In my latest column for the Daily Journal of Commerce, I look at the concept of liquidated damages – in my experience one of the top five heavily negotiated (and litigated) clauses in a construction contract. Because a project owner’s potential delay damages are often difficult to determine with certainty at the beginning of
Builder’s Risk Policy Claim Checklist
If you incur property damage on your construction project site and want to know if insurance will help you compensate for it, several challenges arise. First, you need to determine if you have an insurance policy that could provide coverage. Second, you must determine the extent to which the policy covers property damage and related
Disgorgement Liability in CA for Unlicensed Contractors Runs One Year from Completion or Cessation
In a very recently published case dealing with issues of first impression in California, here, the Second Appellate District in Los Angeles determined that the disgorgement penalty under BPC 7031(b) triggers a one-year statute of limitations given that it is a penalty, and the cause of action accrues from either the completion or cessation
Allocate Payments Clearly to Minimize Construction Disputes
In an ideal world, a contractor performs a portion of the work on a project as provided for in a construction contract, the owner pays the contractor an installment payment for that portion of the work, and the parties continue similarly until the work is finished. However, many factors can upset the equation – changes
Registration Now Open for the WSBA Construction Section’s Annual CLE Seminar (Via Webinar on June 12, 2020, on Alternative Procurement and Coronavirus Impacts)
The Construction Section of the Washington State Bar Association, in partnership with Stoel Rives, will present its annual full day seminar (via webinar) on June 12. Co-chaired by Bart Reed (Partner at Stoel Rives), Brett Hill (Partner at Ahlers, Cressman & Sleight), and Ron English (Retired General Counsel of the Seattle Public Schools), the webinar
Construction Alert: Washington Court of Appeals’ Conway Opinion Provides New Guidance Regarding a Right to Cure, a Set-Off, and Recovery of Attorney Fees
In Conway Construction Company v. City of Puyallup, No. 80649-1-1 (May 4, 2020), the Washington Court of Appeals, Division 1, adopted Oregon’s Shelter Products, Inc. v. Steelwood Construction, Inc., precluding certain claims for defects in termination cases and limiting the justification for termination to those listed in the termination notice. It also held that Washington’s settlement statute protecting public owners, RCW 39.04.240, trumps an attorney fee provision in a contract.
In Conway, the City of Puyallup (“City”) contracted with Conway Construction Company (“Conway”) to construct certain roadway improvements. During the project, the City became concerned about construction defects. The City issued notices to Conway expressing its concerns. The City also observed unsafe work conditions and reported the safety violations to the Washington State Department of Labor & Industries. After issuing a series of notices, the City terminated Conway because of its defective work and safety violations.
Differing Site Conditions An Issue in the Seattle SR 99 Tunnel Litigation
In late 2019, the Washington State Department of Transportation and Seattle Tunnel Partners (STP) engaged in a nine-week trial of claims arising from construction of the new State Route 99 tunnel under downtown Seattle. One major issue for the jury was whether STP had encountered “differing site conditions” – unknown underground conditions that differ materially
Warning Signs that a Contractor May Be Overextended
If you are involved in the construction industry, like it or not risk management is part of your job. From home office executives to workers in the field, each person is expected to manage schedule, cost, and safety risks. While these risks are common, the recent prolonged period of economic growth has created new challenges,
An Owner’s Guide to Accessibility Claims in Washington
When owners engage architects and accessibility consultants to design their projects, they naturally expect good design, but they must also be sure the design provides all users with the practical ability to use and enjoy the end result. Civil rights acts such as the ADA and Fair Housing Act were enacted to provide certain protected
Stoel Rives Helps WSDOT Defeat a $640 Million Claim
The biggest construction project in Seattle in recent years has been the replacement of a seismically compromised waterfront viaduct with a tunnel carrying State Route 99 under downtown. The project was delayed for about two years while the contractor repaired damage to its tunnel boring machine. The contractor claimed that the damage was caused by