Category: Developers v. Contractors

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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

Buyer Beware: Oregon Courts Will Enforce Anti-Assignment Provisions in Insurance Policies

An anti-assignment provision in an insurance policy may prohibit the insured from assigning its rights under the policy. In my latest DJC article, I discuss a recent decision by the Oregon Court of Appeals, in which a claimant learned the hard way that Oregon courts will not hesitate to enforce an anti-assignment provision in an … Continue Reading

Alter Ego: The $5MM personal danger of neglecting corporate formalities and utilizing substandard building materials

Many building developers utilize a single purpose entity limited liability company (an “LLC”) to purchase and develop property, such as an apartment complex, a subdivision, or a shopping center. Generally, an LLC’s debts, whether incurred or judicially imposed, belong only to the LLC, not to its members.  However, an LLC’s individual member may be subject … Continue Reading

Idaho Reads Force Majeure Clause Broadly as Written

In a ruling supporting common sense, the Idaho Supreme Court ruled that a county could not avoid the application of a broad force majeure clause in its development agreement with a developer based on the county’s denial of the rezoning required for the very development. The key facts in Burns Concrete, Inc. v. Teton County, … 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

Hate Negotiating? Think It is a Waste of Time? Think Again. Seven Habits of Successful Negotiators

If you dislike negotiating, you are not alone. But successful negotiators understand and embrace the opportunities that a negotiation presents.  In my recent article for the Daily Journal of Commerce, I discuss seven habits of successful negotiators that can help you successfully conclude your construction-related negotiations. Read the full article here.   “Hate Negotiating? Think It … Continue Reading

Contractor Beware When Working With Developers to Assure Mechanic’s Lien Rights

Interpreting Utah’s former mechanic’s lien statute, the Utah Court of Appeals has held that a contractor that contracted with and provided construction services for a developer could not maintain a valid mechanic’s lien on property owned by a third-party landowner. In Reeve & Associates, Inc. v. Tanner, 2015 UT App 166 (2015), the owners of … Continue Reading

Multi-Family Sellers Beware: Don’t “Alienate” Your Project from Insurance Coverage for Construction Defects

The apartment business is booming right now. Unfortunately, construction defects persist as well, particularly in garden-style and wood-framed construction. Most developers are savvy enough to maintain a good insurance program, but many do not understand (until too late) that the policies they bought may not cover the risk of construction defects.  As an owner-developer, neither your property … Continue Reading

Sophisticated Parties? You May Shorten Both the Start and Length of the Statute of Limitations in CA Commercial Construction Contracts

Can parties waive both the commencement and length of the statutory limitation periods for construction defect actions?  Yes, answered the Fourth Appellate District, by allowing the parties to contractually preclude the application of the “delayed discovery” rule that normally triggers the commencement of the limitation time period and affirming case law permitting the shortening of … Continue Reading

Oregon Supreme Court Hears Abraham Appeal

Last month the Oregon Supreme Court heard oral argument in Abraham v. T. Henry Construction, Inc., a residential construction defect case.  Shortly after the Oregon Court of Appeals published its opinion in September 2009, Ahead of Schedule authors Eric Grasberger (“Negligence Claims Take Another Twist in Oregon” and Kip Childs (“Oregon Court of Appeals Provides Clarification … Continue Reading

Negligence Claims Take Another Twist in Oregon

Just when you thought it was safe to go back into the water, the Oregon Court of Appeals strikes again with another iteration of the “economic loss doctrine” which defines when parties can sue each other in negligence for construction defects. In Abraham v. Henry (September 2, 2009) the Court held that parties to a … Continue Reading
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