SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Pennsylvania’s Supreme Court Limits The Scope Of A Builder’s Implied Warranty Of Habitability

September 10, 2014 — Edward A. Jaeger, Jr. and William L. Doerler – White and Williams LLP
In Conway v. Cutler Group, Inc., -- A.3d --, 2014 WL 4064261 (Pa.), the Supreme Court of Pennsylvania addressed the question of whether a subsequent home buyer can recover from a home builder pursuant to the builder’s implied warranty of habitability, a warranty that protects those who purchase a newly constructed home from latent defects. Concluding that a builder’s warranty of habitability is grounded in contract, the Court held that a subsequent purchaser of a previously inhabited home cannot recover damages from a builder-vendor based on the builder-vendor’s breach of the implied warranty of habitability. The Court’s decision leaves unanswered the question of whether a purchaser who is also the first user-purchaser of a new home can pursue a breach of warranty action against a builder with whom the purchaser is not in privity of contract. In Conway, the Cutler Group, Inc. (Cutler) sold a new home to Davey and Holly Fields. The Fields subsequently sold the home to Michael and Deborah Conway. After the Conways discovered water infiltration problems in their home, they filed a one-count complaint against Cutler, alleging that Cutler breached its implied warranty of habitability. In response to the Conways’ complaint, Cutler filed preliminary objections, arguing that the warranty of habitability extends from the builder only to the first purchaser of a newly constructed home. The trial court sustained Cutler’s preliminary objections based on the lack of contractual privity between the parties and the Conways appealed the trial court’s decision. On appeal, the Superior Court reversed, stating that the implied warranty of habitability is based on public policy considerations and exists independently of any representations by the builder, and even in the absence of an express contract between the builder and the purchaser. Cutler appealed the Superior Court’s decision to the Supreme Court. To address the question of whether the implied warranty of habitability extends to a subsequent purchaser of a used residence, the Court discussed the history of the implied warranty of habitability in Pennsylvania. As stated by the Court, the Court adopted the implied warranty of habitability in the context of new home sales to reject the traditional doctrine of caveat emptor (buyer beware) because the purchaser of a new home justifiably relies on the skill of the developer. Thus, as between the builder-vendor and the buyer, the builder should bear the risk that the home he builds is habitable and functional. In adopting the doctrine, the Court noted that the doctrine is rooted in the existence of a contract – an agreement of sale – between the builder-vendor and the buyer. Reprinted courtesy of Edward A. Jaeger, Jr., White and Williams LLP and William L. Doerler, White and Williams LLP Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com; Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com Read the court decision
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Triple Points to the English Court of Appeal for Clarifying the Law on LDs

July 01, 2019 — Vincent C. Zabielski & Julia Kalinina Belcher - Gravel2Gavel
Can an employer recover liquidated damages (LDs) from a contractor if the contract terminates before the contractor completes the work? Surprisingly, heretofore, English law provided no clear answer to this seemingly straightforward question, and inconsistent case law over the past century has left a trail of confusion. Given the widespread use of English law in international construction contracts, this uncertainty had gone on far too long. The good news is that drafters of construction contracts throughout the world can now have a well-deserved good night’s sleep courtesy of the English Court of Appeal’s March 2019 decision in Triple Point Technology, Inc. v PTT Public Company Ltd [2019] EWCA Civ 230. The Triple Point case concerned the delayed supply by Triple Point (the “Contractor”) of a new software system to employer PTT. The contract provided for payments upon achievement of milestones, however order forms incorporated into the contract set out the calendar dates on which fixed amounts were payable by PTT, resulting in an apparently contradictory requirements on when payment was due. Triple Point achieved completion (149 days late) of a portion of the work milestones, and were paid for that work. Triple Point then sought payment for the work which was not yet completed, relying on the calendar dates in the order forms rather than achievement of milestone payments. Things got progressively worse as PTT refused payment, Triple Point suspended the work for PTT’s failure to pay, PTT terminated the contract and then appointed a new contractor to complete the work. Reprinted courtesy of Vincent C. Zabielski, Pillsbury and Julia Kalinina Belcher, Pillsbury Mr. Zabielski may be contacted at vincent.zabielski@pillsburylaw.com Ms. Belcher may be contacted at julia.belcher@pillsburylaw.com Read the court decision
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Hurricane Warning: Florida and Southeastern US Companies – It is Time to Activate Your Hurricane Preparedness Plan and Review Key Insurance Deadlines

November 01, 2022 — Andrea DeField, Walter J. Andrews, Michael S. Levine, Lawrence J. Bracken II & Cary D. Steklof - Hunton Insurance Recovery Blog
Hurricane Ian is rapidly approaching the west coast of Florida and is expected to make landfall as a Category 4 hurricane near the Tampa area within the coming days. While the exact track is still being determined, there is a chance the storm may also impact insureds in Georgia and South Carolina. Now is the time to activate your disaster plan and ensure that you have your relevant insurance policies in your possession and that you review them for critical deadlines. We put together an alert here with tips to help you and your business mitigate potential storm loss and maximize coverage. Reprinted courtesy of Andrea DeField, Hunton Andrews Kurth, Walter J. Andrews, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth, Lawrence J. Bracken II, Hunton Andrews Kurth and Cary D. Steklof, Hunton Andrews Kurth Ms. DeField may be contacted at adefield@HuntonAK.com Mr. Andrews may be contacted at wandrews@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Bracken may be contacted at lbracken@HuntonAK.com Mr. Steklof may be contacted at csteklof@HuntonAK.com Read the court decision
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Digital Twins for a Safer Built Environment

November 24, 2019 — Cristina Savian - AEC Business
As a native of Turin Italy, I was horrified at the Ponte Morandi bridge collapse last year. As a child and as an adult I have travelled over that bridge more times than I can imagine and have often pondered the what-if scenarios. What if it had happened when I or my loved ones were travelling on that bridge? As a chartered construction professional, I ask myself, what could have been done, what should have been done and what can we do to prevent this from happening in the future? Having access to a digital twin with an integrated understanding of the way the bridge was designed, built and performed over the last 50 years and being able to run “what if” scenarios would have allowed us to have a much greater understanding of the structure and its limitations in its context. This is where I believe a digital twin of any built asset is a step in the right direction. The digital twin has been proclaimed by many as a milestone innovation in the construction industry, with huge benefits to constructors and owners of assets through efficiencies in manufacturing and operation but also to attracting users of the spaces they replicate. However, digital replicas can take a broad range of forms depending on its purpose, use and application sparking debates among professionals on what they actually are and what represents a ‘true’ twin. Read the court decision
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Reprinted courtesy of Cristina Savian, AEC Business

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San Francisco Bucks U.S. Trend With Homeownership Gains

September 24, 2014 — Prashant Gopal – Bloomberg
Homeownership climbed in a small number of U.S. metropolitan areas last year including San Francisco; Nashville, Tennessee; and Austin, Texas, where strong job growth helped them buck the national trend. Of 100 metropolitan areas, 17 had an increase in the “true” ownership rate, which measures the number of owner-occupied households per 100 adult residents, according to an analysis by Trulia Inc. of Census Bureau data. Even in those areas, advances were small. San Francisco had the biggest gain in 2013, rising about 0.6 percentage points from a year earlier, the property-information company said today. The Gary, Indiana, region, made up mostly of suburbs, had a similar increase. The homeownership rate has been falling in much of the U.S. as incomes stagnate and rising prices make housing less affordable and more difficult to finance for entry-level buyers. The regions where the rate is up include strong job markets such as San Francisco and Austin, and areas with stable prices such as Albany, New York, that were spared the brunt of the nationwide foreclosure crisis, Trulia said. Read the court decision
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Reprinted courtesy of Prashant Gopal, Bloomberg
Mr. Gopal may be contacted at pgopal2@bloomberg.net

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Save A Legal Fee? Sometimes You Better Talk With Your Construction Attorney

May 10, 2012 — Douglas Reiser, Builders Council Blog

I love writing this column, because I think it’s refreshing for contractors to hear that they don’t always need an attorney. Today’s post is the “Un-Save a Legal Fee” because I want to point out a specific illustration of when you definitely need your attorney. Using a construction contract template can be fine, but you always need to consider its application to each project ? or it could bite you in the rear.



Seattle attorney Paul Cressman published a prime depiction of bad contract management, last week. A Florida appellate court struck down a general contractor’s “pay if paid” clause when it became ambiguous because of some incorporated language from its prime contract. Specifically, a clause in the prime contract required the general contractor to pay all subcontractors before receiving payment from the owner, while the general contractor’s “pay if paid” clause required its subcontractors to wait for payment until it arrived from the owner.



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Real Estate & Construction News Roundup (1/16/24) – Algorithms Affect the Rental Market, Robots Aim to Lower Construction Costs, and Gen Z Struggle to Find Their Own Space

February 12, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, New York’s Prompt Payment Act comes into question, vacancy rates rise in commercial office space, the Biden administration applies project labor agreements on certain federal construction projects, and more!

• The Biden administration announced the implementing on an executive order that will require project labor agreements on federal construction projects costing $35 million or more, likely resulting in PLAs being required on a majority of large federal jobs. (Zachary Phillips, Construction Dive)
• Boeing plans to increase quality inspections of its 737 Max 9 aircraft, following a series of manufacturing flaws that have led some airlines to hold off aircraft purchases or go with its European rival, Airbus. (Ken Sweet, AP)
• 31% of Generation Z (generally defined as those born between 1996 and 2012) adults live at home with parents because they can’t afford to buy or rent their own space. (Jessica Dickler, CNBC)

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NY Appellate Court Holds Common Interest Privilege Applies to Parties to a Merger

January 07, 2015 — Jay Shapiro, Lori S. Smith and Brittney Edwards – White and Williams LLP
The common interest privilege is a doctrine that operates to maintain the confidentiality of communications between parties and counsel that have aligned interests. It is designed to encourage the free flow of information between these parties, and has historically been utilized primarily in the context of litigation. However, in Ambac Assurance Corp., et al. v. Countrywide Home Loans, Inc., et al., the New York Supreme Court, Appellate Division, First Department recently expanded the common interest privilege by holding that it is applicable in transactional contexts. 2014 WL 6803006, No. 651612/10 (1st Dep’t 2014). The Ambac court defined the common interest doctrine as “a limited exception to waiver of the attorney-client privilege” when a third party is present during a communication between an attorney and his or her client. The doctrine shields such communications from disclosure when they are (1) protected by the attorney client privilege and (2) “made for the purpose of furthering a legal interest or strategy common to the parties.” Until Ambac, New York courts touched on, but never squarely addressed, whether a third requirement must be satisfied before the common interest doctrine can be invoked: “that the communication must affect pending or reasonably anticipated litigation.” The Ambac court addressed and rejected this purported third requirement while reversing the decision of the trial court which found that defendant Bank of America failed “to cite any New York case that applied the common-interest doctrine outside of either joint-representation of two parties by one attorney, or where parties reasonably anticipated litigation.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Jay Shapiro, Lori S. Smith and Brittney Edwards Mr. Shapiro may be contacted at shapiroj@whiteandwilliams.com Ms. Smith may be contacted at smithl@whiteandwilliams.com Ms. Edwards may be contacted at edwardsb@whiteandwilliams.com Read the court decision
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