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
Those that “dig in the dirt” are very familiar with the Damage Information Reporting Tool (DIRT), which was launched in 2003 by the Common Ground Alliance (CGA). Over the years California has enacted several statutes requiring anyone moving dirt to notify a regional notification center of the area of planned disturbance that may impact a subsurface
Residential and non-residential contractors in California have been waiting for the new California energy-related regulations to be issued for the January 1, 2014 compliance deadline. Although many became effective on January 1, delays in the software performance compliance programs by the California Energy Commission required that additional time be provided for contractors to obtain and
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
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
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 Donatellis, and D.R. Strong Engineers, Inc. (“D.R. Strong”) for the development of the owners’ property into two short plats. Initially, D.R. Strong orally agreed to help with the county permitting process and to manage the project through recordation of the plats. According to the Donatellis, D.R. Strong told them the project would be completed in 1.5 years. After obtaining preliminary county approval for the project, which would last 60 months, D.R. Strong sent the Donatellis a written contract for engineering services. The contract detailed the engineering services and estimated fee, but was silent as to D.R. Strong’s project management role. The Donatellis alleged that D.R. Strong assumed extensive managerial responsibilities on the project and charged them four times the initial estimate.
The county’s preliminary approval expired with the project incomplete. Before D.R. Strong could obtain a new preliminary approval, the Donatellis suffered financial hardship and the property was lost to foreclosure. The Donatellis then sued D.R. Strong, claiming over $1.5 million in damages and alleging breach of contract, Consumer Protection Act (“CPA”) violations, negligence, and negligent misrepresentation. The trial court granted summary judgment on the CPA claims, but denied summary judgment on the negligence claims, finding that “‘professional negligence claims can be stated even in the context of a contractual relationship.’” Id. at 622 (quoting trial court). The Court of Appeals affirmed the trial court’s ruling under the independent duty doctrine, based on the notion that engineers owe duties to their clients independent of any contractual relationship. See Donatelli v. D.R. Strong Consulting Eng’rs, Inc., 163 Wn. App. 436, 443, 261 P.3d 664 (2011).
The issues for the Washington Supreme Court included whether the independent duty doctrine applied to preserve the owners’ claims for negligence (despite factual questions regarding the scope of D.R. Strong’s work) and negligent misrepresentation (predicated on D.R. Strong’s alleged misrepresentations made to induce the Donatellis to contract). The Supreme Court affirmed the Court of Appeals’ ruling and thus refined application of the independent duty doctrine to extend the reach of tort-based claims beyond any contractual agreement.
In my latest Daily Journal of Commerce Construction column, I discuss generally the grounds for, and the potential consequences of, certification challenges on LEED-rated projects. As LEED-certified projects grow in popularity and abundance in the Pacific Northwest and elsewhere, all project participants need to know the basis for challenging LEED certification and the impacts arising from
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 the 10-year latent limitation period to four years. The court did hold, however, that such waiver and shortening is permitted where there are sophisticated parties, in a commercial context, and perhaps that the contract must even be highly negotiated (or at least such negotiation is available).
On June 3, 2013, in Brisbane Lodging, L.P. v. Webcor Builders, Inc. (Cal. Ct. App., June 3, 2013, No. A132555) 2013 WL 2404154, the appellate court reviewed the trial judge’s granting of summary judgment in favor of the general contractor (“Webcor”) on the grounds that a provision in the 1997 version of the AIA 201 (General Conditions to the prime agreement between Owner and Contractor) unambiguously barred all claims, contract and tort, brought more than four years after substantial completion of the project, rather than four years after the Owner discovered the alleged breach or defect and within the 10-year statute of repose. The key language for both the trial court and the appellate court was found in provision 13.7:
“13.7 Commencement of Statutory Limitation Period
“13.7.1 As between the Owner and Contractor:
“.1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion ….” (AIA A201, Article 13.7.1.1 (Article 13.7.1.1), bolding and capitalization omitted.)
Mark Twain once said, “everybody talks about the weather, but nobody does anything about it.” In my latest article in the Daily Journal of Commerce, I argue that, in fact, owners and contractors have a chance to do something about the weather when they write their contracts.
Incorporating a contingency amount into a work
On Wednesday, February 29, 2012, Sean Gay will speak at a seminar sponsored by HalfMoon LLC entitled “Minimizing Engineering Liability Exposure.” Mr. Gay will speak about adopting strategies to minimize liability exposure. The seminar will be held at the Doubletree Hotel, 1000 NE Multnomah Street, Portland, Oregon from 8:30 a.m. to 4:15 p.m.
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