Category: Risk Management

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Important Lessons from Record-Setting Settlement in Building Collapse Case

Having lived in Philadelphia in 2013 when the four-story “Hoagie City” building collapsed during demolition and toppled the neighboring Salvation Army thrift store, killing seven people and injuring 12 others, I closely followed the recent civil trial that resulted in a $227 million settlement of the plaintiffs’ personal injury and wrongful death claims—a reported record … Continue Reading

The Devil is in the Details: Contractual Additional Insured Requirements

Owners frequently require their contractors to name them as additional insureds. Owners and contractors often include requirements seeking to have the obligation to name them as additional insureds “flow down” to parties with whom they lack a direct contractual relationship (e.g., subconsultants, subcontractors, and suppliers).  Despite the simplicity and appeal of this arrangement, contractual additional … Continue Reading

Under California’s Right to Repair Act, Ignore Deadlines at Your Own Peril

In a very recent decision, the Fourth District Court of Appeal in Blanchette v. Superior Court affirmed the plain language of the Home Builder’s Right to Repair Act, holding that even a facially insufficient notice of defect triggers the obligation of a builder to respond within 14 days.  The statute, Civil Code section 895 et. … Continue Reading

Is Late Notice A Big Deal? Ninth Circuit Asks For An Opinion From CA Supreme Court On Insurance Question

So, what’s the big deal if you’re a little “late” in giving your insurer notice of the claim or lawsuit against your company?  That’s the question, albeit in essence, that the Ninth Circuit has posed to the California Supreme Court recently in an Order Certifying Questions, Pitzer College v. Indian Harbor Insurance Co. Specifically, the … Continue Reading

Redefining Priorities: Risk Management, Enhanced Quality, and Minimizing Disputes

When engaging in a new construction project, the primary focus is frequently on the immediate issues — plans, permits and the build-out itself.   But building good risk management procedures and techniques into the front end of your project planning can have bottom-line business benefits. In my recent article for the Daily Journal of Commerce, written … 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

One Unanticipated Cost of Being an Owner-Builder in California: Liability for Retained Control over Safety

Many times I hear from people who want to “save money” and serve as their own “owner-builder” under the exemption to the California Contractor’s Licensing law, which generally requires that any “construction” work over $500 to be performed by a licensed California contractor in the absence of an exemption.  (Bus. & Prof. Code section 7048).  … 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

“Without Performance Specifications, Green Building Can LEED to Disputes

It’s been more than 20 years since the LEED standard was introduced, and green building has now become a significant percentage of new U.S. commercial real estate construction.  The benefits of green building techniques and products have made LEED certification a hot commodity and changed the construction industry.  But there are also risks involved if … 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

“From, For, and Against”: What’s the Difference?

Indemnity provisions are often among the most negotiated and least understood provisions of commercial contracts, and construction contracts are no exception to this rule. Despite, and perhaps because of, the importance of these clauses, they have evolved into an almost impenetrable jumble of legal terminology. This jumble of words is not, however, without meaning. Although … Continue Reading

No Crane Trespassing! Swingway Easements Make Good Neighbors

Earlier this year, my colleague Eric Grasberger authored a blog post about a crane collapse in Lower Manhattan.  In that post, he mentioned that neighboring landowners may seek to prevent cranes from intruding into the airspace above their property.  Contractors and owners alike are often surprised to learn that a crane swinging over adjacent property … Continue Reading

Recent Survey Lauds Integrated Project Delivery (IPD), But Are There Risks with IPD?

According to an October 15, 2015 report published in the Engineering News-Record, covering the broadest survey performed to date on IPD, the industry is moving toward more collaborative contracting schemes, with what appears to be an overwhelmingly positive response strongly supporting risk and reward sharing multi-party agreements.  Conducted by the University of Minnesota and sponsored … Continue Reading

Yes, Contractor Licensing May Be Required Under California Law Even if the Contractor Does Not Physically Build Anything Itself

It seems that almost weekly, and certainly monthly, I receive a call or inquiry from colleagues and/or prospective clients as to whether a license is really required if the prospective “contractor” is not actually building anything but is merely facilitating a “deal” or is hiring otherwise qualified and licensed contractors and trades. Virtually every time … Continue Reading

NYC Crane Collapse Likely to Fuel Crane Objections and Easements

On Friday, February 5, one man died and three were injured when a 565-foot crane toppled in gusty winds in lower Manhattan, not far from the World Trade Center. The investigation will likely take weeks to months as experts try to reconstruct whether the engineering, erection, operation or manufacture of the crane, or some combination … Continue Reading

The Trend Towards Liability Waivers in Design and Construction

The increasing presence of liability waivers in construction and design contracts is of concern to owners, general contractors and architects alike.  In my recent article for the Daily Journal of Commerce, I address a variety of clauses that limit liability and offer tips for negotiating more reasonable conditions and limits.  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

The Latest DIRT in California: Additional Mandatory Reporting for Excavators, Operators and Contractors?

Those that “dig in the dirt” are very familiar with the Damage Information Reporting Tool (DIRT), which was launched in 2003 by the Common Ground Alliance (CGA). Over the years California has enacted several statutes requiring anyone moving dirt to notify a regional notification center of the area of planned disturbance that may impact a subsurface … Continue Reading

Contractors Still Have Time: Certain CA Energy-Related Regulations Delayed to July 1, 2014

Residential and non-residential contractors in California have been waiting for the new California energy-related regulations to be issued for the January 1, 2014 compliance deadline.  Although many became effective on January 1, delays in the software performance compliance programs by the California Energy Commission required that additional time be provided for contractors to obtain and … Continue Reading

Owners: Watch Out for New Endorsements

The new year brings a reminder that owners need to be careful about changes to their contractors’ and designers’ insurance policies. Many of the most important terms of an insurance policy are in “endorsements” added to the policy. For example, a policy may include an endorsement excluding claims between insured parties (say, a claim by … Continue Reading

Bah Humbug: California Supreme Court Won’t Hear Dispute Arising From Overbroad SB800 Decision

You may have recently heard that on December 11, 2013, the California Supreme Court denied the builder’s Petition for Review of the published decision in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC, 163 Cal. Rptr. 3d 600, Cal. App. 4th 98 (2013). For builders and contractors, this is very frustrating news and undermines the … Continue Reading

Pay Attention to Your Contract Terms and Scope – Recent Washington Supreme Court Decision Reshapes Independent Duty Doctrine

In a recent case, Donatelli v. D.R. Strong Consulting Engineers, Inc., 312 P.3d 620 (Wash. 2013), a sharply divided 5-4 opinion by the Washington Supreme Court provides further evidence that the line between Washington’s “economic loss” rule and “independent duty” doctrine remains quite blurred.  The case arose out of an agreement between property owners, the … Continue Reading

Are LEED certification challenges on the horizon?

In my latest Daily Journal of Commerce Construction column, I discuss generally the grounds for, and the potential consequences of, certification challenges on LEED-rated projects. As LEED-certified projects grow in popularity and abundance in the Pacific Northwest and elsewhere, all project participants need to know the basis for challenging LEED certification and the impacts arising from … Continue Reading
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