Seattle Washington Building Expert Directory

Fixing the Problem – Not the Blame

November 30, 2016 — Curtis W. Martin – Peckar & Abramson, P.C. Bulletin
Who is responsible for defective design under Texas law? The contractor, under Lonergan? The owner, under Spearin? A recent Fifth Circuit decision suggests that in some cases this might be the wrong question when design responsibility is disputed. The appellate court recently remanded a case back to the district court to determine whether the contractor or owner breached an implied duty to cooperate in discovering defects in design and subsequently pricing the change required to correct the problem. Read the court decision
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Reprinted courtesy of Curtis W. Martin, Peckar & Abramson, P.C.
Mr. Martin may be contacted at cmartin@pecklaw.com

Housing to Top Capital Spending in Next U.S. Growth Leg: Economy

September 24, 2014 — Shobhana Chandra – Bloomberg
Bruce Hottle’s $10,000 computer systems upgrade in February at his Pennsylvania concrete plant may be his last investment for another two years. More than 1,100 miles south in suburban Miami, Maggie Cruz-Ledon and her husband have set a 2015 deadline to buy a house, upping their budget in the process. Hottle’s and Cruz-Ledon’s plans represent a sneak peek into the next leg of the expansion. Housing and business capital spending, two areas closely tied to swings in the world’s largest economy, are poised to diverge as home construction gives growth more of a boost in the long run while investment in new plants and equipment shows less promise, according to economists at Goldman Sachs Group Inc. and Morgan Stanley. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg
Ms. Chandra may be contacted schandra1@bloomberg.net

Guidance for Structural Fire Engineering Making Its Debut

February 02, 2017 — Nadine M. Post - Engineering News-Record
The International Code Council has approved—as expected—the updated structural building-design standard, written by the American Society of Civil Engineers Structural Engineering Institute, for inclusion in the 2018 edition of the ICC’s model International Building Code. ICC’s validation committee certified “ASCE/SEI 7-16: Minimum Design Loads and Associated Criteria for Buildings and Other Structures,” and ICC’s board of directors confirmed it late last month, says Mike Pfeiffer, ICC’s senior vice president, technical services. Read the court decision
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Reprinted courtesy of Nadine M. Post, ENR
Ms. Post may be contacted at postn@enr.com

“But it’s 2021!” Service of Motion to Vacate Via Email Found Insufficient by the Eleventh Circuit

June 21, 2021 — Justin K. Fortescue - White and Williams
While we are all getting used to the “new normal” of working remotely and relying on emails for almost all communications, a recent decision from the United States Court of Appeals for the Eleventh Circuit provides arbitration practitioners with a stark reminder – the “notice” requirements of the Federal Arbitration Act (FAA) will be strictly enforced and providing notice of a motion to vacate via email may not qualify as proper service. In O'Neal Constructors, LLC v. DRT Am., LLC, 991 F.3d 1376 (11th Cir. 2021), O’Neal Constructors, LLC (O’Neal) and DRT America (DRT) entered into a contract containing an arbitration provision. Following a dispute, the parties went to arbitration and, on January 7, 2019, the panel issued an award requiring DRT to pay O’Neal a total of $1,415,193. The amount awarded to O’Neal consisted of two parts: $765,102 for the underlying contract dispute and $650,090 for reimbursement of O’Neal’s attorneys’ fees. While DRT paid O’Neal the first portion of the award, DRT refused to pay the portion that related to O’Neal’s attorneys’ fees. On April 4, 2019, as a result of DRT’s refusal to pay O’Neal’s attorneys’ fees, O’Neal filed a motion to confirm the award in Georgia state court (which was subsequently removed to the Northern District of Georgia). The next day, in a separate action, DRT filed a motion to vacate the attorneys’ fees portion of the award and, that same night, DRT’s counsel emailed O’Neal’s counsel a “courtesy copy” of DRT’s memorandum in support of the motion to vacate. A few weeks later, on April 30, 2019 (i.e., more than three months after the award was issued), DRT served O’Neal (via U.S. Marshall) with a copy of the motion to vacate. Read the court decision
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Reprinted courtesy of Justin Fortescue, White and Williams
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com

Another Reminder that Contracts are Powerful in Virginia

February 08, 2021 — Christopher G. Hill - Construction Law Musings
Regular readers of this construction law blog are likely tired of my refrain that the contract is king here in Virginia. With few exceptions, some of which have been passed in the last few years, the contract can and does essentially set the “law” for the transaction. A recent opinion from the 4th Circuit Court of Appeals confirms this principle. In Bracey v. Lancaster Foods, LLC, the Court looked at the question as to whether parties can contractually limit the statute of limitations in which a plaintiff or arbitration claimant can file its claim for relief. In Bracey, Michael Bracey, a truck driver, sued his former employer, Lancaster Foods, asserting various employment law claims. Lancaster moved to dismiss and compel arbitration based on the terms of an alternative dispute resolution agreement Bracey signed when he was hired, under which he consented to arbitration of any employment-related claim and waived all rights he may otherwise have had to a trial. Bracey challenged the arbitration clause, one that also included a 1-year limitation on the time in which Bracey was allowed to file any claim, as unconscionable. A federal judge in Maryland agreed and granted the motion to dismiss. 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

Difference Between a Novation And A Modification to a Contract

May 10, 2022 — David Adelstein - Florida Construction Legal Updates
In contract law, there are two doctrines that have similarities but are indeed different. These doctrines are known as novation and modification. There are times you may want to make arguments relative to these doctrines because they are important for your theory of the dispute. Thus, you want to make sure you understand them so you can properly plead and prove the required elements to substantiate the basis of the theories. Understanding the elements will help you understand the evidence you will need to best prove your factual theories. A novation is essentially substituting a new contract for an old contract.

“‘A novation is a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation.’” Thompson v. Jared Kane Co., Inc., 872 So.2d 356, 361 (Fla. 2d DCA 2004) (citation omitted). To prove a novation, a party must prove four elements: “(1) the existence of a previously valid contract; (2) the agreement of the parties to cancel the first contract; (3) the agreement of the parties that the second contract replace the first; and (4) the validity of the second contract.” Id. at 61. Whether the parties consented to the substitute contract can be implied from the factual circumstances. Id.

Parties are more familiar with a modification because it is not uncommon that parties may agree to modify contractual terms. The contract remains in effect but certain terms or obligations are modified. For example, a change order to a contract is a modification. 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

Justice Didn’t Ensure Mortgage Fraud Was Priority, IG Says

March 19, 2014 — Tom Schoenberg and Phil Mattingly – Bloomberg
The U.S. Justice Department failed to pursue mortgage fraud in the years following the 2008 financial crisis with the same level of commitment that it publicly touted, an internal watchdog said. While Attorney General Eric Holder said mortgage-fraud cases were among the department’s top priorities, the Federal Bureau of Investigation internally ranked them the lowest of six criminal threats, according to a report released today by Inspector General Michael Horowitz. The FBI devoted fewer resources to such cases even though Congress allocated $196 million for fiscal years 2009 to 2011 to pursue such conduct. The Justice Department has been criticized by lawmakers and judges for not bringing more criminal cases against individuals following the collapse in housing prices and ensuing market turmoil. In August, Holder retracted a public statement after Bloomberg News reported that the department had inflated its track record of mortgage-fraud prosecutions. Mr. Schoenberg may be contacted at tschoenberg@bloomberg.net; Mr. Mattingly may be contacted at pmattingly@bloomberg.net Read the court decision
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Reprinted courtesy of Tom Schoenberg and Phil Mattingly, Bloomberg

COVID-19 Is Not Direct Physical Loss Or Damage

April 13, 2020 — Joseph Blyskal, Dennis Brown & Michelle Bernard - Gordon & Rees Insurance Coverage Law Blog
Is a cash register that is not being used damaged property? When you need to wash a table, a chair, or a section of flooring with readily available cleaning products to make them safe and useable, are you repairing damaged property? Is a spilled cup of coffee waiting to be wiped up actual damage to the premises? If your customers stay home to help stop the spread of a virus, has there been a physical loss inside your shuttered store or restaurant? The insuring agreements typically found in commercial property insurance policies require “direct physical loss of or damage to” covered property as the triggering event. Without establishing direct physical loss or damage a policyholder cannot meet its burden to trigger coverage for a purely economic loss of business income resulting from shuttering its business due to concerns over exposure to—or even the actual presence of—COVID-19. Despite this well-understood policy language, it is already beyond question that insurers will confront creative—albeit strained—arguments from policyholder firms attempting to trigger coverage for pure economic loss. The scope of the human and economic tragedy we all face will be matched by the scope of the effort to force the financial harm onto insurance companies. The plaintiffs in what appears to be the first-filed case seeking a declaratory judgment in the context of first-party insurance coverage rely on the assertion that “contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces” of its establishment, a New Orleans restaurant, to trigger coverage for business interruption.[1] See Cajun Conti, LLC, et. al. v. Certain Underwriters at Lloyd’s, London, et. al. Civil District Court for the Parish of Orleans, State of Louisiana. The complaint alleges that the property is insured under an “all risk policy” defining “covered causes of loss” as “direct physical loss.” The plaintiffs rely on the alleged presence of the virus on “the surface of objects” in certain conditions and the need to clean those surfaces. They go so far as to claim that “[a]ny effort by [the insurer] to deny the reality that the virus causes physical damage and loss would constitute a false and potentially fraudulent misrepresentation. . . .” Reprinted courtesy of Gordon & Rees attorneys Joseph Blyskal, Dennis Brown and Michelle Bernard Mr. Blyskal may be contacted at tblatchley@grsm.com Mr. Brown may be contacted at dbrown@grsm.com Ms. Bernard may be contacted at mbernard@grsm.com Read the court decision
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