Seattle Washington Expert Witness Engineer Directory

Request for Stay Denied in Dispute Over Coverage for Volcano Damage

August 10, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Although there were concurrent state and federal proceedings regarding the insureds' claims for damage caused by Kilauea Volcano, the federal district court refused to dismiss or stay the federal action. Aqulina v Certain Underwriters at Lloyd's Syndicate #2003, 2020 U.S. District Ct. LEXIS 101832 (D. Haw. June 10, 2020). Plaintiffs held homeowner's policies from Lloyd's that were brokered and underwritten by various defendants. Coverage from the May 2018 eruption of Kilauea Volcano was denied based upon an exclusion precluding coverage for lava-related damage. Plaintiffs sued Lloyds and various brokers in federal court, alleging that defendants had engaged in a deceptive scheme to defraud plaintiffs and deprive them of meaningful coverage. Lawsuits were also filed in state court, with plaintiffs arguing their losses were covered by their policies and that defendants wrongfully relied solely on the lava exclusion to deny claims. 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

Changes to Va. Code Section 43-13: Another Arrow in a Subcontractor’s Quiver

November 02, 2020 — Christopher G. Hill - Construction Law Musings
As is always the case here in Virginia, our General Assembly has made some legislative changes that affect construction contracting. One of these changes is an amendment to Va. Code 43-13 found in the mechanic’s lien section of the Virginia Code. This section of the code has always required that any money paid to a contractor must first go toward paying its subcontractors, suppliers and laborers prior to being used for any other purpose. Prior to 2020, the only remedy for violaiton of Va. Code 43-13 was to go to the local Commonwealth’s Attorney and request a prosecution of the wrongdoer. For various reasons, including that such action did not get the subcontractor or supplier that remained unpaid under this section paid, this remedy was not often pursued except in the most egrigious cases. A key change in the statute occurred during the 2020 legislative session states as follows:

Any breach or violation of this section may give rise to a civil cause of action for a party in contract with the general contractor or subcontractor, as appropriate; however, this right does not affect a contractor’s or subcontractor’s right to withhold payment for failure to properly perform labor or furnish materials on the project. Any contract or subcontract provision that allows a contracting party to withhold funds due under one contract or subcontract for alleged claims or damages due on another contract or subcontract is void as against public policy.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Construction Contracts Need Amending Post COVID-19 Shutdowns

October 19, 2020 — Richard P. Higgins - Construction Executive
No one could have expected the coronavirus pandemic in the beginning of 2020. True, there were rumblings about a sickness in China that was highly contagious and infecting many people. Death tolls began rising as the world watched in disbelieve. After all, this is 2020. This is not supposed to happen. We should have been able to control the spread of the virus, but we could not. COVID-19 quickly spread throughout the world causing havoc and economic despair. While some sectors of the construction industry are not as impacted as others, contractors industry-wide need to consider how COVID-19 will impact their contractual obligations. Depending on what happens and what the government decides to do to stop the spread of the coronavirus, project delays, supply chain distributions, lost productivity and work stoppages may continue for months. All of this will impact the contracts that contractors have with owners. Contractors may not be able to preform according to the terms of the contract through no fault of their own. Owners may no longer qualify for the financing needed to pay for the project. FORCE MAJEURE According to Investopedia, “force majeure refers to a clause that is included in contracts to remove liability for natural and unavoidable catastrophes that interrupt the expected course of events and prevent participants from fulfilling obligations.” Reprinted courtesy of Richard P. Higgins, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Higgins may be contacted at Richard.Higgins@MCC-CPAs.com

Litigation Privilege Saves the Day for Mechanic’s Liens

November 23, 2020 — Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & Bonesteel
In RGC Gaslamp v. Ehmcke Sheet Metal Co., the Fourth Appellate District held that a trial court properly granted an anti-SLAPP motion because the recording of a mechanic’s lien is protected by the litigation privilege. In RGC Gaslamp, subcontractor Ehmcke Sheet Metal Company (“Ehmcke”) recorded a mechanic’s lien to recoup payment due for sheet metal fabrication and installation done at a luxury hotel project in downtown San Diego. Project owner RGC Gaslamp, LLC (“RGC”) recorded a release bond for the lien. Thereafter, Ehmcke recorded three successive mechanic’s liens identical to the first, prompting RGC to sue it for quiet title, slander of title, and declaratory and injunctive relief. After retaining California counsel, Ehmcke then released its liens and advised it did not intend to record any more. Ehmcke then filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc. § 425.16.) which was granted. Reprinted courtesy of Stephen M. Tye, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Mr. Tye may be contacted at stye@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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You Have Choices (Litigation Versus Mediation)

December 14, 2020 — Christopher G. Hill - Construction Law Musings
As I sit here thinking about an impending trial in the Goochland County General District Court, it hit me that I also serve as a mediator in that court from time to time. Coincidentally, I will be “wearing both hats” (litigator and mediator) this week on back to back days. It will be interesting to have to switch roles so quickly on back to back days. While I don’t have the results of this thought experiment as I sit here typing this post, the timeline does bring into focus the two possible avenues to resolve a dispute. Neither is perfect and either works in the proper situation. Both lend a final “result” and closure to the dispute, they just each do so in a different manner and with a different role for me, the construction attorney/construction mediator. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

New Report Reveals Heavy Civil Construction Less Impacted by COVID-19 Than Commercial Construction

August 31, 2020 — Dodge Data and Analytics - Construction Executive
Heavy civil construction is deemed essential to the economy and has continued in many jurisdictions throughout the economic shutdown. However, data from The Civil Quarterly (TCQ), a new publication from Dodge Data & Analytics, reveals contractors in this sector are facing supply chain issues and other challenges in keeping jobsites going. The Civil Quarterly (TCQ) is the result of a partnership with Founding partner Infotech, Platinum partner Leica Geosystems and Gold partners Command Alkon and Digital Construction Works, and is based on original research collected quarterly from civil contractors and engineers. The research provides a snapshot of the current business health of contractors operating in this dynamic environment. The inaugural report features research on how technology is transforming civil jobsites and on the prevalence of important safety practices, and future issues will continue to offer insights into key trends that are transforming the sector. Ninety-nine contractors responded to the survey conducted online from mid-April to mid-May 2020. Reprinted courtesy of Dodge Data and Analytics, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. To learn more about Dodge Data and Analytics, visit www.construction.com Read the court decision
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Georgia Court of Appeals Upholds Denial of Coverage Because Insurance Broker Lacked Agency to Accept Premium Payment

December 07, 2020 — Lawrence J. Bracken II, Michael S. Levine & Rachel E. Hudgins - Hunton Insurance Recovery Blog
In American Reliable Insurance Company v. Lancaster, the Georgia Court of Appeals reversed the denial of a property insurer’s summary judgment motion concerning the insurer’s denial of a fire loss claim. The basis of the denial was that the policyholders had failed to pay the policy premium. The policyholders, Charlie and Wanda Lancaster, claimed that they had paid their policy premiums for several years to their insurance agent, Macie Yawn. In October 2014, American Reliable mailed a renewal notice to the Lancasters notifying them that premium payments had to be made directly to the insurer. After it did not receive payment from the Lancasters, American Reliable sent them a cancellation notice in December 2014, again notifying them that payments be made directly to the insurer. The Lancasters denied having received either notice from American Reliable, but the record included a receipt for certificate of mailing. After the Lancaster’s home burned down in 2015, American Reliable denied coverage on the grounds that the policy had been cancelled for nonpayment of premium. In the subsequent coverage action, the trial court denied American Reliable’s motion for summary judgment, ruling that a factual issue existed as to the actual and apparent agency of the insurance agent, Yawn. On appeal, the Court of Appeals found that the trial court erred in deciding that there was a factual issue concerning Yawn’s agency. Specifically, the Court of Appeals ruled that the record showed American Reliable had terminated Yawn’s agency to accept policy premiums, and that the Lancaster’s received notice of that termination in the renewal and cancellation notices. In addition to determining that Yawn was not an actual agent, the Court held that Yawn did not have apparent agency, because the notices sent to the Lancasters stated that the premium payment was to be paid to American Reliable, not to the agent. Reprinted courtesy of Lawrence J. Bracken II, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Rachel E. Hudgins, Hunton Andrews Kurth Mr. Bracken may be contacted at lbracken@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Hudgins may be contacted at rhudgins@HuntonAK.com Read the court decision
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Is it the End of the Lease-Leaseback Shootouts? Maybe.

September 07, 2020 — Garret Murai - California Construction Law Blog
It’s the case that has turned into a modern day Hatfield versus McCoy – McGee v. Torrance Unified School District, Case No. 8298122, 2nd District Court of Appeals (May 29, 2020) – a series of cases challenging the validity of certain lease-leaseback construction contracts in California. In shootout number one, James McGee sued the Torrance Unified School District challenging the validity of lease-leaseback contracts the District had entered into with general contractor Balfour Beatty Construction, LLC. Under California’s lease-leaseback statute, a school district can lease property it owns to a developer, who in turns builds a school facility on the property and leases the facility back to the school district. The primary benefit of the lease-leaseback method of project delivery is that a school district does not need to come up with money to build the facility because the district pays for the facility over time through lease payments to the developer. In shootout number one, McGee argued that Torrance Unified School District was required to competitively bid the lease-leasebacks projects. The 2nd District Court of Appeals disagreed. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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