Seattle Washington Building Expert Directory

The Right to Repair Act (Civ.C §895 et seq.) Applies and is the Exclusive Remedy for a Homeowner Alleging Construction Defects

February 07, 2018 — Craig Wallace – Smith Currie
McMillin Albany LLC v. Superior Court (01.18.18) ____ Cal.4th _____ (2018 WL 456728) The California Supreme Court confirmed that the Right to Repair Act (CA Civil Code § 895, et seq. and often referred to by its legislative nomenclature as “SB800”) applies broadly to any action by a residential owner seeking recovery of damages for construction defects, regardless of whether such defects caused property damages or only economic losses. This includes the right in the Act of the builder to attempt repairs prior to the owner filing a lawsuit. Background Homeowners sued builder for construction defects. Included in their causes of action was a cause of action for violation of the Right To Repair Act. The Act requires that before filing litigation, a homeowner must give the builder notice and engage in a nonadversarial prelitigation process which gives the builder a right to repair the defects. The builder asked the court to stay the homeowners’ action so the prelitigaiton process could be undertaken. Rather than give the builder the repair right, the homeowners dismissed the particular cause of action from their case, leaving only other so-called common law and warranty causes of action. The common law claims sought recovery for property damage caused by the defects. The builder nonetheless asked to the Court to stay the action so it could exercise its right to repair. The trial court, relying on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, denied builder’s request to stay the action. The Liberty Mutual Court concluded that certain common law construction defect claims fell outside the purview of the Act. Builder appealed. The Court of Appeal disagreed with Liberty Mutual, so did not follow it, granted the builder’s request for a stay, and directed that the homeowners afford the builder the right to repair the claimed defects as provided under the Act. The California Supreme Court affirmed, disapproving Liberty Mutual and the subsequent cases relying on it. Read the court decision
Read the full story...
Reprinted courtesy of Craig Wallace, Smith Currie
Mr. Wallace may be contacted at swwallace@smithcurrie.com

DC Circuit Rejects Challenge to EPA’s CERCLA Decision Regarding Hardrock Mining Industry

September 23, 2019 — Anthony B. Cavender - Gravel2Gavel
In a decision that will likely be welcomed by the electrical power, chemical manufacturing, and petroleum and coal products manufacturing industries, on July 19, 2019, the U.S. Court of Appeals for the District of Columbia Circuit held in the case of Idaho Conservation League et al., v. Wheeler, that EPA acted reasonably in deciding not to issue CERCLA financial responsibility regulations for the hardrock mining industry. CERCLA (a.k.a., Superfund) was enacted in 1980 and amended in 1986, and Section 108(b) of CERCLA provides that EPA shall promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility “consistent with the degree and duration of risk” associated with the production, transportation, treatment, storage or disposal of hazardous substances. However, no action was taken to implement Section 108(b) until 2009, and then only as the result of litigation challenging EPA’s failure to act. EPA and the petitioners agreed to a schedule by which the agency would propose financial responsibility rules for the hardrock mining industry—which was the initial class of industry facilities selected for the possible application of these rules—and the DC Circuit approved this schedule in 2016, which contained the court’s caveat that EPA retained the discretion not to issue any rule at the conclusion of the rulemaking. Read the court decision
Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Floors Collapse at Russian University in St. Petersburg

February 27, 2019 — The Associated Press - Bloomberg
St. Petersburg, Russia (AP) -- Part of the roof and several floors of university building in Russia's second-largest city collapsed Saturday, but officials say there were no casualties. The Emergencies Ministry said the collapse at the Saint Petersburg National Research University of Information Technologies, Mechanics and Optics took place as construction work was underway. An investigation into criminal violation of construction safety has been opened. Read the court decision
Read the full story...
Reprinted courtesy of The Associated Press, Bloomberg

Breach of a Construction Contract & An Equitable Remedy?

September 22, 2016 — David Adelstein – Florida Construction Legal Updates
In payment or collection-type lawsuits, the party suing for money sometimes asserts a claim for unjust enrichment or quantum meruit as an alternative equitable remedy to a breach of contract claim. Frankly, sometimes a party will do this as a means to throw everything against the wall hoping something, just something, sticks. However, if there is a contract by and between the parties, equitable claims such as unjust enrichment or quantum meruit will invariably fail. They will fail because a party cannot circumvent a contract simply because their recourse may prove better under an equitable theory. It doesn’t work like that! And, it should not! Read the court decision
Read the full story...
Reprinted courtesy of David M. Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Conn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect Statute

June 14, 2021 — Christy Jachimowski - Lewis Brisbois
Section 13a-149 of the Connecticut General Statutes, commonly known as Connecticut’s highway defect statute, provides that claims arising from injuries or damages to people or property resulting from a defective road or bridge can be asserted against a party responsible for maintaining that road or bridge. Conn. Gen. Stat. §13a-149. The statute also extends to sidewalks and further provides that written notice of an alleged injury must be given to a defendant municipality within ninety days of the injury. Recently, in Dobie v. City of New Haven, 2021 Conn. App. LEXIS 162 (App. Ct. May 1, 2021), the Connecticut Appellate Court overturned the trial court’s denial of a municipal defendant’s post-trial motion to dismiss. The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy. Since the plaintiff failed to meet the requisite notice requirements, pursuant to the statute, the Appellate Court held that the trial court erred in denying the municipality’s motion to dismiss for lack of subject matter jurisdiction. The Underlying Case In February of 2013, Plaintiff William Dobie filed suit against the City of New Haven alleging injuries and damages as a result of the negligence of a City of New Haven snowplow operator. Dobie’s claims arose from an incident that occurred on January 21, 2011, in which he was driving behind the City snowplow driver, who was in the process of plowing snow from a municipal street located in New Haven, Connecticut. As the defendant employee was operating his snowplow, he knocked off a manhole cover, causing Dobie’s vehicle to drive over the open manhole. Dobie claimed personal injuries as a result of his vehicle dropping into the open manhole, including injuries to his jaw. Read the court decision
Read the full story...
Reprinted courtesy of Christy Jachimowski, Lewis Brisbois
Ms. Jachimowski may be contacted at Christy.Jachimowski@lewisbrisbois.com

Draft Federal Legislation Reinforces Advice to Promptly Notify Insurers of COVID-19 Losses

April 20, 2020 — James Hultz - Newmeyer Dillion
Insurers across the country are nearly universally denying claims for business interruption stemming from the COVID-19 pandemic. Those denials have in turn been met with swift litigation and potential legislative action. The first business interruption coverage lawsuit related to COVID-19 was filed in New Orleans on March 16. There are now no less than 13 such cases nationwide and many more are likely to follow. Further, legislatures in at least seven states are considering legislation that would, to varying degrees, mandate business interruption coverage for COVID-19 losses, notwithstanding any seemingly contrary policy provisions. From the early stages of the pandemic, we have consistently advised our clients to promptly notify their insurers of all COVID-19 related losses, even where coverage appeared uncertain. The deluge of coverage litigation and contemplated legislation could drastically alter how insurers handle COVID-19 claims. But policyholders who have failed to satisfy policy notice requirements could miss out on the benefits of those changes. Therefore, policyholders would be ill-advised to sit on the sidelines and wait it out. Now, draft Federal legislation appears to add further impetus to instructions to “tender early.” The contemplated “Pandemic Risk Insurance Act of 2020” would reportedly devote billions of dollars of federal funds through a Department of Treasury administered reinsurance program designed to offset losses sustained by insurers who actually pay business interruption losses. The legislation is still taking shape but would reportedly create “a Federal program that provides for a transparent system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease.” President Trump is also reportedly pressuring insurers to provide business interruption coverage. The massive influx of federal funds and pressure from the White House could encourage insurers to reconsider denials of COVID-19 business interruption claims. Read the court decision
Read the full story...
Reprinted courtesy of James Hultz, Newmeyer Dillion
Mr. Hultz may be contacted at james.hultz@ndlf.com

Just How Climate-Friendly Are Timber Buildings? It’s Complicated

February 12, 2024 — Eric Roston - Bloomberg
This article is part of the Bloomberg Green series Timber Town, which looks at the global rise of timber as a low-carbon building material. The number of people living in urban areas around the world will swell by upwards of 2 billion over the next three decades. Many of those people will need new homes. But building those with conventional materials would unleash a gusher of carbon dioxide: Concrete, steel, glass and bricks for construction make up a combined 9% of global CO2 emissions, according to research by the United Nations Environment Program. Enter engineered wood, a seemingly no-brainer solution. Mass timber is not the typical lumber that has structured single-family houses in North America for decades. The wood components are strong enough to hold up an office tower or apartment block, and building with them is thought to emit much less CO2 than using standard materials. And since wood is about 50% carbon, the material itself even stores a little carbon, to boot. Read the court decision
Read the full story...
Reprinted courtesy of Eric Roston, Bloomberg

A Court-Side Seat: Permit Shields, Hurricane Harvey and the Decriminalization of “Incidental Taking”

May 31, 2021 — Anthony B. Cavender - Gravel2Gavel
This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks. THE U.S. SUPREME COURT On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission. Carr, et al. v. Saul In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take some time to resolve this question for every agency. AMG Capital Management v. Federal Trade Commission In this case, the court held, unanimously, that the Commission does not presently have the authority to employ such equitable remedies as restitution or disgorgement. Read the court decision
Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES