Seattle Washington Building Expert Directory

Design Professional Asserting Copyright Infringement And Contributory Copyright Infringement

May 01, 2019 — David Adelstein - Florida Construction Legal Updates
Standard form construction contracts between an owner and design profesional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.” An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design. Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on. While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story. “To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id. In the second prong, the design professional must establish that the defendant copied constituent elements that are original. Id. There is also a claim known as contributory copyright infringement. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dadelstein@gmail.com

Florida Lien Law and Substantial Compliance vs. Strict Compliance

April 20, 2017 — David Adelstein - Florida Construction Legal Updates
There are literally some (or, perhaps, many!) disputes that will make you say “hmm!” The “hmm” is a euphemism for “what is a party thinking?!?” The case of Trump Endeavor 12 LLC v. Fernich, Inc., 42 Fla. L.Weekly D830a (Fla. 3d DCA 2017) is one of these cases because a party (the owner) is banking its defense on a technical “all-or-nothing” argument pertaining to whether a lienor (a supplier) substantially complied with Florida’s Lien Law because a supplier’s Notice to Owner identified the wrong general contractor. This is a challenging argument because the owner has to prove how they were adversely affected / prejudiced by the lack of substantial compliance, which is not an easy burden. This case concerns the Trump National Doral Miami project. The project consisted of a lodge project and a separate clubhouse project, both of which had different general contractors. On the lodge project, the general contractor hired a painter which, in turn, procured paint from a supplier (the lienor). The supplier visited the project and obtained the Notice of Commencement from the owner so that it could perfect its lien rights. The owner furnished the supplier the Notice of Commencement for the clubhouse project that had a different general contractor. Relying on this Notice of Commencement, the supplier served a Notice to Owner. The Notice to Owner was timely serviced however it identified the wrong contractor – it identified the general contractor for the clubhouse project instead of the lodge project. Although the supplier later learned there was a different general contractor on the lodge project, it did not remedy the issue by serving a Notice to Owner on the correct contractor. Indeed, the contractor for the lodge project learned of the Notice to Owner furnished by the supplier and that the supplier was furnishing paint to the painting subcontractor for purposes of that project. 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

Inability to Confirm Coverage Supports Setting Aside Insured’s Default Judgment on Grounds of Extrinsic Mistake

January 21, 2019 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel LLP
In Mechling v. Asbestos Defendants (No. A150132, filed 12/11/18), a California appeals court affirmed the trial court’s grant of an insurer’s motion to set aside default judgments entered against its defunct insured pursuant to the trial court’s inherent, equitable power to set aside defaults on the ground of extrinsic mistake, thereby allowing the insurer to intervene and defend its own interests in the case. In Mechling, Fireman’s Fund insured Associated Insulation of California, which was named as a defendant in asbestos litigation filed in 2009. Associated had ceased operating in 1974, but was somehow successfully served with the complaint and defaulted, leading to default judgments of several million dollars. Notice of the judgments was served on Associated but not Fireman’s Fund. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Rulemaking to Modernize, Expand DOI’s “Type A” Natural Resource Damage Assessment Rules Expected Fall 2023

December 23, 2023 — Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law Blog
The U.S. Department of the Interior (DOI) anticipates proposing a new rule that would revise its “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in Fall 2023. The proposed rule would modernize DOI’s rarely used simplified Type A procedures for assessing damages for natural resource injuries tailored at sites involving minor releases of hazardous substances, with a smaller scale and scope of natural resource injury occurring in either coastal and marine areas or Great Lakes environments (the “Type A Rule”). (See 88 Fed. Reg. 3373; see 43 C.F.R. Pt. 11 Subpt. D.) The Type A Rule was last updated in 1997. DOI previewed the proposal in January 2023 in its Office of Restoration and Damage Assessment’s (ORDA) Advanced Notice of Proposed Rulemaking (ANPR). In the ANPR, the ORDA surmised that the Type A Rule was rarely used in part because of its restricted scope, but also because “the model equation for each Type A environment is the functional part of the rule itself—with no provisions to reflect evolving toxicology, ecology, technology, or other scientific understanding without a formal amendment to the Type A Rule each time a parameter is modified.” Calling the existing rule “inefficient and inflexible,” the ORDA stated that its proposal to reformulate the rule “as a procedural structure” would “modernize the Type A process and develop a more flexible and enduring rule than what is provided by the two existing static models” (88 Fed. Reg. 3373). Reprinted courtesy of Amanda G. Halter, Pillsbury, Jillian Marullo, Pillsbury and Ashleigh Myers, Pillsbury Ms. Halter may be contacted at amanda.halter@pillsburylaw.com Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com Read the court decision
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When is a Residential Subcontractor not Subject to the VCPA? Read to Find Out

December 01, 2017 — Christopher G. Hill - Construction Law Musings
The Virginia Consumer Protection Act (VCPA) can and often does apply to residential construction. The transaction between a residential contractor and an homeowner has been held to fall under the consumer transaction language of the VCPA and on occasion been used to avoid the issues with the economic loss doctrine in Virginia. However, there are limits to how far down the contractual chain the VCPA applies, particularly in the case where a supplier or subcontractor does not provide the services or materials for a personal, consumer purpose. An example of this fact is found in the case of Johnston v. Stephan. In that case, a couple hired a general contractor to build a home and the general contractor hired Cole Roofing System, Inc. to provide the roof of the home. The first couple subsequently sold the home and the second homeowners sought further work on the roof from Cole Roofing. After Cole Roofing refused further work, the homeowners brought an action seeking to enforce a warranty and for a violation of the VCPA. For the warranty claim, the homeowners relied on the contract between them and the prior homeowners that referenced a 10 year warranty on the roof and the subcontract between the homebuilder and Cole Roofing. Cole Roofing sought dismissal of the VCPA and warranty claims by demurrer and further sought by demurrer to have the matter dismissed as being filed after the running of the statute of limitations. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Lumber Drops to Nine-Month Low, Extending Retreat From Record

August 30, 2021 — Marcy Nicholson - Bloomberg
Lumber futures slid to the lowest in more than nine months after sawmills ramped up production and demand from builders stabilized. September futures in Chicago fell as much as 4.4% to $482.90 per thousand board feet, the lowest for a most-active contract since Oct. 30. Prices have dropped more than 70% from the record high reached just three months ago. The tumble marks a stark turnaround for the common building material after strong U.S. construction demand during the pandemic spurred a surge in orders for lumber, causing prices to more than quadruple to their May peak and fueling inflation concerns. Sawmills have since increased output, and a shortage of other building supplies such as siding and windows has slowed the pace of construction, said Brian Leonard, an analyst with RCM Alternatives. Read the court decision
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Reprinted courtesy of Marcy Nicholson, Bloomberg

Building Permits Up in USA Is a Good Sign

November 27, 2013 — CDJ STAFF
The number of building permits for houses issued throughout the country hasn’t been higher since June 2008, a sign that the home building industry continues to recover, even in the face of higher interest rates. “These reports are unequivocally in line with our view that the housing recovery remains will on track, as the lack of supply will continue to support both construction activity and house prices,” according to Harm Bandholz, the chief U.S. economist for UniCredit Research. Building permits were up 13.9% over last year and beat projections of 930,000 permits on an annual rate. The current annual rate for building permits is 1.03 million. Permits for multifamily homes were up 20.1% in September and 15.3% in October. Single-family homes were up 0.8% in October, but had fallen 1.9% the month before. Read the court decision
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Over 70 Lewis Brisbois Attorneys Recognized in 4th Edition of Best Lawyers: Ones to Watch in America

September 25, 2023 — Lewis Brisbois
(August 17, 2023) – 75 Lewis Brisbois attorneys across 25 offices have been named to the 4th edition of "Best Lawyers: Ones to Watch in America." Congratulations to the following attorneys on this recognition! You can see the full list of Lewis Brisbois attorneys named to Best Lawyers' 30th edition of The Best Lawyers in America here. Akron, OH

Associate Meleah M. Skillern – Commercial Litigation

Atlanta, GA

Partner Candis R. Jones - Insurance Law, Medical Malpractice Law – Defendants, and Personal Injury Litigation – Defendants

Boston, MA

Partner Amanda Mathieu - Labor and Employment Law – Management

Charleston, WV

Partner Sophie L. Johns - Product Liability Litigation - Defendants

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Reprinted courtesy of Lewis Brisbois

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