Tag: Construction Litigation

Dispute Resolution for Developers

The nearly 60 cranes towering over Seattle’s skyline may be a sign of the building boom in the city, but they also could portend a flood of construction claims arising from the projects they help build. Despite the frequency of construction claims, many developers are not familiar with the dispute resolution methods available to them … Continue Reading

Under California’s Right to Repair Act, Ignore Deadlines at Your Own Peril

In a very recent decision, the Fourth District Court of Appeal in Blanchette v. Superior Court affirmed the plain language of the Home Builder’s Right to Repair Act, holding that even a facially insufficient notice of defect triggers the obligation of a builder to respond within 14 days.  The statute, Civil Code section 895 et. … Continue Reading

One Unanticipated Cost of Being an Owner-Builder in California: Liability for Retained Control over Safety

Many times I hear from people who want to “save money” and serve as their own “owner-builder” under the exemption to the California Contractor’s Licensing law, which generally requires that any “construction” work over $500 to be performed by a licensed California contractor in the absence of an exemption.  (Bus. & Prof. Code section 7048).  … Continue Reading

Yes, Contractor Licensing May Be Required Under California Law Even if the Contractor Does Not Physically Build Anything Itself

It seems that almost weekly, and certainly monthly, I receive a call or inquiry from colleagues and/or prospective clients as to whether a license is really required if the prospective “contractor” is not actually building anything but is merely facilitating a “deal” or is hiring otherwise qualified and licensed contractors and trades. Virtually every time … Continue Reading

Multi-Family Sellers Beware: Don’t “Alienate” Your Project from Insurance Coverage for Construction Defects

The apartment business is booming right now. Unfortunately, construction defects persist as well, particularly in garden-style and wood-framed construction. Most developers are savvy enough to maintain a good insurance program, but many do not understand (until too late) that the policies they bought may not cover the risk of construction defects.  As an owner-developer, neither your property … 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

The Vexing Date of Substantial Completion: Oregon Supreme Court to Consider Two Cases Addressing When Statutes of Limitation and Ultimate Repose Begin to Run

The Oregon Supreme Court will review two recent Court of Appeals decisions related to statutes of limitation and repose on construction projects. In the first case, Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., the Oregon Supreme Court will address the following questions: (1) When the construction contract includes an accrual provision, is the statute … Continue Reading

Four Stoel Rives Partners to Speak at the 18th Annual Oregon Construction Law Seminar

On September 26 and 27, 2013, The Seminar Group will present its 18th Annual Oregon Construction Law seminar in Portland, Oregon. I will be speaking about Integrated Project Delivery, which is an emerging project delivery method emphasizing collaboration among project participants. Three of my partners also will be presenting: Guy Randles, program co-chair, will speak … Continue Reading

Beware the Economic Loss Trap in Construction Disputes

The Oregon Court of Appeals recently applied the so-called “economic loss rule” to a construction dispute (Marton v. Ater Construction Co., 256 Or App 554, __ P3d __ (2013)). Among other issues, the court decided whether the prime contractor’s negligence claim against its subcontractor was barred under the economic loss rule. Under the court-made economic … 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

Don’t Threaten Me!

A 2013 decision from New York reminds us that threats can be costly. In Mometal Structures, Inc. v. T.A. Ahern Contractors Corp., from the Eastern District of New York, Mometal was hired by Ahern as structural steel subcontractor. The project was delayed for reasons that were not Mometal’s fault. Mometal tried to get the information and approvals it … Continue Reading

No Contractor’s License Means You Work for Free

 Yet another California court decision has been issued requiring a contractor to return over $750,000 received for work he performed on a casino while he was unlicensed. In rejecting the contractor’s arguments against disgorgement, the court found that (a) California Business and Professions Code § 7031’s penalties applied to work performed for tribal corporations and on … Continue Reading

May a Contractor Sue the Owner’s Lender?

In my latest Daily Journal of Commerce Construction column, I discuss the issue of whether a contractor may sue a lender. This occasionally arises when a project’s owner runs into trouble and the construction lender stops funding. The argument that is occasionally advanced is that the lender knew the contractor had started work and, if … Continue Reading

New for 2013! California Form Interrogatories – Construction Litigation (DISC-005)

Any construction litigation party faced with responding to California’s standard form interrogatories is all too familiar with the confusing use of the undefined term “incident” and the largely inapplicable “personal injury” interrogatories in a construction case. Similarly, any construction litigator dealing with the standard form interrogatories has felt the burden of sifting through the plethora of … Continue Reading

Nevada Lenders Beware! Mechanic’s Liens Not Easily Avoided

Following the market crash in 2008-09, the $2.8 billion Fontainebleau development in Las Vegas was halted with 70 percent of the construction completed. Naturally, numerous mechanic’s liens were filed by contractors, subcontractors, professionals and suppliers ("claimants"). In the bankruptcy proceeding, the lenders asserted novel and potentially legally destabilizing theories against the claimants’ rights: a.) the … Continue Reading

The Litigation Process: An Upper Division School of Hard Knocks

Litigation can be one of the most time-consuming and expensive ways to resolve disputes in the construction industry. Often, parties to construction-related disputes prefer to resolve them through alternate dispute resolution procedures, such as mediation or arbitration. However, sometimes litigation cannot be avoided. In his latest article in the Daily Journal of Commerce, Guy Randles … Continue Reading

You Can’t Make This Stuff Up: The Human Condition Meets Construction Law

In my recent article “You Can’t Make This Stuff Up: The Human Condition Meets Construction Law,” published in the Daily Journal of Commerce, I outline the bizarre, seemingly impossible litigation matters of the Construction and Design business. The article touches on a variety of past cases, including an employee stabbing himself in the eye during … Continue Reading

Multi-Party Construction Defect Litigation CLE

In a recent national webinar by the Strafford Publication Group, I spoke about the key challenges facing plaintiffs in construction defect cases, including initial case evaluation, discovery issues, expert issues and allocating damages among multiple defendants. My co-presenters from two firms in Dallas, Texas followed my presentation with the key challenges facing defendants. The slides … Continue Reading

Utah Reverses Course on Apportioning Costs of Defense to Policyholders

 A recent Utah Supreme Court decision could result in significant benefits to some policyholders in Utah’s construction industry. The case, Ohio Casualty Insurance Co. v. Unigard Insurance Co., 2012 UT 1, concerned a fight between two insurers about how to split the costs of defending a lawsuit brought against their policyholder, Cloud Nine. For policyholders, the most … Continue Reading

The Increasing Importance of Performance Bonds

There are now 25 states in the U.S. that hold that construction defects are not an “occurrence” and are therefore not covered under commercial general liability policies insuring contractors.  Couple this troubling statistic with the ever increasing number of policy exclusions and limitations, and we begin to realize that in many situations the contractor’s insurance … Continue Reading

Dispute resolution clauses: getting the prenup right before you say “I do.”

Before using AIA forms  or any other agreement to begin a project, owners should review and revise those forms to ensure that they contain appropriate provisions governing dispute resolution. Otherwise, you may be stuck suing different parties in different forums for the same set of construction and design defects, you may be unable to recover the … Continue Reading

Oregon Supreme Court Hears Abraham Appeal

Last month the Oregon Supreme Court heard oral argument in Abraham v. T. Henry Construction, Inc., a residential construction defect case.  Shortly after the Oregon Court of Appeals published its opinion in September 2009, Ahead of Schedule authors Eric Grasberger (“Negligence Claims Take Another Twist in Oregon” and Kip Childs (“Oregon Court of Appeals Provides Clarification … Continue Reading

Washington Supreme Court Re-Examines Economic Loss Rule

The Economic Loss Rule plays an important part in construction disputes, but it has not been clearly defined or understood, or so the Washington Supreme Court has recently stated. The Economic Loss Rule has been generally described as applying to “economic damages” in cases where the plaintiff has a contract that addresses or could reasonably address the … Continue Reading
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