Construction project owners, contractors, and design professionals sometimes fall into the trap of not giving careful consideration to the risks specific to a given project and will wait until an actual dispute arises before closely analyzing the dispute resolution provisions in a design or construction agreement. In my latest article in the Daily Journal of
Lesser-Known Insurance Policies for Addressing Risks of Construction Projects
Bringing a construction project to fruition involves significant risks to project owners, designers, and contractors. Many of those risks will be allocated in the parties’ contracts, in turn requiring those parties to obtain insurance and further allocating risks to insurance companies. Several commonly used insurance policies are at the heart of any construction project insurance
A Case in How to Delegate and Avoid Landowner Liability for Contractor Employees
In a case of first impression in Washington, the Washington State Supreme Court held that a landowner may satisfy its duty to guard an invitee “against known or obvious dangers on the premises by delegating the duty of protection to an independent contractor.” Eylander v. Prologis Targeted U.S. Logistics Fund, LP, 539 P.3d
Washington Supreme Court Weighs in on Notice Requirements for Labor Liens: Velazquez Framing LLC v. Cascadia Homes, Inc.
Washington’s construction lien statute, RCW 60.04, balances the interests of persons performing work to improve real property with the interests of property owners in avoiding the necessity of paying for the same work twice. An unpaid contractor can assert a lien against property it has improved, but the owner has a right to notice that the work is taking place. On commercial projects, a contractor that is not under contract with the owner or prime contractor (a “lower-tier” subcontractor) usually must give a pre-claim notice to the owner to preserve its lien right. A contractor supplying only labor is expressly exempt from this requirement, though there has been some question regarding whether a lower-tier subcontractor providing both labor and materials is subject to the notice requirement.
The Role of Liquidated Damages Provisions in Construction Contracts
The glue that holds together a construction project—an undertaking that can be massive, with millions of dollars at stake and the coordination of thousands of people required—is the construction contract, the primary purpose of which is to provide a path for parties to apportion the risk involved in any construction at the front end of
Beware of ‘Standard’ Construction Contract Terms; Nothing Is ‘Standard’
In their focus on starting a construction project, developers, designers, and contractors can fall prey to unintended consequences arising from their deferral to and use of an “industry standard” contract form—as opposed to taking the time to precisely tailor the contract to the project’s needs and risks. In my latest article for the Daily Journal
Arbitration Provisions to Consider in a Proposed Design or Construction Contract
The party responding to a proposed design or construction contract may satisfy itself that the contract proposes arbitration or litigation to resolve any disputes and leave it at that—as long as the method of resolution is generally aligned with the party’s preferences. In order to eliminate surprises for their clients if a dispute arises and
Efforts Expected of a Contractor When Efforts Clauses Are in Dispute
A construction project can be delayed for a multitude of reasons. Where the cause of the delay is not force majeure, or other excusable delay by a contractor, and where the contractor has some fault, what level of actions must a contractor take to satisfy the terms “best efforts” or “reasonable efforts” or “commercially reasonable
The Importance of Third-party Beneficiary Clauses in Contracts
For anyone building a dream vacation home, renovating an existing commercial structure, or developing a multimillion-dollar, mixed-use project, construction contract terms are of utmost importance. One often overlooked clause covers the contractual “third-party beneficiary” (TBP)—a person or entity who, though not a party to the contract, stands to benefit from the contract’s performance. Interpretations of
Ways to Guard Against Insolvency Risks
The looming threat of a recession in the U.S. should serve as reminder to members of the construction industry that insolvency risks are real and need to be kept top of mind when moving forward with new construction projects. In my latest article for the Daily Journal of Commerce, I look at several options