Supreme Court of Washington State Upholds SFAA Position on Spearin Doctrine
September 13, 2021 —
Peter Roth – The Surety & Fidelity Association of AmericaSeptember 9, 2021 (WASHINGTON, DC) –
The Surety & Fidelity Association of America (SFAA) commends the decision of The Supreme Court of The State of Washington to reverse the lower court ruling in the case of Lake Hills Investments, LLC vs. Rushforth Construction Co. As argued by SFAA, the Supreme Court found the contractor should not be responsible for damage caused by the defective design provided by the owner even where the contractor was responsible for certain defective work. In addition, the contractor is not completely barred from asserting this defense if the defects were caused by a combination of deficient performance by the contractor and deficient design, and proportional liability should be determined.
The SFAA, along with the National Electrical Contractors Association Puget Sound Chapter (NECA), Mechanical Contractors Association of Western Washington (MCAWW) and SMACNA-Western Washington (SMACNA), issued an Amici Curiae in support of Petitioner AP Rushforth Construction Co., Inc. d/b/a AP Rushforth, and Adolfson & Peterson, Inc.’s (collectively “AP”) Petition for Discretionary Review. In the brief they argued the Court should grant the Petition because the decision by the lower court is contrary to precedent of limiting a contractor’s liability when the owner’s defective plans and specifications caused the defective work, and upsets settled expectations of allocation of risk and liability between contractors, owners and architects (among others) on construction projects. This allocation of risk and the principle of limiting the contractor’s liability for defective work based on defective plans and specifications is long settled doctrine in Washington State and throughout the country, a doctrine based on the US Supreme Court’s landmark decision in U.S. vs. Spearin more than 100 years ago.
The Surety & Fidelity Association of America (SFAA) is a trade association of more than 425 insurance companies that write 98 percent of surety and fidelity bonds in the U.S. SFAA is licensed as a rating or advisory organization in all states and it has been designated by state insurance departments as a statistical agent for the reporting of fidelity and surety experience. www.surety.org
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Peter Roth, SFAAMr. Roth may be contacted at
proth@surety.org
National Infrastructure Leaders Visit Dallas' Able Pump Station to Tout Benefits of Water Infrastructure Investment
September 25, 2023 —
American Society of Civil EngineersDALLAS, TX. — An award-winning pump station in south downtown Dallas that protects residents from the Trinity River today was showcased by the
national Engineering and Public Works Roadshow as an example of how infrastructure investment can improve the resilience of a community, protect residents, and encourage economic growth.
The Able Pump Station in downtown Dallas, Texas won awards from both the American Council of Engineering Companies and the American Society of Civil Engineers since its completion in 2019 and has been credited with providing 100-year flood protection to approximately three square miles of high-profile land that was historically vulnerable to severe flooding events from the Trinity River.
The Engineering and Public Works Roadshow is a joint project of the
American Council of Engineering Companies (ACEC), the
American Public Works Association (APWA), and the
American Society of Civil Engineers (ASCE).
The properties adjacent to the previous Able sump complex had experienced frequent flooding. The sump complex included nine separate and interconnected ponds that store stormwater, as well as two existing pump stations, constructed in the 1930s and 1950s, with a combined capacity of 220,000 gallons per minute. To help prevent the loss of life as a result of flooding, the City of Dallas hired HDR to design the new Able Pump Station, which increases the pumping capacity nearly fourfold, to 875,000 gallons per minute. It also lowers the 100-year flood elevation from 399.0 to a design elevation of 392.5 feet.
As the federal government continues to implement this monumental legislation, the second year of the Bipartisan Infrastructure Law will not be fully realized without an expanded and robust workforce. It is imperative that students nationwide are educated on the rewarding careers of civil engineering and public works so that these professions have the necessary staffing to complete transformative projects.
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Missouri Legislature Passes Bill to Drastically Change Missouri’s “Consent Judgment” Statute
August 10, 2021 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn June 29, 2021, Missouri Governor Mike Parson signed SB-HB 345 into law, which will drastically change Section 537.065 of the Missouri Revised Statutes. Section 537.065 provides an insured who has been denied insurance coverage a statutory mechanism to settle certain tort claims through an agreement akin to a consent judgment. Typically referred to as a “065 Agreement,” the statute allows a plaintiff and insured-tortfeasor to settle a claim for damages and specify which assets are available to satisfy the claim, typically the tortfeasor’s available insurance policy. In the past, such agreements were often accomplished without the insurer’s participation or even its knowledge. Under such agreements, the insured-tortfeasor assigns all rights to the insurance policy to the plaintiff and agrees not to contest the issues of liability or damages. In exchange the plaintiff agrees not to execute any judgment against the insured. The parties conduct what amounts to an uncontested and often “sham” trial resulting in a judgment far in excess of any actual damages or applicable policy limits had the case been contested. In a subsequent proceeding to collect on the judgment, the tortfeasor’s insurer is bound by the determinations of liability and damages made in the underlying action.
This statutory framework presented plenty of opportunities for abuse. In 2017, the statute was amended in order to address some of those issues, including a requirement that the insured provide notice of a settlement demand under Section 065 and providing insurers a limited right to intervene in the tort action before liability and damages have been determined. Ostensibly, the intent of the 2017 amendments was to reduce the number of large and uncontested judgments and allow the insurance carrier an opportunity to continue litigating the injured party’s claim where the insured has no incentive or is contractually prohibited from doing so. Yet, creative plaintiff’s attorneys found several “loopholes” around these changes, most prominently, by moving their disputes from state court to binding arbitration and dispensing with notice to the insurer altogether, or at least until after the arbitration has concluded.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
What You Need to Know About CARB’s In-Use Off-Road Diesel Regulations
May 20, 2024 —
Garret Murai - California Construction Law BlogIn November 2022, the California Air Resources Board (CARB) approved amendments to . . . wait for it . . . its “In-Use Off-Road Diesel-Fueled Fleet” regulations – that enough hyphens for you – which took effect on January 1, 2024. The purpose of the regulations is to reduce emissions from off-road equipment, many of which are used by construction contractors, such as forklifts, bulldozers, cranes and excavators.
Are these new regulations?
Yes and no. CARB has regulated in-use off-road diesel-fueled vehicles since 2008 and has periodically amended these regulations. The most recent amendments take effect on January 1, 2024.
What vehicles do the regulations apply to?
The regulations apply to two classes of vehicles (1) self-propelled off-road diesel-fueled vehicles of 25 horsepower (hp) or more; and (2) two-engine vehicles other than on-road two-engine sweepers. The regulations apply to both owned as well as rented and leased vehicles. As used in this article, the term “vehicle(s)” refers to these two classes of vehicles.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
DA’s Office Checking Workers Comp Compliance
February 10, 2012 —
CDJ STAFFThe San Bernardino office of the California District Attorney is partnering with the California Contractor’s State License Board to check if subcontractors are holding the required workers compensation insurance. The High Desert Daily Press reports that the process of checking at sites has been going on for several months.
Investigators visit sites and ask supervisors to provide a list of subcontractors which the state then checks for compliance. One worker was quoted that insurance inspections were so rare that he had never seen one before, despite 20 years in construction.
On one day, investigators in two teams visited fourteen construction sites and reviewed the insurance status of twenty-two firms. Three were found out of compliance and stop work orders were issued.
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FEMA Administrator Slams Failures to Prepare, Evacuate Before Storms
October 23, 2018 —
Christopher Flavelle - BloombergFederal Emergency Management Agency Administrator Brock Long angrily criticized the failure of citizens to heed evacuation warnings and leaders to better prepare for natural disasters such as Hurricane Michael.
"It's frustrating to us because we repeat this same cycle over and over again," Long said during a press briefing Friday at FEMA headquarters in Washington. "If you want to live in these areas, you've got to do it in a more resilient fashion."
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Christopher Flavelle, Bloomberg
Build Back Better Includes Historic Expansion of the Low-Income Housing Tax Credit Program
December 20, 2021 —
James M. Grosser & David W. Wright - Gravel2Gavel Construction & Real Estate Law BlogOn November 19, 2021, the U.S. House of Representatives passed the Build Back Better Act (H.R. 5376), a bill that represents a large portion of the Biden-Harris Administration’s agenda. Among other spending and tax measures, the bill includes an unprecedented expansion of the Low-Income Housing Tax Credit (LIHTC) program. Four proposals are headlining this expansion:
- Increasing the 9% LIHTC allocation cap by 10% plus inflation annually from 2022 to 2024. With this increase, the 2024 LIHTC allocation cap will rise to $3.97 per capita and a small state minimum of around $4.58 million, constituting a 41 percent increase in allocable LIHTC over current levels. The allocation cap would then decrease to $2.65 per capita and a small state minimum of $3.12 million in 2025 and would thereafter be indexed to inflation from the 2025 baseline.
- Reducing the 50% threshold for 4% tax-exempt bond-financed projects to 25% for five years, beginning in 2022.
Reprinted courtesy of
James M. Grosser, Pillsbury and
David W. Wright, Pillsbury
Mr. Grosser may be contacted at james.grosser@pillsburylaw.com
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Exclusion for Construction of Condominiums Includes Faulty Construction of Retaining Wall
August 04, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe exclusion for suits arising out of construction of condominiums encompassed the underlying claim for faulty construction of a retaining wall. HT Serv., LLC v. Western Heritage Ins. Co., 2021 U.S. App. LEXIS 16259 (10th Cir. June 1, 2021).
HT Services was a land developer. HT Services designed and constructed a residential community. The AOAO sued HT Services for negligent design and construction of a retaining wall. When its carrier, Western Heritage Insurance Company, denied coverage, HT Services sued. The district court granted summary judgment to Western.
The exclusion eliminated coverage for claims or suits "arising out of, relating to or in any way connected with 'your operations' . . . involving the development [or] construction . . . of . . . condominiums . . . or . . . residential structures." HT Services argued that a retaining wall was not a "residential structure."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
