Seattle Washington Building Expert Directory

Contracts and Fraud Don’t Mix (Even for Lawyers!)

August 24, 2020 — Christopher G. Hill - Construction Law Musings
In prior posts here at Construction Law Musings, I have discussed how fraud and contracts are often like oil and water. While there are exceptions, these exceptions are few and far between here in Virginia. The reason for the lack of a mix between these two types of claims is the so-called “source of duty” rule. The gist of this rule is that where the reason money is owed from one party to another (the source of the “duty to pay”) is based in the contract, Virginia courts will not allow a fraud claim. The rule was created so that all breaches of contract, claims that are at base a failure to fulfill a prior promise and could, therefore, be considered to be based on a prior “lie,” would not be expanded to turn into tort claims. This rule has been extended to claims that most average people (read, non-lawyers) would consider fraud because there was no intent to fulfill the contract at the time it was signed. Just so you don’t think that lawyers are exempt from this legal analysis, I point you to a recent case where a law firm sued a construction client of theirs for failure to pay legal fees. In EvansStarrett PLC v. Goode & Preferred General Contracting, the Fairfax County Circuit Court considered a motion by the Plaintiff law firm seeking to add a count of fraud to its breach of contract lawsuit. The Court considered the following facts. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

The Moving Finish Line: Statutes of Limitation and Repose Are Not Always What They Seem

June 01, 2020 — Kenneth E. Rubinstein & Nathan Fennessy - Construction Executive
Having an end date for risk is important to construction professionals who need to know when they can close their books and destroy files relating to old projects. While professionals typically look to the statute of limitations and repose, these deadlines can sometimes be harder to determine than one might think. State Laws Prohibiting Alteration of Statutes of Limitation Many contractors seek to control the extent of their risk by negotiating the length of their liability period. In some instances, contractors may seek to shorten the statute of limitations to protect against stale claims. While in other instances, owners periodically negotiate for longer periods to ensure that they will not be time barred from pursuing valid claims. While the majority of states enforce such contractual provision, a number of states hold such clauses unenforceable. In these instances, the state’s original statute of limitations will apply regardless of what the contract says. Reprinted courtesy of Kenneth E. Rubinstein & Nathan Fennessy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Rubenstein may be contacted at krubinstein@preti.com Mr. Fennessy may be contacted at nfennessy@Preti.com Read the court decision
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Study Finds Construction Cranes Vulnerable to Hacking

May 20, 2019 — Jeff Rubenstone - Engineering News-Record
When securing a jobsite against malicious hackers, most go to protect computer files, and few look up and worry about the tower cranes. But many cranes—whether tower, mobile or industrial—can be remotely run via radio wireless controllers, a useful feature for when operators need a clearer view of the load from the ground. Unfortunately, these wireless signals are vulnerable to hijacking, according to a study released earlier this year by security research firm Trend Micro. It found that the radio signals these crane controllers use are not encrypted over the air in any way, and can be easily intercepted and spoofed using off-the-shelf equipment and a basic knowledge of electronics and radio engineering. Read the court decision
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Reprinted courtesy of Jeff Rubenstone, ENR
Mr. Rubenstone may be contacted at rubenstonej@enr.com

Architects and Engineers Added to Harmon Towers Lawsuit

February 12, 2013 — CDJ STAFF
Since the beginning of the Harmon Towers construction defect lawsuit, it has been CityCenter making claims against Perini, the property owner against the builder. CityCenter now has a new legal team, and with it apparently a new strategy. The Las Vegas Review Journal reports that papers were filed in court on February 8, adding the architect and the engineer as defendants in the case. According to the filings, the engineering firm Halcrow Yolles should have noticed during inspections that parts of the building’s steel skeleton were improperly installed and should have been repaired. Instead these structures were encased in concrete. CityCenter also contends that there were deficiencies in Halcrow’s blueprints. AAI Architects has been named because its contract made it responsible for Halcrow’s work. Perini has contended that some problems at the building were due to bad plans and therefore not their responsibility. They have claimed that they can fix the building for $20 million, of which $4 million would be due to their actions. Read the court decision
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Ohio Rejects the Majority Trend and Finds No Liability Coverage for a Subcontractor’s Faulty Work

December 11, 2018 — Shannon M. Warren - The Subrogation Strategist
In Ohio N. Univ. v. Charles Constr. Servs., 2018 Ohio LEXIS 2375 (No. 2017-0514, October 9, 2018), the Supreme Court of Ohio was recently called upon to determine if a general contractor’s Commercial General Liability (CGL) insurance policy provided coverage for defective work completed by its subcontractor. Rejecting the majority trend, the court held that, because the subcontractor’s faulty work was not an “occurrence” caused by an accident – i.e. a fortuitous event – within the meaning of the contractor’s CGL policy, the insurer did not have to defend or indemnify the contractor with respect to the plaintiff’s claims. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

Can a Receiver Prime and Strip Liens Against Real Property?

September 20, 2021 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Courts overseeing receivers generally enjoy broad discretion in directing and approving a receiver’s proposed actions. But does that authority extend to a receiver not only granting a super-priority lien ahead of existing liens, but also selling the real property free and clear of all liens? In County of Sonoma v. Quail, 56 Cal.App.5th 657 (Ct. App. 2020), the California Court of Appeals answered that question in the affirmative. Quail involved a 47,480 square-foot lot with two houses, a few garages, several outbuildings, and numerous trailers surrounded by a veritable junk yard. Despite many of these structures being uninhabitable, unsanitary, and dangerous, multiple families resided on the lot. Although Sonoma County (the “County”) ordered the owner to remediate the property several times, he failed and refused to do so. After several years of these violations going unabated, the County ultimately sought and obtained the appointment of a receiver over the real property. To obtain funds necessary to repair the property, the receiver asked the court for permission to borrow money through the issuance of a receivership certificate to be secured by a super-priority lien—i.e., a lien ahead of all other liens—against the real property. Although the trial court initially declined to prime existing liens, when the receiver could find no one to lend money (since the land lacked equity), the trial court relented and approved a super-priority lien despite the senior secured lender’s objection (the “lender”). Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

Trends: “Nearshoring” Opportunities for the Construction Industry

July 22, 2024 — Jerry P. Brodsky & Roberto Hernandez - Peckar & Abramson, P.C.
“Nearshoring” is a hot topic throughout Latin America and is receiving increasing attention in the United States. We offer this introduction to “Nearshoring” and the opportunities it presents for your reference. “Nearshoring” has become increasingly relevant in the context of the globalized economy. This phenomenon describes relocating production and service operations to countries geographically close to consumer markets, instead of opting for more distant locations as in traditional “offshoring”, considering, as dominant criteria, production conditions and costs. Mexico, for example, given its strategic geographic closeness to the United States and its highly skilled labor force, is an attractive location for companies in a wide range of industries which are considering relocation or construction of new facilities and seeking to optimize costs, maintain efficiency and mitigate supply chain risks. Reprinted courtesy of Jerry P. Brodsky, Peckar & Abramson, P.C. and Roberto Hernandez, Peckar & Abramson, P.C. Mr. Brodsky may be contacted at jbrodsky@pecklaw.com Read the court decision
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Fourth Circuit Holds that a Municipal Stormwater Management Assessment is a Fee and Not a Prohibited Railroad Tax

April 22, 2019 — Anthony B. Cavender - Gravel2Gavel
On February 15, the U.S. Court of Appeals for the Fourth Circuit decided Norfolk Southern Railway Co. v. City of Roanoke, et al.; the Chesapeake Bay Foundation was an Intervenor-Defendant. The Fourth Circuit held that a large stormwater management fee (stated to be $417,000.00 for the year 2017) levied by the City of Roanoke against the railroad to assist in the financing of the City’s permitted municipal stormwater management system was a permissible fee and not a discriminatory tax placed on the railroad. The Railroad Revitalization and Regulatory Reform Act of 1976 specifically provides that states and localities may not impose any tax that discriminates against a rail carrier, 49 U.S.C. § 11501. Accordingly, the issue confronting the Fourth Circuit was whether the assessment was fee and not a tax. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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