SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
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The Sensible Resurgence of the Multigenerational Home

August 13, 2014 — Chris Farrell – Bloomberg
One of the biggest fears spawned by the recession and subsequent up-and-down recovery is getting stuck at home. The commonly expressed concern is that millennials are too burdened with student debts and poor job prospects to make it on their own. According to the narrative of generational dependency, the resurgence in multigenerational living is a trend hardly worth celebrating. Or is it? Yes, many young college graduates have faced tough economic circumstances in recent years. But the trend toward embracing the multigenerational home began well before the Great Recession, suggesting something else is at work. A record 57 million Americans, or 18.1 percent of the population, lived in a multigenerational household in 2012, according to a Pew Research report, “In Post-Recession Era, Young Adults Drive Continuing Rise in Multi-Generational Living,” released on June 17, 2014. (You can include the First Family among the multigenerational households.) That’s up from 28 million, or 12.1 percent of the population, in 1980. Equally impressive, the return of the multigenerational household marks a striking reversal of the post-World War II decline. In 1940, 24.7 percent of the population resided in a multigenerational home, a living arrangement that bottomed in the early 1980s. Read the court decision
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Reprinted courtesy of Chris Farrell, Bloomberg

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Allen, TX Board of Trustees Expected to Approve Stadium Repair Plans

July 30, 2014 — Beverley BevenFlorez-CDJ STAFF
Construction plans to fix the $60 million high school football stadium in Allen, Texas, which has been closed due to cracks discovered in the structure, is expected to be approved by the Allen School Board of Trustees, reported KHOU. The construction company and architectural firm both stated “they will cover the costs to fix everything -- which could run between $600,000 and $1 million.” The school board plans on using “$2 million in bonds for the construction, renovation, acquisition and equipment of school facilities,” and will then seek to recover the amount of repairs “from the parties responsible for defects and/or construction problems and failures.” Read the court decision
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Fourth Circuit Confirms Scope of “Witness Litigation Privilege”

November 21, 2018 — Anthony B. Cavender - Gravel2Gavel
On October 26, in the case of Day v. Johns Hopkins Health Sys. Corp., divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling that the common law “Witness Litigation Privilege” protects an expert witness in a Black Lung Benefits Act benefits proceeding against civil claims that allege a federal RICO violation and Maryland state law claims for fraud, tortious interference, negligent misrepresentation and unjust enrichment attended the testimony of the expert witness. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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AIA Releases Decennial 2017 Updates to its Contracts Suites

June 29, 2017 — Garret Murai - California Construction Law Blog
The American Institute of Architect’s (AIA) suite of design and construction documents are among the most popular industry form contracts. Every ten years the AIA reviews and updates its core documents, and early this Spring, announced the release of its updated contract documents. Among the new changes include:

• Communications Between Owners and Contractors: Expands the ability of owners and contractors to communicate directly while maintaining an architect’s ability to remain informed about communications that affect the architect’s services.
• Owners’ Financial Ability to Pay for Project: Clarifies provisions requiring owner to provide proof it has made financial arrangements to pay for project.
• Contractor Pay Application Requirements: Simplifies provisions for contractors to apply for, and receive, payments.

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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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A DC Office Building Offers a Lesson in Glass and Sculpture

May 08, 2023 — Kriston Capps - Bloomberg
From the outside, the facade of 2050 M Street, an office building in Washington, DC, looks like it’s made with liquid soap. Standing inside and looking out, its structure is almost invisible. The building, which was finished in 2020, boasts an ethereal curtain wall, created from hundreds of fluted planes of glass treated with a special industrial coating. The result is a multifaceted surface that pushes the limits of transparency, enhanced with a silver opal shine. According to Joshua Ramus, founding principal of the architecture firm REX, the 12-story structure’s design reflects Washington’s building history, while its construction required a rather novel procurement process. The building, he says, is very much a DC story. Each of its 978 glass panels is concave, shaped using an innovative machine called a bending tempering furnace. Curving glass makes it stronger as a material, and this building’s panes are strong enough to stand up with minimal infrastructure. The building doesn’t employ mullions, window components that hold glass in place. Even a few years ago, achieving such an effect by shaping pieces of glass would have been prohibitively expensive. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

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Texas Supreme Court Rules on Contractual Liability Exclusion in Construction Cases

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
The Texas Supreme Court ruled on Ewing v. Amerisure Ins. Co. on January 17th, a “much-anticipated” decision according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP. “Construction projects are always the subject of contracts among owners and contractors” Salisbury stated in his article on Lexology.com. The recent decision demonstrates that “an exclusion in the standard Comprehensive Liability Insurance policy that precludes coverage for ‘liabilities assumed under contract’” does not usually “apply to construction contracts.” In 2008, Ewing Construction Company built a set of tennis courts in Corpus Christi, according to Salisbury. “Shortly after construction was complete, according to the school district, ‘the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events.’” After the school district sued Ewing in state court, Ewing “turned the suit over to Amerisure, its CGL insurer, seeking a defense and indemnity. Amerisure denied all coverage, citing the contractual liability exclusion in its policy. This inspired Ewing to sue the carrier in federal district court for the Southern District of Texas.” After several rulings and appeals, the case eventually reached the Texas Supreme Court: “According to the Ewing court, the contract claims that Ewing failed to perform in a good and workmanlike manner ‘are substantively the same as its claims that Ewing negligently performed under the contract because they contain the same factual allegations and alleged misconduct.’ Failure to perform in a ‘good and workmanlike manner’ is functionally and substantively the same as performing negligently. ‘Accordingly,’ the Ewing court said, ‘we conclude that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.’” Read the court decision
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Quick Note: Third-Party Can Bring Common Law Bad Faith Claim

July 01, 2019 — David Adelstein - Florida Construction Legal Updates
A third-party claimant may bring a common law bad faith claim against a defendant’s liability insurer. Mccullough v. Royal Caribbean Cruises, 2019 WL 2076192, *2 (S.D.Fla. 2019). “A bad faith claim may be brought by a third party absent an assignment from the [defendant] insured.” Id. This can only be done in the third-party bad faith context with the argument that the insurer’s “bad faith” conduct resulted in a judgment against the defendant-insured in excess of the policy limits. However, in any third-party bad faith claim (and, really, bad faith claim in general), coverage must first be determined under the policy. 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

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