Category: Construction Claims

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Contracts Are King, But Don’t Forget Tort Law

The construction industry is driven by its memorialization of business terms and legal obligations in written contracts.  However, “tort” law also imposes many implied rights and obligations independent of what parties may have formally agreed to, the foremost of which is to use reasonable care so as to avoid damage to others. In my recent Daily … Continue Reading

Washington Supreme Court Affirms Brightwater Decision Regarding Application of Olympic Steamship to Sureties

On July 6, 2017, the Washington Supreme Court confirmed that the equitable rule announced in Olympic Steamship—providing for attorney fees where the insurer compels the insured to take legal action—applies to performance bond sureties on public projects.[1]  In King County v. Vinci Construction Grands Projects/Parsons RCI/Frontier-Kemper, the Court affirmed the trial court’s award of over … Continue Reading

Think the ADA preempts contractual risk shifting? Not so fast, says the Ninth Circuit.

Rejecting an argument that the ADA preempts all contractual claims for indemnity and contribution, the Ninth Circuit recently upheld a public owner’s right to seek contribution for damages arising out of ADA violations caused by the designer and contractor of a transportation facility. See City of Los Angeles v. AECOM Services, Inc. (here). This decision … Continue Reading

When “Non-Binding” LOIs Become Binding

A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed … Continue Reading

Joint Washington/Oregon Construction Law Seminar – November 4, 2016

On November 4, 2016, my colleague, Andrew Gibson (from the Portland office of Stoel Rives), and I will co-chair a joint OSBA/WSBA construction law CLE, entitled Two States of Construction Law: Working in Both Washington and Oregon, located at the Heathman Lodge in Vancouver, Washington. This seminar will include a panel of knowledgeable lawyers with … Continue Reading

Concerns over California’s Increased Earthquakes? Landlords and Developers Should Manage Their Risks Now

During the last month or two there has been a rise of news reports regarding potential earthquakes in California at a greater magnitude than in recent history:  see here and here.  These risks have even been reported recently in a London newspaper.  While the unusual Southern California “big one” warning is now past, the risk has … Continue Reading

Self-Imposed ADA Audits: The Developer’s Best Option

Recent rulings indicate that courts across the country view project owners’ and developers’ liability for ADA claims differently than they do other compliance violations.  Owners’ attempts to raise questions of contractor negligence, breach of contract or breach of warranty are being rejected.  So what can a project owner do? In my recent article for the … Continue Reading

“All Risk” Coverage Is Not Equal to “All Loss” Coverage Under Customary Provisions in California Builder’s Risk Policies

A common insurance question asked by our owner/developer clients when they discover that their completed project has defects is whether their own insurance will cover the cost to fix the defect or any damage from the defect.  While trying hard not to sound like the proverbial lawyer, we often have to say “it depends.”  What … Continue Reading

Architect Off the Hook for ADA Defects

Continuing a disturbing trend, another recent case finds that an architect is not liable for a design that failed to comply with the ADA and Section 504 of the Rehabilitation Act (RA). In Chicago Housing Authority v. DeStefano & Partners, Ltd. (here), an Illinois appellate court followed several other federal and state decisions in holding … Continue Reading

On Guard: A Look at Subcontractor Default Insurance

Whether you call it SDI or SubGuard, subcontractor default insurance is yet another consideration for public and private project owners as they look at protection from subcontractor default.  But what exactly is this relatively new option and when is it most appropriate?  In my recent article for the Daily Journal of Commerce, I discuss SDI, … Continue Reading

KIRO 7 Interviews Joe McCarthy on Pitfalls of Washington Condo Act – Developers Beware!

Joseph McCarthy, a real estate attorney in Stoel Rives’ Seattle office, was recently interviewed by television station KIRO 7 in Seattle for a segment titled “Law meant to protect Wash. homeowners instead pushing up condo prices.” The piece discusses how the consumer warranties contained in the Washington Condominium Act, found at Chapter 64.34 RCW, fostered … Continue Reading

A New Wrinkle In Time To Claim Construction Defects

Oregon’s law on statutes of limitation and/or repose periods on construction claims is complex and ever-changing.  A recent Oregon Supreme Court ruling has introduced yet another instance of differing time limits on construction defect claims. In my recent article for the Daily Journal of Commerce, I discuss Schell v. The Schollander Companies, Inc. and the … Continue Reading

Court of Appeals affirms Brightwater judgment, reviews law regarding differing site conditions and surety obligations

On November 9, 2015, Division One of the Court of Appeals affirmed a 2012 King County trial court judgment that joint-venture tunneling contractor Vinci Construction Grands Projets/Parsons RCI/Frontier-Kemper (VPFK) was liable to King County for $144 million in damages and attorney fees. The case arose from the Brightwater project, a wastewater treatment plant north of … Continue Reading

Key Aspects of Joint Check Agreements

Joint checks are a useful tool in the construction industry to give owners and prime contractors peace of mind that lower-tier subcontractors or suppliers are being paid and potential lien claims are avoided.  But joint check agreements and the subsequent actions can result in unintended consequences and liability. In my recent article for the Daily … Continue Reading

Take Care in Reaching for Deep Pockets: Don’t Let Insurance Companies Off the Hook When Drafting Settlement Agreements in Construction Defect Cases

It will happen to almost every contractor at some point — an owner or project developer will try to sue you.  Hopefully your insurer agrees you are covered, and you’ve dodged a bullet. But if your insurer tells you that you are not covered, things get sticky.  One common strategy is for the parties to … Continue Reading

Protections Against Subcontractor Defaults

Subcontractor default is a construction project nightmare that can result in significant additional costs and delay completion of the project. But there are two chief options to protect against such risks — performance bonds and subcontractor default insurance.  In my recent article for the Daily Journal of Commerce, I outline the unique characteristics of each … Continue Reading

The Jury’s Out: AAA Issues New Construction Industry Rules Expanding Powers of Arbitrators

There are inherent risks in proceeding to trial by jury. Juries are often unpredictable, and civil litigation also requires extensive discovery and motions practice, which can delay resolution and increase uncertainty and costs. Arbitration has long been accepted as the answer to these problems. But the changing nature of disputes, increasing costs and inefficiencies have … Continue Reading

Five Questions an Owner Should Ask About Insurance and Bonds

Contractors often have limited liquid assets, so insurance and bonding are often the best resources available to an owner to protect against contractor default or defective work. However, not all policies and bonds are created equal, and owners should make sure these resources provide the security the owner needs. In my recent article for the … Continue Reading

Finishing Strong vs. Finishing Wrong: Tips & Traps for Project Completion

Complex construction projects carry complex problems as they approach completion. In my recent article for the Daily Journal of Commerce, I address 10 potential pitfalls that owners, contractors and design professionals may encounter, and I offer tips to help you prepare for them. Read the full article here. “Finishing Strong vs. Finishing Wrong: Tips & … Continue Reading

10 Important Termination Considerations

When terminating a contract, you want to have a high degree of confidence that termination is justified and done properly. In my recent Daily Journal of Commerce Construction column, I outline 10 important considerations in navigating this high-risk terrain. Read the full article here. “10 Important Termination Considerations” was originally published on Feburary 20, 2015 by … Continue Reading

All is Not Well with Oregon’s ELL

In my latest Daily Journal of Commerce Construction column, I discuss Oregon’s Employer’s Liability Law or the ELL, workers’ compensation and why the Oregon legislature should take another look at these piecemeal laws. As it stands, the party with the greatest culpability may not pay anything for the injuries they cause. Read the full article here. … Continue Reading

Put In Writing When the Clock Starts Ticking

In my recent article “Put in Writing When the Clock Starts Ticking,” I discuss how varying intrepretations statue of limitations can affect your business. Setting your own time limits on claims in your construction contracts can help you manage risk. Read the full article here. “Put in Writing When the Clock Starts Ticking” was originally … Continue Reading
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