Category: Risk Management

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The Trend Towards Liability Waivers in Design and Construction

The increasing presence of liability waivers in construction and design contracts is of concern to owners, general contractors and architects alike.  In my recent article for the Daily Journal of Commerce, I address a variety of clauses that limit liability and offer tips for negotiating more reasonable conditions and limits.  Read the full article here. … Continue Reading

Put In Writing When the Clock Starts Ticking

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 originally … Continue Reading

The Latest DIRT in California: Additional Mandatory Reporting for Excavators, Operators and Contractors?

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 … Continue Reading

Contractors Still Have Time: Certain CA Energy-Related Regulations Delayed to July 1, 2014

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 … Continue Reading

Owners: Watch Out for New Endorsements

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 … Continue Reading

Bah Humbug: California Supreme Court Won’t Hear Dispute Arising From Overbroad SB800 Decision

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 the … Continue Reading

Pay Attention to Your Contract Terms and Scope – Recent Washington Supreme Court Decision Reshapes Independent Duty Doctrine

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 … Continue Reading

Are LEED certification challenges on the horizon?

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 … Continue Reading

Sophisticated Parties? You May Shorten Both the Start and Length of the Statute of Limitations in CA Commercial Construction Contracts

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 … Continue Reading

Doing something about the weather

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 bid … Continue Reading

Adopting Strategies to Minimize Liability Exposure

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.    Click here … Continue Reading

Bond. Performance Bond.

Performance bonds—insurance-like arrangements in which a surety (the bonding company) contractually agrees to pay for the performance of a principal (the contractor) to an obligee (the owner) in case the principal fails to perform the obligations of its contract—should be used more often in construction agreements to provide owners with a source of funds to … Continue Reading

The Risk of Builders Risk

Contractors and owners obtain builders risk policies to protect themselves from risks associated with construction. But a lack of care in understanding and negotiating the provision of the construction agreement governing the builders-risk policy and the policy itself may lead the parties to expose themselves to needless and significant liability. What owners and general contractors … Continue Reading

LEED Decertification

If you think LEED certification of a building is a one-time deal, think again. USGBC’s latest version of LEED (version 3) establishes several new changes to LEED certification. Two of those changes are particularly significant. First, USGBC now requires building owners to submit operational performance data on a recurring basis as part of the LEED … Continue Reading
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