My partner Colm Nelson and I are on the panel of a seminar on June 5 sponsored by the Seminar Group. The program is called “Bidding Public Works & Construction Contracts.” There is still time to sign up at the Seminar Group website. Colm is talking about insurance. For my presentation, I took the opportunity to update Chapter 8 in our Stoel Rives treatise on Construction Liens in Washington. That’s the chapter about “Lien-Like Remedies on Public Projects” and it covers bonds, retainage, and prompt payment requirements. You can get the updated chapter by going to the seminar, or you can download the whole book by going to the Stoel Rives web page, clicking on “Legal Insights” at the top, and then searching for books with the key word “lien”.
In the Pacific Northwest, Mother Nature can play a large part in whether or not a construction project will be completed on time and on budget. The importance to both owners and contractors of starting a construction project in order to take advantage of a window of good weather or other factors can make finalizing a contract secondary in importance to commencing work. In my latest article for the Daily Journal of Commerce, I look at five reasons why it is prudent to have an executed contract before work starts. Read the full article here.
Originally published as “Five reasons to get a contract signed before construction starts” on April 18, 2019, by the Daily Journal of Commerce.
On May 16, 2019, I will chair The Seminar Group’s Construction Defect Litigation seminar in Portland, Oregon. The seminar will include a panel of knowledgeable lawyers with broad experience litigating construction defect and related insurance disputes. Among those presenting will be two of my colleagues Lou Ferreira and Andrew Gibson. Click here to learn more and to register online.
An international developer considering condominium projects in Washington should be abreast of the potential risks and liabilities arising from the Washington Condominium Act (“WCA”), which provides a broad array of warranty protections for condominium purchasers. The WCA has given rise to a significant increase in the number of construction defect lawsuits — a deterrent to both domestic and international developers in pursuing condominium projects, which has led many developers to construct apartments. In an article for the Journal of Commerce of Canada, Loni L. Hinton addresses several points that international developers should consider early in the development of a condominium project in Washington. Read the full article here.
Originally published as “Industry Voices Op-Ed: Risk mitigation advice for Washington condominium developments” by Journal of Commerce (of Canada), March 18, 2019.
Recently, Division One of the Washington Court of Appeals issued an opinion providing guidance regarding the scope of Washington’s frivolous lien statute and the subtle intricacies of preparing and filing a construction lien against a condominium project. This article provides a high-level overview of how to file a lien against a condominium project in Washington and highlights some of the takeaways from the new opinion that construction professionals should be aware of before starting their next project. Read the full article here.
Originally published as “Here’s what you need to know about filing construction liens against condo projects” on March 14, 2019, by the Seattle Daily Journal of Commerce.
Subcontractor default insurance (“SDI”) — insurance that covers certain losses related to a subcontractor’s material breach of a subcontract — has been gaining in popularity over bonds among general contractors. However, for a number of reasons, sureties assert that bonds are better than SDI, despite the common complaint about bonds that sureties are slow to pay claims. The expedited dispute resolution (“EDR”) bond addresses that complaint by providing the coverage of a traditional bond with an abbreviated investigation and dispute resolution process. In my latest article for the Daily Journal of Commerce I address potential pitfalls of EDR bonds and advantages and disadvantages parties who use the bonds should carefully consider when deciding whether to use them. Read the full article here.
Originally published as “The sureties strike back: the expedited dispute resolution bond” on February 14, 2019, by the Daily Journal of Commerce.
On February 11, 2019, Division One of the Washington Court of Appeals issued an opinion in the case of Woodley v. Style Corp. d/b/a Servpro of Shoreline/Woodinville, No. 77352-6-I (Wash. Ct. App. Feb. 11, 2019). The case highlights the care that should be exercised in filing a lien claim for services furnished to improve a condominium and the consequences that may befall a claimant under Washington’s frivolous lien claim statute, RCW 60.04.081.
The case arose from water intrusion at a unit in the Bellevue Park condominium complex. After discovery of the condition, the condominium’s property management company contacted Servpro and executed a work authorization for the contractor to clean up the water and perform restoration work. Servpro was not paid for its work and filed a claim of lien. The lien named the association as the indebted person, recited that it applied to the 20 specific units and a common storage area of the condominium, and named each owner of the 20 units but did not allocate a specific portion of the total debt to each unit. Continue Reading
California’s 2018 wildfire season — the most damaging and deadly on record — and a pair of earthquakes in Alaska can serve as case studies for Northwest property owners as to steps they can take to mitigate their risks in the event such disasters strike closer to home. In my latest article for the Seattle Daily Journal of Commerce, I provide examples of the most common types of damages incurred by property owners and types of insurance that are available to cover those damages, and look at other tools owners should consider implementing, including emergency response and business continuity plans. Read the full article here.
Originally published on January 31, 2019, by the Seattle Daily Journal of Commerce.
A recent California Court of Appeal decision upheld the state’s complex rules for compensating piece-rate employees. In Nisei Farmers League v. California Labor & Workforce Dev. Agency, 2019 Cal.App. LEXIS 10 (Cal.Ct.App. Jan. 4, 2019), the Court held that the Labor Code’s requirement that piece-rate employees be separately compensated for “nonproductive time” was not unconstitutionally vague. With California’s “productive vs. non-productive time” rubric firmly in place, employers must take great care to track and compensate piece-rate employees’ time, or face stiff penalties.
What Does “Piece-Rate” Mean, And Why Might An Employer Chose It?
Piece-rate compensation plans are very popular in some industries. They can incentivize employee productivity, while giving an employer greater control over labor costs. Under a piece-rate compensation system, the worker is paid a fixed amount of money for each unit produced or action performed, regardless of the number of hours worked. Industries that pay employees on a piece-rate basis include: Continue Reading
Occasional visitors to Seattle may be surprised to discover that their favorite route from the airport to downtown has changed. State Highway 99 no longer links to the Alaskan Way Viaduct into downtown Seattle. The waterfront viaduct has been closed and demolition has begun. The Battery Street tunnel that connected viaduct traffic to Aurora Avenue North will also be demolished.
Closure of the viaduct is the culmination of planning that began when the viaduct was damaged by an earthquake in 2001. After considering many engineering and financial studies, the Washington State Department of Transportation decided to replace the viaduct with a highway tunnel. WSDOT signed a design-build contract in 2011 and tunnel mining began in July 2013. Unfortunately, the tunnel boring machine stopped advancing in December 2013. After dramatic efforts that included building a shaft 120 feet deep and lifting huge pieces of the TBM to the surface for inspection and repairs, the contractor resumed mining in January 2016. The tunnel is now completed. There will be a grand opening ceremony on February 2 and 3, 2019. The tunnel will open to traffic shortly after that. It will be free at first, with tolls phasing in later this year.
Once the viaduct is gone, the City of Seattle has big plans for expanding the Alaskan Way surface street and revitalizing the near-waterfront area.
Further information about this mega project can be found by googling any of the following:
Alaskan Way Viaduct – Tracking Progress
Seattle Waterfront Project