Seattle Washington Building Expert Directory

The Value of Photographic Evidence in Construction Litigation

April 26, 2021 — Marie Mueller - Construction Executive
If a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts. The Value of Photographic Evidence in Construction Litigation Consider the following examples:

A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline.
A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.

Reprinted courtesy of Marie Mueller, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Mueller may be contacted at mmueller@verrill-law.com

Caveat Emptor (“Buyer Beware!”) Exceptions

May 10, 2021 — David Adelstein - Florida Construction Legal Updates
There is value to a seller when it comes to entering into an as-is transaction and stating that the seller has NOT made any representation or warranty, all such representations or warranties are disclaimed, the buyer is NOT relying on any representation of the seller, and that the buyer is relying on its own inspection of the property. This shifts the onus to the buyer to undertake the inspection or due diligence it needs to take relating to the property it wants to buy. With respect to commercial property transactions:

The doctrine of caveat emptor, which Florida courts continue to apply, “places the duty to examine and judge the value and condition of the property solely on the buyer and protects the seller from liability for any defects.” There are, however, three exceptions to this doctrine, including: “1) where some artifice or trick has been employed to prevent the purchaser from making independent inquiry; 2) where the other party does not have equal opportunity to become apprised of the fact; and, 3) where a party undertakes to disclose facts and fails to disclose the whole truth.” Florida Holding 4800, LLC v. Lauderhill Mall Investment, LLC, 46 Fla. L. Weekly D785b (Fla. 4th DCA 2021).

These three exceptions to caveat emptor, or the doctrine of buyer beware, are not easy to prove because it places a burden on a buyer to prove an active effort from the seller to conceal a material fact to skirt around the as-is language. Again, this is not an easy burden to prove. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Maintenance Issues Ignite Arguments at Indiana School

January 31, 2014 — Beverley BevenFlorez-CDJ STAFF
Students and faculty at Roosevelt College and Career Academy in Gary, Indiana have dealt with the building’s burst pipes since last year, however, the recent cold temperatures have worsened the issue, “disrupting classes and causing costly repairs,” according to the Post-Tribune. EdisonLearning now runs the school: “The state tapped the private, for-profit education management company for Roosevelt after six straight years of anemically low test scores.” The “lengthy agreement” between EdisonLearning and the school district states holds the district “responsible for major repairs and to maintain the building just like the other schools it runs.” “The money we were provided is for academic purposes, not for the operation of the building,” said Michael Serpe, spokesman for EdisonLearning told the Post-Tribune. “If you rent a home and the heat doesn’t work, you contact the landlord.” “If the building is monitored properly, we could stop these problems but we have to get to them earlier,” said Charles Prewitt, the district’s director of building, grounds and maintenance, as reported by the Post-Tribune. Prewitt added that part of the maintenance problems is lack of access. He alleges that “EdisonLearning changed the locks and provided a swipe card for only one door.” “There always seem to be reasons that things don’t get fixed at Roosevelt when they get fixed everywhere else,” Serpe retorted. Read the court decision
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Contractor Prevailing Against Subcontractor On Common Law Indemnity Claim

June 29, 2020 — David Adelstein - Florida Construction Legal Updates
Common law indemnity is not an easy claim to prove as the one seeking common law indemnity MUST be without fault: Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought. It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable. Brother’s Painting & Pressure Cleaning Corp. v. Curry-Dixon Construction, LLC, 45 Fla. L. Weekly D259b (Fla. 3d DCA 2020) quoting Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 492-93 (Fla. 1979). Not only must the one seeking common law indemnity be without fault, but there also needs to be a special relationship between the parties (indemnitee and common law indemnitor) for common law indemnification to exist. Brother’s Painting & Pressure Cleaning Corp., supra (citation omitted). A special relationship has been found to exist between a general contractor and its subcontractors. Id. at n.2. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Everybody Is Going to End Up Paying for Texas' Climate Crisis

March 29, 2021 — David R Baker & Mark Chediak - Bloomberg
Fallout from last month’s deadly deep freeze in Texas has quietly spread to people living hundreds of miles away. Minnesota utilities have warned that monthly heating bills could spike by $400, after the crisis jacked up natural gas prices across the country. Xcel Energy’s Colorado customers could face a $7.50 per month surcharge for the next two years. This is a subtle demonstration of the way Americans already share the collective financial burden of climate change, even if we don’t realize it. The national bill for global warming is here, and it’s rising. Perhaps it’s easier to see this dynamic playing out beyond February’s Texas cold snap. That disaster left dozens dead, stranded millions in dark homes, and sent a shockwave of higher gas prices across the nation. But since there remains scientific uncertainty over the role of global warming, let’s examine two other calamities for which the climate link is clearer: wildfires and tropical storms. Read the court decision
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Reprinted courtesy of David R Baker & Mark Chediak, Bloomberg

Settlement Reached in California Animal Shelter Construction Defect Case

May 13, 2014 — Beverley BevenFlorez-CDJ STAFF
A construction defect case involving an animal shelter in Healdsburg, California has settled after two years of litigation, according to The Press Democrat. The $3.5 million, 7,500-square foot building had been “built largely with a behest from the estate of the late vintner Rodney Strong and his wife, Charlotte.” However, “shortly before the facility could be completed in late 2011, general contractor Syd Kelly went bankrupt. Unpaid sub-contractors filed liens for payment against the Healdsburg Animal Shelter, which in turn alleged construction and design defects in the building.” The Press Democrat reported that “[t]he most visible signs of problems were cracks in the cement foundation.” Robert Wilkie, the Healdsburg Animal Shelter board’s secretary-treasurer, stated that the shelter is “perfectly structurally viable and a rather attractive building” and that “the defects that make it not usable today can be mitigated in a variety of different ways.” Read the court decision
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Surviving a Tornado – How to Navigate Insurance Claims in the Wake of the Recent Connecticut Storm

May 24, 2018 — Geoffrey Miller - Saxe Doernberger & Vita, P.C.
Five minutes after I parked my car, a tree fell on it. On Tuesday, May 15th I pulled into my driveway, in my small Connecticut neighborhood, under a grey sky. As soon as I walked in the house, the lights flickered. And then suddenly there was a loud “Crack!” and “Crash!” and the sound of breaking glass. I looked out the window and trees were bent 90 degrees, then snapping, and then flying up instead of falling down. As quickly as it came, it passed. When I stepped outside, my first thought was that my car has seen better days. Read the court decision
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Reprinted courtesy of Geoffrey Miller, Saxe Doernberger & Vita, P.C.
Mr. Miller may be contacted at gjm@sdvlaw.com

The International Codes Development Process is Changing to Continue Building Code Modernization

March 06, 2023 — The International Code Council
Washington D.C., March 02, 2023 (GLOBE NEWSWIRE) -- The International Code Council is revising its rigorous code development process. The changes will take effect in 2024-2026 for the development of the 2027 International Codes (I-Codes) and will move the development process to an integrated and continuous three-year cycle. In the new timeline, year one will include two Committee Action Hearings for Group A Codes; year two will include two Committee Action Hearings for Group B Codes; and year three will be the joint Public Comment Hearings and Online Governmental Consensus Vote for both Group A and B Codes. The addition of the second Committee Actions Hearings in year one and two will foster a more in-depth vetting of code change proposals, allowing an opportunity for the committee members to review and evaluate the original proposals and consider the submitted responses. This also provides more opportunity for proponents to build consensus for their code change proposal and ensure the best version of their intended improvement to the existing codes. Additionally, with combined Public Comment Hearings in the third year, voting members are able to vote on all suggested changes to the next edition of the I-Codes at one time. The updated process also provides more opportunity for proposed new referenced standards to be developed and finalized on a consistent timeline regardless of the group (Group A or B) with which they are associated. About the International Code Council The International Code Council is the leading global source of model codes and standards and building safety solutions. Code Council codes, standards and solutions are used to ensure safe, affordable and sustainable communities and buildings worldwide. Read the court decision
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