SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Design Professional Asserting Copyright Infringement And Contributory Copyright Infringement

May 01, 2019 — David Adelstein - Florida Construction Legal Updates
Standard form construction contracts between an owner and design profesional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.” An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design. Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on. While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story. “To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id. In the second prong, the design professional must establish that the defendant copied constituent elements that are original. Id. There is also a claim known as contributory copyright infringement. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dadelstein@gmail.com

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No Coverage for Contractor's Faulty Workmanship

July 10, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Kentucky Supreme Court determined there was no coverage for the contractor's faulty workmanship in digging the existing basement of a building to make it deeper. Martin v. Acuity, 2018 Ky. LEXIS 188 (Ky. April 26, 2018). Martin Elias/Properties, LLC (MEP) purchased an older home to renovate and resell for profit. MEP hired Tony Gosney to renovate and expand the basement. Gosney agreed to dig the existing basement deeper, pour new footers and pour a new concrete floor. While performing his work, Gosney failed to support the existing foundation adequately before digging around it. Within days, the old foundation began to crack and eventually the entire structure began to sag. Gosney stopped work and notified his insurer, Acuity. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Eleventh Circuit Finds No Coverage for Faulty Workmanship Claims

November 15, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit affirmed the district court's grant of summary judgment to the insurer on the general contractor's claims for damages due to faulty workmanship. Tricon Dev. of Brevard v. Nautilus Ins. Co., 2021 U.S. App. LEXIS 27317 (11th Cir. Sept .10, 2021). Tricon was the general contractor for a condominium project in Florida. Tricon hired a subcontractor to fabricate and install metal railings for the project. The subcontractor was insured by Nautilus under two CGL policies. The policies had endorsements to add Tricon as an additional insured. The subcontractor fabricated some of the railings, but they had defects and damage. Further they were not installed properly and did not meet the project's specifications. Tricon found another manufacturer to fabricate new railings to satisfy the projects' requirements. Tricon agreed to pay the cost of removing the subcontractor's railings and fabricating and installing new ones. If submitted a claim to Nautilus to cover these costs. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
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Chinese Lead $92 Billion of U.S. Home Sales to Foreigners

July 09, 2014 — John Gittelsohn – Bloomberg
Foreigners purchased $92.2 billion of U.S. homes in the 12 months through March, led by buyers from China, according to the National Association of Realtors. Spending by Chinese buyers soared 72 percent from a year earlier to $22 billion, with their purchases accounting for 24 percent of spending by international buyers, the trade association said today from Washington. Total investments by foreigners jumped 35 percent. Chinese buyers acquired 16 percent of houses sold to foreigners, up 4 percentage points, spurred by currency appreciation, rising affluence and concerns about an economic slowdown in the world’s most-populous country, the group said. Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

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Florida Federal Court to Examine Issues of Alleged Arbitrator Conflicts of Interests in Panama Canal Case

May 24, 2021 — Sarah B. Biser & Philip Z. Langer - ConsensusDocs
The parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal are raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida.[2] The case may address rarely litigated issues concerning whether arbitrators who sit on multiple arbitration panels together or who support appointment of each other to lead arbitration panels have disabling conflicts of interest. The case pits Grupo Unidos por el Canal, S.A. (“Grupo”), a consortium of Spanish, Italian, Belgian, and Panamanian construction firms, against Autoridad del Canal de Panama (“ACP”), the Panamanian entity that operates the Panama Canal and that sponsored the multi-billion-dollar, decade-long project to expand the Canal’s capacity by building a new set of locks (the “Project”). The current dispute (the “Panama 1 Arbitration”), which centers on the suitability of the rock coming from the excavations to be used to produce concrete aggregates for the Project, was arbitrated before a three-member ICC Tribunal and resulted in a $238-million award to ACP and against Grupo. The ICC Tribunal reversed a decision of the dispute review board established in the parties’ contract. Reprinted courtesy of Sarah B. Biser, Fox Rothschild LLP and Philip Z. Langer, Fox Rothschild LLP Ms. Biser may be contacted at sbiser@foxrothschild.com Mr. Langer may be contacted at planger@foxrothschild.com Read the court decision
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Court of Appeal: Privette Doctrine Does Not Apply to Landlord-Tenant Relationships

March 20, 2023 — Garret Murai - California Construction Law Blog
We’ve talked a fair bit about the Privette doctrine which provides for a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. We’ve also talked about its two exceptions: (1) The Hooker exception which provides for liability if the hirer retained control over the work being performed, negligently exercised that control, and its negligent exercise of that control contributed to an employee’s injury; and (2) the Kinsman exception which provides for liability if the hirer knew or should have known of a concealed hazard, that the hired party did not know of and could not have reasonably discovered, and the hirer failed to warn the hired party of the hazard. The Privette doctrine is not the end all be all of landowner liability, however, as discussed in Ramirez v. PK 1 Plaza 580 SC LP, 85 Cal.App.5th 252 (2022). Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Portion of Washington State’s Prevailing Wage Statute Struck Down … Again

July 04, 2023 — Brett Hill & Mason Fletcher - Ahlers Cressman & Sleight
In 2018, the Washington Legislature amended its prevailing wages statute adopting S.S.B 5493 and codified as RCW 39.12.015(3). RCW 39.12.015(3) changed how the Washington State Department of Labor and Industries’ industrial statistician set the prevailing wages for employees on public works projects, from a county-by-county basis to a “geographic jurisdiction” basis established in collective bargaining agreements (“CBA”) or if multiple CBAs, the CBA with the higher wage would prevail. This change proved problematic for contractors since it allowed a minority of employees to determine the prevailing wage through side agreements and limited meaningful wage negotiations by industry trade groups. Contrary to the previous rule wherein wages were set by the average or majority wage rate in a certain county (which was normally the collectively bargained wage) and provided some flexibility to the industrial statistician in determining the prevailing wage, now, RCW 39.12.015(3)(a) directs the industrial statistician to “establish the prevailing rate of wage by adopting the hourly wage … paid for the geographic jurisdiction established in [CBAs],” removing flexibility, and requiring the inclusion of CBA (which could encompass multiple counties) wage rates as a part of the prevailing wage formula. Reprinted courtesy of Brett Hill, Ahlers Cressman & Sleight and Mason Fletcher, Ahlers Cressman & Sleight Mr. Hill may be contacted at brett.hill@acslawyers.com Mr. Fletcher may be contacted at mason.fletcher@acslawyers.com Read the court decision
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