The construction industry is driven by its memorialization of business terms and legal obligations in written contracts. However, “tort” law also imposes many implied rights and obligations independent of what parties may have formally agreed to, the foremost of which is to use reasonable care so as to avoid damage to others. In my recent
Washington Supreme Court Affirms Brightwater Decision Regarding Application of Olympic Steamship to Sureties
On July 6, 2017, the Washington Supreme Court confirmed that the equitable rule announced in Olympic Steamship—providing for attorney fees where the insurer compels the insured to take legal action—applies to performance bond sureties on public projects.[1] In King County v. Vinci Construction Grands Projects/Parsons RCI/Frontier-Kemper, the Court affirmed the trial court’s award of over $14 million in attorney fees and costs against sureties of a public works contract.[2]
In 2006, King County contracted with a joint venture of three construction companies to build the piping/conveyance system for the new Brightwater wastewater treatment project. The joint venture contractor submitted a performance bond from five surety companies. Under the contract, if the contractor was in default, the sureties were obligated to step in and remedy the default. When the project was delayed, King County declared the contractor in default and asked the sureties to cure. They refused, claiming that the contractor was not in default.
Draconian Results for Local Agencies Influenced to Improperly Target Private Enterprise
The federal Civil Rights Act (“Act”) was enacted by Congress in 1964 to protect individual civil liberties, but the Act has evolved over time into a vehicle that can also be used to challenge public agencies on a wide range of topics, as long as there is a constitutional right implicated. This side of the
Think the ADA preempts contractual risk shifting? Not so fast, says the Ninth Circuit.
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).
No Right to Damages Between Public Works Bidders
In the world of public works bidding, competition can be fierce. At times the competition may even break some laws in lowering their costs in order to ensure the lowest possible bid. Historically, the only procedure for the aggrieved bidder was to submit a bid protest, and if necessary, file a petition for writ of
Public Private Partnerships Provide an Opportunity to Leverage Private Sector Expertise and Financing for Public Benefit
Creative solutions will likely be required to bridge the gap between the cost of addressing growing infrastructure needs in the U.S., currently estimated at $4 trillion, and the amount of available public funding. One increasingly popular possibility involves supplementing public funds with private financing through agreements that allow for greater private sector participation in the
What’s Up with Bertha?
Regular readers of this blog know that Stoel Rives represents the State of Washington Department of Transportation (“WSDOT”) with regard to construction of the new highway 99 tunnel in downtown Seattle. The giant tunnel boring machine, named “Bertha” (not “Big Bertha” as is sometimes reported), finished its work in April and is now undergoing a
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
WSBA Construction Section Annual Seminar – June 9, 2017
On June 9, 2017, my colleague, Karl Oles, and I (both from the Seattle office of Stoel Rives) will present at the annual meeting and seminar for WSBA’s Construction Section, which this year is entitled Washington Statutes Affecting Construction. This seminar, located at the WSBA Conference Center in Seattle, will feature in-depth discussions regarding
Important Lessons from Record-Setting Settlement in Building Collapse Case
Having lived in Philadelphia in 2013 when the four-story “Hoagie City” building collapsed during demolition and toppled the neighboring Salvation Army thrift store, killing seven people and injuring 12 others, I closely followed the recent civil trial that resulted in a $227 million settlement of the plaintiffs’ personal injury and wrongful death claims—a reported record