Seattle Washington Building Expert Directory

The Great Fallacy: If Builders Would Just Build It Right There Would Be No Construction Defect Litigation

January 21, 2015 — David McLain – Colorado Construction Litigation
As the 2015 Colorado legislative session gets into full swing, there is a lot of anticipation and discussion regarding this year’s construction defect reform bill. It seems like every time a reporter broaches this issue in an article, there is a quote from a plaintiffs’ attorney stating that if builders would just build homes right, there would be no need for construction defect litigation. This is the sentiment expressed in the site www.BuildOurHomesRight.com. The problem with this argument is that it assumes that the “construction defects” for which associations sue are those only that affect the performance of the homes, or are likely to affect the performance of the homes during the useful life of the component at issue. Unfortunately, this is simply not the case. Over the years, the plaintiffs’ bar has stacked the deck, so to speak, making actionable every technical building code violation, regardless of whether it has any impact, or will ever likely have any impact, on the performance of the homes involved. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Managing Partner Jeff Dennis Recognized as One of the Most Influential Business People & Opinion Shapers in Orange County

November 17, 2016 — Newmeyer & Dillion LLP
NEWPORT BEACH, Calif. – Nov 15th, 2016 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that managing partner Jeff Dennis was selected as one of the 500 most influential business people and opinion shapers in Orange County by the Orange County Business Journal (OCBJ). Dennis will be recognized in OCBJ’s inaugural issue, OC500, publishing November 14, 2016. Located in the Newport Beach office, Dennis currently serves as the Firm’s Managing Partner and specializes in a variety of litigation arenas, including construction, real estate and business litigation. He also handles insurance and higher education matters. Tom Newmeyer, Newmeyer & Dillion’s Co-founding Partner, believes the award is representative of the leadership displayed by Dennis. “Jeff is an uncanny consensus builder, and you can see his steady hand in the firms’ growth and success. This recognition is a testament to his strong commitment to the community and his ability to facilitate innovative changes in Orange County.” Dennis believes that community participation is a vital part of his law practice. He currently serves on the Executive Leadership Team for the American Heart Association’s Orange County Heart Walk. Under Dennis’ leadership, the firm proudly supports the OC Heart Walk, with over 150 participants joining Team N&D in 2016. As such, he volunteered to serve in the Orange County District Attorney’s selective Trial Advocacy Partnership (TAP) program. He is the past president of the Occidental College Board of Governors and helped lead Occidental’s Alumni Association as its former Orange County Regional Chair. About Newmeyer & Dillion For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com. Read the court decision
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Construction Defect Headaches Can Be Avoided

February 21, 2013 — CDJ STAFF
Construction defect claims can be an avoidable headache, if builders apply some forethought. Mark J. Peschel of Johnson & Lindberg, a Bloomington, Minnesota law firm, points out that simply says that windows should be weatherproofed by appropriate flashing, without any guidance on accomplishing that. He notes that “builders tend not to know the weatherproofing code provisions as well as they should.” Another lawyer, Eric S. Hayes of Brown and Carlson in St. Louis Park extends this, “it’s not just the building codes that need to be followed, but also the standards in the industry.” Hayes notes that another way builders can avoid headaches is by being proactive. “I often hear, once things have gone sour and moved toward litigation, that the homeowner contacted the contractor a dozen times about a leaking basement and nothing was done, so they were forced to sue.” His advice for builders: “Don’t let it fester.” Read the court decision
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Prime Contractor & Surety’s Recovery of Attorney’s Fees in Miller Act Lawsuit

February 02, 2017 — David Adelstein - Florida Construction Legal Updates
Can a claimant recover attorney’s fees in a Miller Act payment bond dispute even though the Miller Act does not contain a prevailing party attorney’s fee provision? Yes, if the underlying contract that formed the basis of the suit provided for attorney’s fees. What about a prime contractor and surety—can they recover their attorney’s fees if they prevail in a Miller Act payment bond claim and the underlying contract provides a basis for fees? The Eleventh Circuit Court of Appeals in U.S.A. f/u/b/o RMP Capital Corp. v. Turner Construction Co., 2017 WL 244066 (11th Cir. 2017) seemingly just answered this question in the affirmative when it reversed a lower court’s ruling that precluded a prime contractor and surety that prevailed in a Miller Act claim from recovering their attorney’s fees[.] Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Contractor’s Assignment of Construction Contract to Newly Formed Company Before Company Was Licensed, Not Subject to B&P 7031

October 04, 2021 — Garret Murai - California Construction Law Blog
Add one more to the Business and Profession Code section 7031 archives. In Manela v. Stone, Case No. B302660 (July 1, 2021), the 2nd District Court of appeal held that Section 7031 did not apply to a contractor licensed as a sole proprietor who assigned his contract to his newly formed company although at the time of the assignment the contractor’s individual contractor’s license had not yet been reissued to the incorporated company. The Manela Case On January 4, 2015, John Stone doing business as Stone Construction Company entered into a home remodeling contract with Yosef and Nomi Manela. At the time, Stone had held a contractor’s license since 1982. On February 11, 2015, after work on the project had begun, Stone formed JDSS Construction Company, Inc., and filed a fictitious business name using the same name Stone Construction Company. Stone applied to the Contractors State License Board to have his contractor’s license issued from himself personally to his new corporation. On March 15, 2015, while waiting for the CSLB to reissue his contractor’s license, Stone entered into an assignment agreement between himself and his new company assigning the Manela construction contract. The assignment agreement was signed by Stone in his personal capacity and as President of JDSS Construction. The assignment agreement was not signed by the Manelas. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Overview of New Mexico Construction Law

June 25, 2019 — Walter F. Crowson - Snell & Wilmer Under Construction Blog
We’ve seen an uptick in out-of-state companies working on construction projects in New Mexico. The following is an overview of some of the nuances of New Mexico construction law about which companies may want to be aware. Construction Contract Issues Limitation of Liability Clauses are usually Enforceable, but Anti-Indemnity Clauses Are Not New Mexico courts have enforced limitation of liability clauses included in construction contracts. See Fort Knox Self Storage, Inc. v. W. Techs., Inc., 140 N.M. 233, 237 (N.M. Ct. App 2006). New Mexico law recognizes the difference between contracts that insulate a party from any and all liability and those that simply limit liability. Fort Knox Self Storage, Inc., 140 N.M. 233 at 237. An exculpatory clause immunizes a party from liability, whereas a limitation of liability clause merely curtails liability. Id. A limitation of liability clause has been held not to violate New Mexico public policy because the party “still bears substantial responsibility for its actions.” Id.; see also Cowan v. D'Angelico, 2010 WL 11493789, *6 (D. N.M. Apr. 26, 2010). Read the court decision
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Reprinted courtesy of Walker F. Crowson, Snell & Wilmer
Mr. Crowson may be contacted at wcrowson@swlaw.com

The New York Lien Law - Top Ten Things You Ought to Know

December 23, 2023 — Ralph E. Arpajian - White and Williams LLP
Over the course of my career, I have had the privilege of working with and representing numerous construction lenders (and borrowers/developers) in the financing of some of the largest commercial projects in the United States. A number of these projects have been in New York, where one encounters the New York Lien Law (the “Lien Law”). Many of my clients, particularly those lenders, borrowers, and their counsel, located outside of New York, are often perplexed by my advice regarding the Lien Law and the loan structuring requirements which result. In the hope that it would be helpful (especially for non-New York counsel), I have compiled a “top ten” list outlining, in my view, the most critical (and most perplexing) aspects of structuring New York construction loans under the Lien Law. Read the court decision
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Reprinted courtesy of Ralph E. Arpajian, White and Williams LLP
Mr. Arpajian may be contacted at arpajianr@whiteandwilliams.com

Attorney Risks Disqualification If After Receiving Presumptively Privileged Communication Fails to Notify Privilege Holder and Uses Document Pending Privilege Determination by Court

May 03, 2017 — David W. Evans & Stephen J. Squillario - Haight Brown & Bonesteel LLP
In McDermott Will & Emery LLP v. Superior Court (4/18/2017 – No. G053623), the Fourth Appellate District, in a 2-1 decision, considered two distinct issues: 1. Whether the attorney-client privilege for a confidential e-mail communication between a client and his attorney had been waived by the client’s inadvertent disclosure of the communication to a third party; and 2. Whether the opposing counsel’s failure to respect the claimed privilege as to the inadvertently produced document or to follow the rules for handling such documents set forth in State Compensation Ins. Fund v WPS, Inc. (1999) 70 Cal.App.4th 644 (State Fund) supported the trial court’s disqualification of counsel and his law firm. This case arose from an intra-family dispute over the deceased matriarch’s substantial investment holdings, a related probate matter, and two subsequent legal malpractice actions. The opinion sets forth in great detail the facts surrounding the claimed inadvertent disclosure by the client (i.e., the privilege holder) of the subject attorney-client e-mail communication, its subsequent dissemination to, and use by, the client’s family members, the ultimate receipt and review by an opposing family member’s counsel, the efforts by the client’s counsel to assert the privilege and “claw-back” the document, and in the face of this privilege claim, the opposing counsel’s extensive use of the document during discovery, including depositions, in the legal malpractice actions. The opposing counsel, who had received the subject document from his own client, had independently concluded that the clearly privileged document lost its privileged status, believing that the privilege had been waived either because of disclosure to third parties or that his obligation to return inadvertently disclosed documents only applied to those produced in litigation during discovery. As a result, the opposing counsel refused all demands for the return or destruction of the document and insisted upon continuing to use it. This dispute finally came to a head over two years after the client’s disclosure in the context of the client’s motion for a judicial determination that the document was privileged (which the trial court granted) and then a motion to disqualify the opposing counsel (which the trial court also granted); both decisions were eventually reviewed by the appellate court. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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