SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Structural Health Check-Ups Needed but Are Too Infrequent

August 16, 2021 — Jeff Rubenstone - Engineering News-Record
Knowing when a building is structurally deteriorating, and actually doing something about it can be very different things, as the collapse in Surfside, Fla., has shown this month. And while onsite visual inspections are still the common kind of structural assessment, other methods can assess the health of a building or piece of infrastructure and determine its soundness (see p. 69). Reprinted courtesy of Jeff Rubenstone, Engineering News-Record Mr. Rubenstone may be contacted at rubenstonej@enr.com Read the full story... Read the court decision
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CGL Coverage for Liquidated Damages and the Contractual Liability Exclusion

October 09, 2023 — Stu Richeson - The Dispute Resolver
Liquidated delay damages are common in construction contracts and are generally imposed when a contractor fails to achieve substantial completion within the time required by the contract. While contracts like the AIA A201-2017 have provisions for extending the time to achieve substantial completion when delays are caused by circumstances beyond the contractor’s control, delays can result from factors other than improper management or planning and the like, for which the owner is not required to give the contractor additional time. Courts are split on whether there is ever coverage under a CGL policy for contractually agreed upon liquidated delay damages. Liquidated delay damages are often excluded under the contractual liability exclusion of most CGL policies. The contractual liability exclusion excludes coverage for “liability for which the Insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement.” Courts often find the contractual liability exclusion in a CGL policy precludes coverage for liquidated delay damages, because such damages are contractual in nature and are triggered by the failure to bring the contract to substantial completion by a fixed deadline, regardless of the cause of the delay. However, some courts will look to the cause of the delay and find that there is coverage under a CGL policy for liquidated delay damages that are the result of property damage caused by an accident or occurrence. In Clark Const. Grp., Inc. v. Eagle Amalgamated Serv., Inc., 01-2478-DV, 2005 WL 2092998, at *1 (W.D. Tenn. Aug. 24, 2005) a general contractor entered a contract for the renovation of the convention center in Memphis. Part of the project included the demolition of a structure attached to the convention center. The demolition work was improperly performed by a subcontractor and resulted in damage to the convention center. Read the court decision
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Reprinted courtesy of Stu Richeson, Phelps
Mr. Richeson may be contacted at stuart.richeson@phelps.com

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American Arbitration Association Revises Construction Industry Rules and Mediation Procedures

April 08, 2024 — Dennis Cavanaugh & Larry Grijalva - Construction Law Zone
The American Arbitration Association (AAA), one of the longest-standing and experienced alternative dispute resolution (ADR) administrators, has unveiled a significant update to its Construction Industry Rules and Mediation procedures. This update, last revised in 2015, became effective March 1, 2024. Changes to the AAA Construction Industry Rules are significant as these rules are incorporated by default in American Institute of Architects standard construction forms, which are widely used in the industry. Advancements in remote access technology drive a substantial number of new changes. Others are designed to streamline the arbitrator appointment process and certain prehearing procedures and to make arbitration more cost-efficient by enhancing the arbitrator’s case management authority. Some of the more notable changes are: Fast Track F-1: The limit for cases eligible for AAA’s Fast Track Procedures has been increased from $100,000 to $150,000 so long as no claim or counterclaim exceeds that amount. Reprinted courtesy of Dennis Cavanaugh, Robinson & Cole and Larry Grijalva, Robinson & Cole Mr. Cavanaugh may be contacted at dcavanaugh@rc.com Mr. Grijalva may be contacted at lgrijalva@rc.com Read the court decision
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2017 California Construction Law Update

December 15, 2016 — Garret Murai – California Construction Law Blog
To say it’s been an exciting year in politics would be an understatement. While most of the nation’s attention was focused on the presidential election, state legislatures, including California’s, were busy at work. The California State Legislature introduced 3099 bills during the second session of the 2015-2016 session of which 808 bills were signed into law. 2016 saw the enactment of several bills of interest to the construction industry including bills related to alternative project delivery methods, prevailing wages, and licensing. Each of the bills discussed below takes effect on January 1, 2017. Project Delivery AB 2126 – Amends Public Contract Code section 6701 to increase the number of projects the Department of Transportation may use the construction manager/general contractor method of project delivery from no more than 6 projects, to 12 projects, of which 8 of the 12 projects would be required to use Department employees or consultants under contract with the Department to perform all project design and engineering services. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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A Look Back at the Ollies

May 03, 2018 — Beverley BevenFlorez-CDJ STAFF
The Jerrold S. Oliver Award of Excellence, also known as the “Ollie” award, is presented to “an individual who is outstanding or has contributed to the betterment of the construction defect community.” West Coast Casualty asks members of the construction defect community to nominate those they feel are deserving of the award, and then members vote for one of four nominees. The award is presented at the West Coast Casualty Seminar. Those recognized receive a plaque and a donation in the winner’s name to Habitat for Humanity as well as a local California and Nevada charity. Jerrold S. Oliver was a “’founding father’ in the alternate resolution process in construction defect claims and litigation. His loyalty and commitment to this community were beyond mere words as he was a true believer in the process of resolution.” Past Award Winners: 1996 - Awarded to Ross R. Hart, Esq. (Mediator - American Arbitration Assoc.) 1997 - Awarded to Merv Thompson, Esq. (Mediator in private practice) 1999 - Awarded to Tom Craigo, (Adjuster - C.N.A. Insurance Company) 2000 - Awarded to Kristi Cole, (Adjuster - Safeco Insurance Company) 2001 - Awarded to Karen Rice, (Claims Manager - ACE / USA) 2002 - Awarded to Stephen Henning, Esq. (Wood, Smith, Henning and Berman, LLP) 2003 - Awarded to Ross Feinberg, Esq. (Feldscott, Lee, Feinberg, Grant and Mayfield LLP) 2004 - Awarded to Janet Shipes (Adjuster – C.N.A. Insurance Company) 2005 - Awarded to Edward Martinet (Expert – MC Consultants) 2006 - Awarded to Hon. Victoria V. Chaney (Judge – Los Angeles Superior Court) 2007 - Awarded to Bruce Edwards, Esq. (Mediator) JAMS 2008 - Awarded to Gerald Kurland, Esq. (Mediator) JAMS 2009 - Awarded to Keith Koeller, Esq. (Koeller, Nebecker, Carlson and Haluck, LLP) 2010 - Awarded to Terry Wolcott – (Construction Defect Manager – Travelers Ins. Co.) 2011 - Awarded to George Calkins, Esq. (Mediator) JAMS 2012 - Awarded to Joyia Greenfield, Esq. (Lorber, Greenfield and Polito, LLP) 2013 - Awarded to Margee Luper (Claim Manager – XL Insurance Group) 2014 - Awarded to Matt Liedle, Esq. (Liedle, Lounsbery, Larson & Lidl, LLP) 2015 - Awarded to Robert A. Bellagamba, Esq. (Special Master/Mediator, Castle & Dekker) 2016 - Awarded to Lisa Unger, (Senior Claims Examiner, Global Management Liability Markel) 2017 - Awarded to Caryn Siebert, (Vice President, Claims, Knight Insurance Group) Read the court decision
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Topic 606: A Retrospective Review of Revenue from Contracts with Customers

October 12, 2020 — Christopher Sisk & Robert Mercado - Construction Executive
The anticipation has been building regarding implementation of the new revenue recognition standard, known as Topic 606, by private companies. Public companies have reported under Topic 606 since the beginning of 2019. For private companies, the time is now. As of January 2020, private companies became subject to Topic 606 for all entities with a year-end of Dec. 31, 2019, or subsequent. However, with the COVID-19 pandemic affecting businesses across the board, this year any company with a year-end financial statement not yet issued can defer implementation of Topic 606 until the contractors’ next year end that falls after Dec. 15, 2020. What have we learned about the impact of Topic 606, if any, on construction contractors’ financial statements? The most significant impact relates to the presentation of contract assets and contract liabilities, and the disclosures associated with Topic 606. The recording of what is known as “the cost to fulfill a contract” is another area that has been affected. PRESENTATION OF CONTRACT ASSET AND CONTRACT LIABILITY A contract asset is defined in Topic 606 as an entity’s right to consideration in exchange for goods or services the entity has transferred to a customer, conditional on something other than the passage of time. Reprinted courtesy of Christopher Sisk & Robert Mercado, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Sisk may be contacted at Christopher.sisk@marcumllp.com Mr. Mercado may be contacted at Robert.mercado@marcumllp.com Read the court decision
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Beyond Inverse Condemnation in Wildfire Litigation: An Oregon Jury Finds Utility Liable for Negligence, Trespass and Nuisance

July 10, 2023 — Marisa Miller, John Yacovelle & Kazim Naqvi - Sheppard Mullin
On June 10, 2023, a jury in Portland, Oregon found PacifiCorp and Pacific Power (collectively, “PacifiCorp”) liable for negligence, trespass, and nuisance based on a series of four wildfires that occurred during Labor Day weekend in 2020. PacifiCorp prevailed against the plaintiffs on the claim of inverse condemnation. With respect to the tort-based claims, the jury awarded approximately $72 million in compensatory damages to 17 plaintiffs. The jury later found PacifiCorp liable for $18 million in punitive damages, or one quarter of the compensatory damages that the jury awarded to the 17 plaintiffs. The jury’s liability findings apply to a broader class of owners, whose damages will need to be individually proven in a yet-to-be defined second phase of proceedings. Post-verdict motion practice and appeals may affect the jury’s findings. Reprinted courtesy of Marisa Miller, Sheppard Mullin, John Yacovelle, Sheppard Mullin and Kazim Naqvi, Sheppard Mullin Ms. Miller may be contacted at mmiller@sheppardmullin.com Mr. Yacovelle may be contacted at jyacovelle@sheppardmullin.com Mr. Naqvi may be contacted at knaqvi@sheppardmullin.com Read the court decision
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Commonwealth Court Holds That Award of Attorney's Fees and Penalties is Mandatory Under the Procurement Code Upon a Finding of Bad Faith

October 29, 2014 — William J. Taylor and Michael Jervis – White and Willams LLP
In a decision regarding a payment claim by a highway contractor against the City of Allentown, the Commonwealth Court of Pennsylvania has held that an award of attorney's fees and penalties is mandatory under the terms of the Pennsylvania Procurement Code, 62 Pa.C.S. § 3901 et seq., upon a finding of bad faith by the non-paying government agency, even though the statute only states that a court “may” award such fees and penalties. In A. Scott Enterprises, Inc. v. City of Allentown, Cmwlth. Ct. No. 2163 C.D. 2013, the plaintiff, A. Scott Enterprises, Inc. (Scott), won a contract with the City of Allentown (City) to construct a one mile roadway. Several weeks after commencing work, Scott learned that soil at the construction site was potentially contaminated with arsenic, and was instructed by the City to suspend its work. Because of the soil contamination, additional work would be required to complete the project and Scott submitted proposals for the additional work plus its suspension costs. However, the City never approved the additional work and the project was never completed. The City never paid Scott for costs incurred due to the suspension of the work and Scott filed suit to recover its losses. The jury found that the City had breached the contract with Scott and had acted in bad faith in violation of the Procurement Code, and awarded damages to Scott for its unreimbursed suspension costs. However, the trial court denied Scott’s request for an award of attorney's fees and penalty interest. Both Scott and the City appealed the final judgment to the Commonwealth Court, which reversed the trial court’s refusal to award attorney's fees and penalties. Reprinted courtesy of William J. Taylor, White and Williams LLP and Michael Jervis, White and Williams LLP Mr. Taylor may be contacted at taylorw@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com Read the court decision
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