SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Federal Subcontractor Who Failed to Follow FAR Regulations Finds That “Fair” and “Just” are Not Synonymous

April 22, 2019 — Garret Murai - California Construction Law Blog
Inscribed over the doors of the U.S. Supreme Court are the words “Equal Justice Under Law.” It’s a reminder that judicial decisions should be just. That doesn’t necessarily mean fair. In Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC, U.S. Court of Appeals for the 9th Circuit, Case No. 17-16510 (January 28, 2019), the 9th Circuit overturned an arbitration decision in favor of a local Afghani subcontractor seeking termination costs after it was terminated for convenience by a U.S.-based general contractor. This, despite the arbitrator’s finding that the subcontract was “clearly drafted to give every advantage to” the general contractor, that the local Afghani subcontractor’s “experience with government contracting [was] not nearly as extensive as that of” the general contractor, and “that the normal business practices and customs of subcontractors in Afghanistan were more ‘primitive’ than those of U.S. subcontractors experienced with U.S. Government work.” Aspic Engineering and Construction Local Afghani subcontractor Aspic Engineering and Construction Company was awarded two subcontracts by ECC Centcom Constructors the general contractor on two projects in Afghanistan overseen by the United States Army Corps of Engineers. The first subcontract involved construction of various buildings in the Badghis province of Afghanistan . The second subcontract involved the construction various buildings Sheberghan province of Afghanistan . Both subcontracts included clauses from the Federal Acquisition Regulation (FAR), which were incorporated by reference, and included flow-down provisions obligating Aspic to ECC in the same manner that ECC was obligated to the U.S. government. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

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First-Time Buyers Shut Out of Expanding U.S. Home Supply

August 13, 2014 — Prashant Gopal – Bloomberg
The four-bedroom house that Ilia Nielsen-Dembe purchased in west Denver earlier this year wasn’t her top choice. The first-time buyer had to settle on a home in a neighborhood with a high crime rate after losing out on bids for five properties in more desirable areas. “I definitely sacrificed in terms of location,” said Nielsen-Dembe, 33, who lives with her husband and two daughters in the house she bought in April for $184,500. “I had to cross streets that were not ideal in order to get a house.” While the supply of U.S. homes for sale is at an almost two-year high and price gains are moderating, buyers such as Nielsen-Dembe wouldn’t know it. An inventory crunch for entry-level houses has only worsened during the past year as discounted foreclosures become scarce and cash-paying investors snap up affordable listings to convert to rentals. Properties at the lower end of the market are also the most likely to have underwater mortgages, keeping would-be sellers from moving. 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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Third Circuit Limits Pennsylvania’s Kvaerner Decision; Unexpected and Unintended Injury May Constitute an “Occurrence” Under Pennsylvania Law

December 22, 2019 — Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog
The Third Circuit ruled on Friday that differing “occurrence” definitions can have materially different meanings in the context of whether product defect claims constitute an “occurrence” triggering coverage under general liability insurance policies. The Court held in Sapa Extrusions, Inc. v. Liberty Mutual Insurance Company, that product claims against Sapa may be covered under policies that define an “occurrence” as an accident resulting in bodily injury or property damage “neither expected nor intended from the standpoint of the insured.” However, the Court affirmed that coverage was not triggered under policies lacking the “expected” or “intended” limitation, reasoning that, under those policies, there was no question that the intentional manufacturing of Sapa’s product was too foreseeable to amount to an “accident.” The coverage dispute arose from an underlying action in which Marvin, a window manufacturer, alleged that, between 2000 and 2010, Sapa sold it roughly 28 million defective aluminum window extrusions. Marvin alleged that the extrusions, which are metal frames that hold glass window panes in place, began to oxidize and break down shortly after they were installed, causing Marvin to incur substantial costs to fix and replace them. Marvin sued Sapa in 2010 in Minnesota federal court, and the parties settled in 2013. Sapa sought coverage for the settlement from its eight general liability insurers for the period implicated by Marvin’s allegations. The insurers denied coverage and Sapa brought suit in the Middle District of Pennsylvania. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Spatz may be contacted at mspatz@HuntonAK.com Read the court decision
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Court finds subcontractor responsible for defending claim

May 18, 2011 — CDJ STAFF

In an unpublished decision, the California Fourth Appellate District Court has reversed the judgment of Judge Linda B. Quinn of the Superior Court of San Diego. In the case Inland California, Inc. v. G.A. Abell, Inland, a general contractor had subcontracted with Apache Construction and Precision Electric Company (G.A. Abell).



Apache alleged that extra demolition and drywall work was needed due to Precision’s electrical work. Inland tendered a defense of Apache’s claims. However, Precision did not provide any defense. Inland withheld payment from Precision.



At trial, Inland “conceded Precision earned the $98,000 in progress payments Inland withheld.” They were obligated to additionally pay Precision’s costs and attorney fees.



The Fourth Appellate District court has overturned this and remanded the case back to the lower court. The judges determined that Precision was obligated to defend itself against the claims raised by Apache and therefore vacated the judgment against Inland.



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Buyer Beware: Insurance Agents May Have No Duty to Sell Construction Contractors an Insurance Policy Covering Likely Claims

May 20, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
Construction contractors in the market for insurance coverage have few legal protections if their insurance agent fails to provide insurance that covers likely claims against the contractor. As construction defect lawsuits continue to be a frequent occurrence throughout Colorado, we have seen an increase in the number and complexity of coverage endorsements and exclusions in insurance policies. Some of these exclusions result in insurance policies that are essentially useless to the contractor who purchased them. For example, we have seen dirt work contractors with earth movement exclusions or an earth movement sublimit that turns their $2 million policy into a $100,000 policy. We have seen contractors who primarily build tract homes in subdivisions with tract home exclusions. We have seen general contractors whose policies state that every subcontractor must name the contractor as an additional insured or else the general contactor’s policy converts from a seven-figure policy to a five-figure policy with eroding limits (meaning that the attorney’s fees, expert fees, and litigation costs reduce the coverage limits). The list goes on and leads to an unfortunately high number of contractors who pay significant sums for their insurance policies, finding themselves uninsured or underinsured. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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House of Digital Twins

March 08, 2021 — Cristina Savian - AEC Business
As a vocal and passionate advocate for the adoption of Digital Twins for our built assets, I keep finding myself standing in, what feels like, the middle of a house of cards, observing its always rocky structure in constant danger of collapse. A wobbly system threatened by the tremors stressed by one of the most prominent digital revolutions that our construction industry has ever experienced. DIGITAL TWINS FOR OUR BUILT ASSET. This booming industry trend is gaining speed at a rate that the construction industry has never experienced before. Construction has always been slow at innovating and still holds its title as the least digitalised industry, but the Digital Twin revolution has now found our location and is ready to disrupt. I often witness how these forces attempt to pull down the cards, but, to my surprise, their resilience is what keeps holding the house together. Hold on, is this resilience or resistance? Read the court decision
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Reprinted courtesy of Cristina Savian, AEC Business

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Congratulations to BWB&O’s Newport Beach Team for Prevailing on a Highly Contested Motion to Quash!

January 08, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to Newport Partners Tyler Offenhauser and Jonathan Cothran, and Associate Anisha Kohli, who recently prevailed on behalf of BWB&O’s client before the Orange County Superior Court on a highly contested Motion to Quash Service based on Plaintiff’s failure to timely file and serve a DOE Amendment, naming our client. BWB&O’s client was the owner of a building where Plaintiff, a licensed electrician, was electrocuted while performing an upgrade to the building’s electrical infrastructure. Plaintiff’s original lawsuit named only the building’s tenant, who was also represented by BWB&O. BWB&O was successful earlier this year on a Motion for Summary Judgment under the Privette Doctrine and won judgment on behalf of the client/tenant. While that MSJ was pending, Plaintiff surreptitiously added the building’s owner to the suit with a DOE Amendment, after several months earlier learning the owner and then tenant were entities operated by the same individual. However, Plaintiff never informed counsel or any other party of the filing. Moreover, after the MSJ was granted, Plaintiff then waited several more months to serve the building’s owner. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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The Indemnification Limitation in Section 725.06 does not apply to Utility Horizontal-Type Projects

February 07, 2018 — David Adelstein - Florida Construction Legal Updates

One of the most important provisions in construction contracts is the indemnification provision. Appreciating contractual indemnification obligations are critical and certainly should not be overlooked. Ever!

Florida Statute s. 725.06 (written about here and here) contains a limitation on contractual indemnification provisions for personal injury or property damage in construction contracts. There should always be an indemnification provision in a construction contract that addresses property damage or personal injury. Always!

Section 725.06 pertains to agreements in connection with “any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith…” If the contract requires the indemnitor (party giving the indemnification) to indemnify the indemnitee (party receiving the indemnification) for the indemnitee’s own negligence, the indemnification provision is unenforceable unless it contains a “monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any.” It is important to read the statute when preparing and dealing with a contractual indemnification provision.

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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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