New Washington Reserve Study Law

Posted on April 19, 2008 by Daniel Zimberoff

Condominium associations are encouraged to establish reserve fund accounts to pay for major repairs or replacement of common elements. The purpose of a reserve account is to fund components that are in need of repair or replacement within 30 years.

On March 8, 2008, the Washington legislature passed a new law regarding reserve studies for condominiums. The law falls short of what many industry professionals sought, including mandatory reserve funding and studies, but is a step in the right direction. The new law also is silent on maintenance plans, as required in neighboring Oregon and California.

The law, which becomes effective June 12, 2008:

  • Requires a residential condominium association, unless doing so, would impose an unreasonable hardship, to (1) prepare an initial reserve study based upon a visual site inspection conducted by a reserve study professional; (2) update the study annually; and (3) arrange for a visual site inspection every three years by a reserve study professional.
  • Reserve studies must include detailed information on projected expenditures and current reserve account information and must be conducted by a reserve study professional.
  • Encourages, but does not require, a residential condominium association to establish a reserve account, supplemental to the association’s annual operating budget, to fund major maintenance, repair, and replacement of common elements.
  • Requires a condominium Public Offering Statement or Resale Certificate to include a copy of the current reserve study; or (2) a disclosure to the potential buyer stating that the association does not have a reserve study.

The statute does not define "unreasonable hardship."  The law also allows an association to withdraw funds from the reserve account for unforeseen expenses, as long as notice is given to unit owners, and a repayment schedule is set up.

There are other provisions in the statute not covered here. For a complete description of the law, see SB 6215. 
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Record-Breaking Profits for Insurance Companies [Updated 4/11/08]

Posted on April 11, 2008 by Daniel Zimberoff

[The following update includes newly released figures for 2007 and supplements my original entry posted 3/29/08]

I get that lawyer bashing has become a national pasttime and that plaintiff lawyers are as far down on our society’s popularity chart as politicians.   But what I do not understand is how insurance companies--the quintessential example of corporate largess--have rocketed up the chart.

Madison Avenue has done an amazingly effective job transforming large cap insurance companies into friendly, pro-consumer institutions in the eyes of many.

To emphasize my point, think of the three most popular insurance companies?

I bet Geico was one of the first names that came to mind. What image pops up? How about a docile animated gecko that speaks in a British accent? Or what about PEMCO Insurance, you know, the “We’re a lot like you, Greenlake power walker or blue tarp camper guy.” What about arguably the industry leader for this transformation change, the AFLAC duck?

But strip away the cute computer generated geckos and ducks, and the numbers reveal the truth about the insurance industry.

Fact: For the past three years and continuing into 2008, the insurance industry in America has achieved record-breaking profits. This fact is nearly astounding considering Hurricane Katrina occurred in 2005.

The numbers:

  • 2005: $43.0 Billion profit (Source: Insurance information institute [insurance industry trade group])  
  • 2006: $63.7 Billion profit (Source: Insurance Information Institute)
  • 2007: $61.9 Billion profit (Source: Insurance Informaiton Institute) 
  • 2008 projected: "Analysts expect the industry’s profitability to continue in 2008. . .The ratio of losses and expenses to premiums for 2008 is projected to be 97.3, a deterioration from an estimated 93.8 in 2007. The 93.8 estimate for 2007, if accurate, would represent one of the top 12 best underwriting performances over the 88-year period beginning in 1920." (Source: Insurance Information Institute)

In light of these record-breaking profits, the insurance companies are paying out less and less in claims against builders and developers.  Wthin the past twelve months alone, several of our homeowner association construction defect clients with multi-million dollar claims are facing zero contribution from insurance, as the insurers have included stringent exclusions to policies, including no payment for losses involving “condominium” or “multi-family residential” construction.

Several of the developers and contractors allegedly did not realize they were without insurance on their construction projects.  The developers and contractors obtained CGL policies and paid CGL premiums, but when it came time for the insurance companies to indemnify the insureds for the losses, sued the policy holders in declaratory judgment actions to avoid payment.

As a result , homeowners are left holding the bag on multi-million dollar repairs with no source of recovery because builders have created single-asset LLCs and distributed all income after the project was sold, and less and less insurance is available.  This shift has occurred in the context of insurance companies obtainng record profits.

One possible answer to the current disparity in loss and recovery in Washington is through the Condominium Qualified Warranty program created by the Washington legislature in 2004. RCW 64.35, et seq. 

Under the program, there is a two-year materials and labor warranty, a five-year building envelope warranty and a ten-year structural defects warranty. The program allows an award of reasonable attorneys' fees to the substantially prevailing party, yet in no event may such fees exceed the reasonable hourly value of the attorney's work. This provision should appease the lawyer-bashing critics.  Surprisingly, no insurers have funded the warranty program.  One can only speculate the lack of participation by insurers has everything to do with cutting into their bottom lines. 

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