role Model

January 25, 2021 — Nadine M. Post - Engineering News-Record
In January 2019, Preston Cole left his post as Commissioner of the Milwaukee Dept. of Neighborhood Services and became Secretary of Wisconsin’s Dept. of Natural Resources. It was a step up for the 25-year veteran of public service—a forester by profession—who as the city’s top building official had reformed DNS by fostering a developer-friendly environment. Reprinted courtesy of Nadine M. Post, Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the full story... Read the court decision
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California Court of Appeal Vacates $30M Non-Economic Damages Award Due to Failure to Properly Apportion Liability and Attorney Misconduct During Closing Argument

February 08, 2021 — Krsto Mijanovic, Peter A. Dubrawski, Arezoo Jamshidi & Catherine M. Asuncion - Haight Brown & Bonesteel LLP
On January 20, 2021, the California Court of Appeal, Second District, Division Six (Ventura), in Plascencia v. Deese (B299142), vacated a $30 million non-economic damages award in a highway fatality case because: (1) the award did not properly apportion non-economic damages among everyone at fault in violation of Proposition 51; and (2) the amount of the award appeared to have been influenced by plaintiffs’ counsel’s misconduct and prejudicial remarks during closing argument. In Plascencia, the plaintiffs sued several defendants for the wrongful death of their daughter arising from a highway fatality accident. All the defendants settled or were dismissed before trial except the trucking defendants. The highway fatality was caused when one defendant driver made an illegal U-turn on a highway as she left another defendant’s fruit stand. The plaintiffs’ daughter swerved to avoid the U-turn driver, lost control of her car, and crashed into the back of the trucking defendants’ diesel tractor-trailer. The truck driver had parked the truck on the side of the highway near the fruit stand, which the trucking defendants’ expert conceded fell below the standard of care. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel LLP, Peter A. Dubrawski, Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Haight Brown & Bonesteel LLP and Catherine M. Asuncion, Haight Brown & Bonesteel LLP Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Ms. Asuncion may be contacted at casuncion@hbblaw.com Read the court decision
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Best Practices for ESI Collection in Construction Litigation

October 05, 2020 — Kelley J. Halliburton - Construction Executive
The construction business has always been heavy on records and data but now more than ever much of that information is stored electronically. Gone are the days of just a trailer full of drawings and paper documents. Construction projects now have huge amounts of electronically stored information (ESI) including contract documents; drawings in both CAD, PDF and other formats; schedule files such as Primavera; spreadsheets; photos; job cost control software files; formal correspondence; and an ever-expanding amount of email communications. Successful collection of this ESI can be critical to the success of litigation in construction cases, where often very complex facts will need to be gathered to support a claim or defense. The best first step to a successful ESI collection is to build a solid foundation before trouble arises with prepared policies and procedures in place. Implementing and enforcing a document management plan on a project basis will make sure documents are kept in an organized fashion so that materials can be accessed quickly and easily. Document management is important for types of ESI that are not handled well by word-searches, including Primavera schedules, photos and videos. Reprinted courtesy of Kelley J. Halliburton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Don’t Do this When it Comes to Construction Liens

September 07, 2020 — David Adelstein - Florida Construction Legal Updates
When it comes to preparing and recording a construction lien, this case is an example of what NOT TO DO! I mean it — this exemplifies what NOT TO DO! It is also a case study of why a party should always work with counsel in preparing a construction lien so that you can avoid the outcome in this case–your lien being deemed fraudulent. In Witters Contracting Company v. West, 2020 WL 4030845 (Fla. 2d DCA 2020), homeowners hired a contractor to renovate their home under a cost-plus arrangement where the contractor was entitled to a 10% fee on construction costs. The contract also required extra work to be agreed in writing between the owner and contractor. During construction a dispute arose. The contractor texted the owner that it will cancel the permit and record a $100,000 construction lien if the owner did not pay it $30,000. Shortly thereafter, the contractor’s counsel sent the homeowners a demand for $59,706 with back-up documentation. Less than a week later, the contractor recorded a construction lien for $75,000. The owners initiated a lawsuit against the contractor that included a claim for fraudulent lien. The contractor then amended its construction lien for $87,239. 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

Prospective Additional Insureds May Be Obligated to Arbitrate Coverage Disputes

September 07, 2020 — Danielle S. Ward - Balestreri Potocki & Holmes
The Court of Appeal closed out 2019 by ruling that an additional insured can be bound to the arbitration clause in a policy when a coverage dispute arises between that additional insured and the carrier. (Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal. App. 5th 834, 837.) In 2009, Future Farmers of America (“Future Farmers”) entered into a license agreement with SMG Holdings Incorporated (“SMG”) to use the Fresno Convention Center. As part of the agreement, Future Farmers was required to secure comprehensive general liability (“CGL”) coverage and name SMG and the City of Fresno as additional insureds (“AI”) on its policies. Future Farmers purchased a general liability policy from Plaintiff Philadelphia Indemnity Insurance Company (“Philadelphia”). Neither SMG nor the City of Fresno were added as AIs, but the policy contained a “deluxe endorsement” which extended coverage to lessors of premises for “liability arising out of the ownership, maintenance or use of that part of the premises leased or rented” to the named insured. The policy also contained an endorsement that extended coverage where required by a written contract for liability due to the negligence of the named insured. Philadelphia’s policy also stated that if the insurance company and insured “do not agree whether coverage is provided . . . for a claim made against the insured, then either party may make a written demand for arbitration.” A patron to Future Farmer’s event at the Fresno Convention Center was seriously injured after he tripped over a pothole in the parking lot and hit his head. He sued both Fresno and SMG. In turn, Fresno and SMG tendered their defense to Philadelphia. Philadelphia denied coverage finding that the incident did not arise out of Future Farmer’s negligence, and that SMG had the sole responsibility for maintaining the parking lot. Consequently, Philadelphia concluded that neither Fresno nor SMG qualified “as an additional insured under the policy” for the injury in the parking lot. The coverage dispute continued, and in 2016, Philadelphia issued a demand for arbitration which was rejected by SMG. Philadelphia then petitioned the state court to compel arbitration arguing that SMG could not avoid the burdens of the policy while seeking to obtain policy benefits. SMG used Philadelphia’s conclusion that it did not qualify as an AI under the policy to argue that Philadelphia was “estopped from demanding arbitration”. In other words, SMG argued that it could not be held to the burdens of the policy without being provided with the benefits of the policy. The trial court sided with SMG finding that there was no arbitration agreement between the parties. The court noted that while third party beneficiaries can be compelled to arbitration there was no evidence that applied here, and Philadelphia could not maintain its inconsistent positions on the policy as its respects SMG. Disagreeing with the trial court, the Court of Appeal concluded that SMG was a third-party beneficiary of the policy. The AI obligations in the license agreement and the deluxe endorsement in the Philadelphia policy collectively establish an intended beneficiary status. The Court saw SMG’s tender to Philadelphia as an acknowledgement of that status. Relatedly, the Court found that SMG’s tender to Philadelphia – its demand for policy benefits – equitably estopped them from avoiding the burdens of the policy. The Court stated it defied logic to require a named insured to arbitrate coverage disputes but free an unnamed insured demanding policy coverage from the same requirement. Conversely, the Court found no inconsistency in Philadelphia’s denial of coverage to SMG and its subsequent demand for arbitration. Philadelphia did not outright reject SMG’s status as a potential insured, but rather concluded that there was no coverage because the injury occurred in the parking lot. In other words, the coverage determination turned on the circumstances of the injury not SMG’s status under the policy. In short, the Court concluded that the potential insured takes the good with the bad. If one seeks to claim coverage as an additional insured, they can be subject to the restrictions of the policy including arbitration clauses even if they did not purchase the policy. Securing additional insurance has become increasingly more difficult and limited over the years, and this holding presents yet another hurdle to attaining AI coverage. For those seeking coverage, it is important to note that the Court’s ruling may have turned out differently had the carrier outright denied SMG’s AI status, rather than concluding that the injury was not covered. Your insurance scenario may vary from the case discussed above. Please contact legal counsel before making any decisions. BPH’s attorneys can be reached via email to answer your questions. Read the court decision
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Reprinted courtesy of Danielle S. Ward, Balestreri Potocki & Holmes
Ms. Ward may be contacted at dward@bph-law.com

Update – Property Owner’s Defense Goes up in Smoke in Careless Smoking Case

September 21, 2020 — Michael J. Ciamaichelo - The Subrogation Strategist
Property owners owe a duty of reasonable care to avoid causing harm to neighboring properties. In Steamfitters Local Union No. 602 v. Erie Ins. Exch., 2020 Md. LEXIS 347 (July 27, 2020) (Steamfitters Local), a matter originally discussed in a June 2019 blog post, the Court of Appeals of Maryland affirmed that, where the property owner knows or should have known that people are habitually discarding hundreds of cigarette butts into a mulch bed along the boundary of the neighboring property, the property owner owes a duty to its neighbors to prevent the risk of fire. As discussed in Steamfitters Local, a fire originated in a strip of mulch at property owned by the Steamfitters Local Union No. 602 (Union) and caused damage to neighboring properties. The fire occurred when an unknown person discarded a cigarette butt into the mulch. Following the fire, investigators found hundreds of cigarette butts in the mulch where the fire originated. A representative for the Union acknowledged that there were more butts in the mulch “than there should have been” and that, “[i]n the right situation,” a carelessly discarded cigarette could cause a fire. The Union, however, had no rules or signs to prohibit or regulate smoking at the property, where apprentices would often gather prior to class. The insurance companies for the damaged neighbors filed subrogation actions alleging that the Union, as the property owner, failed to use reasonable care to prevent a foreseeable fire. A jury found in favor of the subrogating insurers and the defendants appealed. Read the court decision
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Reprinted courtesy of Michael J. Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

Proximity Trace Used to Monitor, Maintain Social Distancing on $1.9-Billion KCI Airport Project

September 07, 2020 — Jeff Yoders - Engineering News-Record
In order to maintain social distancing on site, steel erector National Steel City of Plymouth, Mich., is using the Proximity Trace wearable sensor from Triax Technologies on the $1.9-billion Kansas City International Airport (KCI) single-terminal reconstruction project. Jeff Yoders, Engineering News-Record Mr. Yoders may be contacted at yodersj@enr.com Read the full story... Read the court decision
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First-Party Statutory Bad Faith – 60 Days to Cure Means 60 Days to Cure

October 19, 2020 — David Adelstein - Florida Construction Legal Updates
In a first party bad-faith lawsuit, such as a bad faith claim against an insured’s property insurer, there are three requirements that must be met before the bad faith lawsuit is filed: “‘(1) determination of the insurer’s liability for coverage; (2) determination of the extent of the insured’s damages; and (3) the required notice must be filed under section 624.155(3)(a).’” Fortune v. First Protective Ins. Co., 45 Fla. L. Weekly D2092a (Fla. 2d DCA 2020) (citation omitted). The third requirement is for the insured to file a Civil Remedy Notice (known as a “CRN”) as a condition precedent to filing a statutory bad faith lawsuit giving the insurer 60 days’ notice of the bad faith violation and to cure the violation, i.e., pay the claim if the violation is payment. A very common bad faith payment violation is the assertion that the insurer did NOT attempt “in good faith to settle claims when, under the circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for his or her interests.” Fla. Stat. s. 624.155(1)(b)(1). 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

SEATTLE WASHINGTON CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES