SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Final Furnishing Date is a Question of Fact

November 10, 2016 — David Adelstein – Florida Construction Legal Updates
Construction liens need to be recorded within 90 days from the lienor’s final furnishing date on the project. This date is exclusive of punchlist or warranty work. The final furnishing date needs to be proven at trial to establish that the construction lien was timely recorded. If there is an evidentiary dispute as the final furnishing date (the contractor claims the date was “x” to establish the lien was timely and the owner claims the date was “y” to establish the lien was untimely), then the date is a question of fact to be determined by the jury. For instance, in Best Drywall Services, Inc. v. Blasczyk, 2016 WL 6246701 (Fla. 2d DCA 2016), a contractor and owner entered into an oral agreement for a residential renovation project. The contractor recorded a construction lien after its final two invoices went unpaid. During trial, the contractor offered conflicting evidence as to when its final furnishing date on the project was. Numerous dates were offered in the record including dates that were more than 90 days prior to the date the contractor recorded its lien, meaning the lien was arguably untimely. As a result, the trial judge entered a directed verdict in favor of the owner and against the contractor on the contractor’s lien claim finding the lien was untimely recorded. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

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South Carolina Clarifies the Accrual Date for Its Statute of Repose

March 18, 2019 — William L. Doerler - The Subrogation Strategist
In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640,[1] to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence. In Ocean Winds Corp. of Johns Island v. Lane, 556 S.E.2d 377 (S.C. 2001), the Supreme Court of South Carolina addressed the question of whether § 15-3-640 ran from substantial completion of the installation of the windows at issue or on substantial completion of the building as a whole. Citing § 15-3-630(b),[2] the court found that the windows “were ‘a specified area or portion’ of the larger condominium project” and, upon their incorporation into the larger project they could be used for the purpose for which they were intended. Thus, the court held that “the statute of repose began running when installation of the windows was complete.” Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Axa Buys London Pinnacle Site for Redesigned Skyscraper

February 26, 2015 — Dalia Fahmy and Patrick Gower – Bloomberg
(Bloomberg) -- Axa Real Estate Investment Managers, the property unit of Europe’s largest insurer, has bought the London site of the halted Pinnacle skyscraper and plans to build a tower of its own design. The building at 22 Bishopsgate will have more than 1 million square feet (93,000 square meters) of offices, shops and restaurants, the Paris-based company said in a statement Friday. It’s paying 300 million pounds ($460 million) for the property, according to a person with knowledge of the matter who asked not to be identified because the information is private. Reprinted courtesy of Dalia Fahmy, Bloomberg and Patrick Gower, Bloomberg Read the court decision
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Limiting Liability: Three Clauses to Consider in your Next Construction Contract

June 25, 2019 — Tara Lynch - Gordon & Rees Construction Law Blog
In your next contract, consider including some (or all!) of the following clauses to limit your liability and maximize your profits. Waiver of Consequential Damages While a proven breach of contract will leave a design professional or contractor exposed to direct or compensatory damages, a waiver of consequential damages will help “stop the bleeding” and protect the design professional or contractor from paying every damage that might flow from the breach. Consequential damages include those damages which indirectly flow from the breach of contract, for example, lost rents, lost profits, lost use, lost opportunity, loss of employee productivity, and damages to reputation. The American Institute of Architects (AIA) has included a mutual waiver of consequential damages in its sample A201 for over 20 years. The AIA provision includes a definition of consequential damages which are waived, including many of the examples cited above. However, the AIA waiver of consequential damages clause carves out an exception for liquidated damages to the owner. Prudent design professionals and contractors will strike this exception so as not to render the clause meaningless. A well-drafted waiver clause will be mutual, will define which damages are consequential versus direct, and will not contain exceptions. Read the court decision
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Reprinted courtesy of Tara Lynch - Gordon & Rees Scully Mansukhani
Ms. Lynch may be contacted at tlynch@grsm.com

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Did Deutsche Make a Deal with the Wrong Homeowner?

September 03, 2014 — Beverley BevenFlorez-CDJ STAFF
Deutsche Bank wants “to void a loan modification it claims resulted in a $125,000 discount on the wrong homeowners' outstanding mortgage,” according to the New Jersey Law Journal. Furthermore, even though the Deutsche Bank “obtained a default judgment a year ago… a New Jersey federal judge is currently considering the homeowners' motion to vacate it, most recently ordering a hearing to determine whether the couple was properly served.” According to the complaint, the Deutsche Bank claims that “its mortgage servicer, Ocwen Loan Servicing, mistakenly offered the modification to Lorraine and Raymond Lindsey of Franklinville, N.J., though the terms of the deal were intended for other homeowners in connection with a loan held by a different bank.” Read the court decision
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Res Judicata Not Apply to Bar Overlapping Damages in Separate Suits Against Contractor and Subcontractor

November 06, 2023 — David Adelstein - Florida Construction Legal Updates
Can the doctrine of res judicata bar an owner’s claim against the general contractor after the owner also sued and obtained a satisfied judgment against the subcontractor when there are identical, overlapping damages pursued in separate lawsuits. A recent case says, not really. In Pickell v. Lennar Homes, LLC, 48 Fla.L.Weekly D2037a (Fla. 6th DCA 2023), a homeowner sued a homebuilder and the homebuilder’s mechanical subcontractor in separate lawsuits. The claims and damages asserted in the separate lawsuits were substantially identical. The homeowner obtained a judgment against the mechanical subcontractor which was satisfied (i.e., paid). The homebuilder tried to use this as a get-out-jail-free card and claimed the homeowner was barred from suing it under the doctrine of res judicata based on overlapping claims and damages.

“To successfully assert a defense of res judicata, a party must prove four “identities”: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Pickell, supra (citation omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Construction Company Head Pleads Guilty to Insurance and Tax Fraud

December 20, 2012 — CDJ STAFF
The former head of Orients Construction Company and of Melrose Construciton Company, Herlindo Garcia-Merlos, has entered a guilty plea to charges that the gave false informoation to his insurer, New Jersey Manufacturers Insurance Group, for more than three years in order to lower his workers compensation payments. Mr. Garcia-Merlos was able to underpay by more than $315,000 as a result of this deception. Mr. Garcia-Merlos additionally failed to file tax returns for his companies and underreported his wages on his own tax returns. The State of New Jersey is seeking an eight-year prison term and restitution of more than $400,000. Read the court decision
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Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts

November 13, 2023 — Hal Baker - Colorado Construction Litigation Blog
In a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential. The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided: Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature. Read the court decision
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Reprinted courtesy of Hal Baker, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Baker may be contacted at baker@hhmrlaw.com

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