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).
When Can You Rest Easy? A Primer on Statutes of Repose
A statute of repose provides an outside limit as to when construction claims can be brought and is intended to give contractors and design professionals a degree of certainty as to when the risk associated with claims on a particular project diminishes. In my latest article for the Daily Journal of Commerce, I give
Coverage for Crane Damage Proves Tricky
Following a presentation I made at a Seminar Group conference in Oregon on crane easements, one of my colleagues brought to my attention the recent NY case of Lend Lease (US) Construction LMB Inc. v. Zurich American Insurance Co. The NY Court of Appeals found that damage caused to a tower crane when
When “Non-Binding” LOIs Become Binding
A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed by the parties, and might just result in a final agreement in one side’s sole discretion. In some cases, an LOI can be an enforceable agreement to negotiate in good faith toward a final agreement based, at least in part, on its stated terms. Even those LOIs that specifically say they are non-binding may, in fact, be binding. For instance, an LOI could be enforceable in its own right if all material terms of a final agreement are set out in the LOI and the parties’ conduct suggests they treated the LOI as a final agreement. Rather than being a “safe haven” that can be terminated at will without liability, an LOI can present great risk and unintended consequences to the parties if not recognized and handled with care. Missteps in documentation and/or subsequent conduct of the parties along the way could result in blown deals and damages. Even an otherwise carefully and clearly drafted LOI may not be free from risk or unintended consequences.
Joint Washington/Oregon Construction Law Seminar – November 4, 2016
On November 4, 2016, my colleague, Andrew Gibson (from the Portland office of Stoel Rives), and I will co-chair a joint OSBA/WSBA construction law CLE, entitled Two States of Construction Law: Working in Both Washington and Oregon, located at the Heathman Lodge in Vancouver, Washington. This seminar will include a panel of knowledgeable lawyers
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
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
“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
Architect Off the Hook for ADA Defects
Continuing a disturbing trend, another recent case finds that an architect is not liable for a design that failed to comply with the ADA and Section 504 of the Rehabilitation Act (RA). In Chicago Housing Authority v. DeStefano & Partners, Ltd. (here), an Illinois appellate court followed several other federal and state decisions
On Guard: A Look at Subcontractor Default Insurance
Whether you call it SDI or SubGuard, subcontractor default insurance is yet another consideration for public and private project owners as they look at protection from subcontractor default. But what exactly is this relatively new option and when is it most appropriate? In my recent article for the Daily Journal of Commerce, I discuss