Category: Construction Claims

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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

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

Seattle Tunneling Machine Bertha Makes National News

The City of Seattle is replacing the two-level highway viaduct that dominates the downtown shoreline with a two-level tunnel. A very large tunnel boring machine, named Bertha in honor of an early Seattle mayor, has been excavating the tunnel for several months. In December, Bertha encountered an unknown obstruction and came to a halt. Seattleites … 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

The Vexing Date of Substantial Completion: Oregon Supreme Court to Consider Two Cases Addressing When Statutes of Limitation and Ultimate Repose Begin to Run

The Oregon Supreme Court will review two recent Court of Appeals decisions related to statutes of limitation and repose on construction projects. In the first case, Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., the Oregon Supreme Court will address the following questions: (1) When the construction contract includes an accrual provision, is the statute … Continue Reading

Beware the Economic Loss Trap in Construction Disputes

The Oregon Court of Appeals recently applied the so-called “economic loss rule” to a construction dispute (Marton v. Ater Construction Co., 256 Or App 554, __ P3d __ (2013)). Among other issues, the court decided whether the prime contractor’s negligence claim against its subcontractor was barred under the economic loss rule. Under the court-made economic … 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

Don’t Threaten Me!

A 2013 decision from New York reminds us that threats can be costly. In Mometal Structures, Inc. v. T.A. Ahern Contractors Corp., from the Eastern District of New York, Mometal was hired by Ahern as structural steel subcontractor. The project was delayed for reasons that were not Mometal’s fault. Mometal tried to get the information and approvals it … Continue Reading

The Case for Construction Claims Reform

In my latest Daily Journal of Commerce Construction column, I discuss the case for construction claims reform. Construction industry participants all have one thing in common: they hate litigation. While avoiding claims is not always possible, the number of disputed issues can be reduced. Some states have enacted statutes eliminating much of the uncertainty surrounding … Continue Reading

ADA Claims: The Buck Stops with Developers

In my latest Daily Journal of Commerce Construction column, I discuss tips for developers to help handle claims under the Americans with Disabilities Act. In the column, I recommend several mitigation efforts to reduce liability for ADA defects including: hire vendors with a track record of compliance and competence, verify that all participants insurance policies … Continue Reading
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