Webinar: Navigating a Financially Troubled Project During Uncertain Times

On June 11, I will be co-chairing and my colleague Colm Nelson will be a panelist for “Navigating a Financially Troubled Project During Uncertain Times,” a full-day webinar presented by the WSBA Construction Law Section in partnership with Stoel Rives. Colm will be on a panel that will cover claims and claim defenses related to COVID-19. Other topics include:

  • One-hour ethics discussion
  • Discussion of bankruptcy and receiverships
  • Overview of Washington lien law
  • COVID-19 Impacts on the construction industry and workforce
  • Judicial panel — perspectives on how coronavirus has changed trial and appellate practice and how they will continue to evolve
  • Insurance panel discussion
  • Annual case law and legislative updates

You can find out more about the event and register by clicking here. CLE credits are available.

Pandemic Creates Cause to Rethink Overlooked Contract Provisions

The construction industry has proved adaptable over the course of the pandemic — owners and general and trade contractors have worked closely to ensure that work continued, while keeping workers safe and complying with the various government-ordered and -recommended practices intended to slow the spread of COVID-19. By now, most owners and contractors are well versed on the importance of force majeure provisions in their contracts. But the pandemic has also shone a light on other often overlooked provisions.  In my latest column for the Daily Journal of Commerce, I discuss these provisions as well as provide some suggestions on managing impacts and claims during a pandemic. Read the full article here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on April 15, 2021.

Benefits and Risks of Involving a Project’s Contractor in The Design

The roles of designers and contractors are being combined for more and more construction projects, an approach that comes with both benefits and risks. Several methods of project delivery are commonly in use, none of which is entirely exclusive — different projects may include different and overlapping roles for owner, designer and contractor. In my latest column for the Daily Journal of Commerce I compare three methods of project delivery — “design-bid-build,” construction manager” or “CM,” and “design-build” — and outline some advantages, and risks, inherent to each as well as means of protection against the risks. Read the full article here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on March 18, 2021.

New Washington Case Strictly Construes Lien Statute and Rejects Warranty Work as Basis to Extend Lien Filing Period

In its March 11, 2021 opinion, Division Three of the Washington Court of Appeals considered whether the 90-day period to record a claim of lien is extended by a contractor performing work after substantial completion to correct nonconforming work – usually referred to as “warranty work.”  In the case of Brashear Electric, Inc. v. Norcal Properties, LLC, the Court strictly construed the statutory term “repairing” to exclude the contractor’s correction of its own work and rejected the notion that warranty work extended the 90-day timeframe to file a lien claim.

Norcal Properties, LLC (“Norcal”) and Blue Bridge Properties, LLC (“Blue”) own adjacent properties.  Norcal and Blue separately contracted with Vandervert Construction (“Vandervert”) to construct a building on each property.  The prime agreements’ substantive provisions were identical.  Vandervert subcontracted with Brashear Electric, Inc. (“Brashear”) to work on both projects.

Under the prime agreements, Vandervert promised to correct nonconforming work up to a year after substantial completion.  Vandervert’s subcontracts with Brashear required Brashear to assume the prime agreements’ warranty provisions. Continue Reading

Strategic Tips That Parties Should Consider When Mediating Disputes

Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have any decision-making authority in the context of the mediation.

Instead, like any negotiation, the outcome of mediation is entirely in the hands of the parties. The mediator helps the parties by managing the exchange of information and other aspects of the negotiation process, like finding common ground and dispelling unrealistic expectations. In my latest article for the Daily Journal of Commerce, I provide some considerations parties involved in a mediation should keep in mind to maximize the possibility of a successful outcome. Read the full article here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on February 18, 2021.

Three Tips for Owners and Contractors to Improve Their Odds of Success in 2021

While all of us begin 2021 still confronting the challenge of COVID-19, construction project owners face particular pandemic-related issues in their industry, including the need to maintain strict best practices for projects and manage scheduling and labor challenges for existing and new projects. In my latest article for the Daily Journal of Commerce, I provide owners and contractors with three tips to increase their chance of success in 2021:

  • Negotiate and agree to reasonable contract terms for new projects, and verify carefully the status with regard to completion of existing projects.
  • Evaluate your insurance and consider whether a performance bond may be necessary to try to ensure work completion.
  • Diligently address project events such as deadlines, requirements and forecasts.

Read the full article here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on January 14, 2021.

Why Early Mediations Often Fail, and Possible Remedies

Unlike 20 years ago, when a mediation – a commonly used route for resolving disputes in the construction claims process – was typically held close to the trial date, today the prospect of an early settlement can lead to the parties often seeking multiple mediation sessions over the course of a dispute. Additionally, construction and design contracts drafted recently generally call for an early mediation session before a lawsuit or arbitration demand can be filed. However, despite best intentions and highly competent mediators, early mediations often fail. In my latest article for the Daily Journal of Commerce, I look at a few steps the parties can take to increase the odds for a successful mediation. Read the column here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on December 22, 2020.

Ensuring Your Construction Project Remains Insured

In too many cases, the developers, builders and designers of a construction project focus on starting work and pay inadequate attention to making sure important details of their insurance coverage are fully in place. Coverage denials can result from deferring to “standard” insurance forms, relying on informal broker assurances and not taking the time to fully the review the range of policy “endorsements” that may act to exclude particular claims. In my latest article for the Daily Journal of Commerce, I look at several of the more common insurance coverage mistakes that might reduce or negate your coverage and provide some best practices to keep in mind for your next time reviewing coverages or claims. Read the column here.

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on November 19, 2020.

OR-OSHA Publishes Model Infection Control Policy Required by New COVID- 19 Rules

On November 6, 2020, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published final temporary rules for workplace safety protections specific to COVID-19. Our alert about the new rules is available here.

Among other requirements, the new rules require employers to adopt a COVID-19 Infection Notification policy for notifying exposed and affected employees of possible exposure within 24 hours of learning that an infected individual was in the workplace. OR-OSHA yesterday published on its website a model Infection Notification policy, which you can review here.  Employers must adopt a policy (whether their own or the OR-OSHA model) by Monday, November 16, 2020.

Please join us on November 19, 2020, at 11 a.m. for a webinar to discuss the new OR-OSHA rules.  Registration information is available here.

Mitigation of Risk in the Age of COVID-19: Ten Ways Owners Can Protect Themselves Against Lien Claims in Washington

Among the many effects on the U.S. economy of the COVID-19 pandemic, construction projects that started before it began but were halted in its aftermath may be slow to resume or be abandoned altogether thanks to funding issues. Contractors, subcontractors, and suppliers feel immense pressure to protect and preserve their rights to payment for work performed on their jobs, and one tool they use to ensure they are paid is the construction lien. In my latest article for the Daily Journal of Commerce, I look at several strategies owners and developers can employ to mitigate the risk they face from lien claims. Read the article here.

Originally published as “OP-ED: Ways owners can protect themselves from lien claims in Washington,” by the Daily Journal of Commerce, October 15, 2020.

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