SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Construction Problem Halts Wind Power Park

November 13, 2013 — CDJ STAFF
Engineers have yet to determine why a blade on a wind turbine broke at a wind power plant in Michigan, but as part of their investigation they are halting work on the final 10 turbines. The already completed 60 turbines have been taken out of operation. As a result, the Echo Wind Park is no longer generating power. Scott Simons, a spokesperson for the project, said “we’re not going to put anyone or anything at risk until we get to the bottom of this.” However, Dennis Buda, the project manager, attributed the broken blade to a manufacturing defect. Construction was planned to end in November. Read the court decision
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Boys (and Girls) of Summer: New Residential Solar Energy System Disclosures Take Effect January 1, 2019

October 02, 2018 — Garret Murai - California Construction Law Blog
As we come to the end of Summer, the California Contractors State License Board advises licensees that it has finalized its Solar Energy System Disclosure Document. The Solar Energy System Disclosure Document, required under Business and Professions Code Section 7169 as amended by Assembly Bill 1070 in 2017, requires that the disclosure language of the document be:

1. Included in all contracts providing for the installation of a “solar energy system” on a residential building;
2. Included on the front page or cover page of the contract;

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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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When an Insurer Proceeds as Subrogee, Defendants Cannot Assert Contribution Claims Against the Insured

July 15, 2019 — Shannon M. Warren - The Subrogation Strategist
In Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint. The underlying subrogation action involved allegations of strict liability, negligence and breach of warranty against a pellet heater manufacturer and the retailer who sold the heater. The claims arose from a fire allegedly originating from the heater, which spread to the insureds-subrogors’ home causing property damage, along with consequential damages. Pursuant to the applicable insurance policy, the insureds-subrogors’ insurer issued payments to its insureds-subrogors. Thereafter, the insurer filed suit against the heater manufacturer and retailer. The defendants filed a motion for leave to file a third-party complaint against the plaintiff’s insureds-subrogors, seeking to assert a contribution claim. The defendants alleged that the insureds-subrogors failed to properly install and maintain the pellet heater. The defendants also sought a jury instruction that would permit the jury to apportion fault to the insureds-subrogors, resulting in a reduction of the plaintiff’s recovery. The court looked to federal procedural law, but Kentucky substantive law to decide the defendants’ motion. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams
Ms. Warren may be contacted at warrens@whiteandwilliams.com

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Settlement Ends Construction Defect Lawsuit for School

October 02, 2013 — CDJ STAFF
The school district in the Chicago-area town of Lake Zurich has made last settlement in a construction defect lawsuit. The $80,000 settlement from Terra Group of Chicago brings the total settlement with the Community Unit School District 95 to about $1.9 million. Other firms included Bovis Lend Lease, Legat Architects, Larson Engineering, and Illinois Masonry Corporation. The school district had contracted for work on several schools in the district. The buildings opened in 2004, with defect claims made in 2007. Defect claims included the failure of a retaining wall and need for reinforcement of stairwells. The settlement with Terra Group was made under the agreement that it was a compromise with no concession of liability. Read the court decision
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Arbitration Clause Found Ambiguous in Construction Defect Case

October 28, 2011 — CDJ STAFF

The California Court of Appeals ruled on September 28 in the case of Burch v. Premier Homes. Ms. Burch bought a home after negotiating various addendums to the contract. The contract was a standard California Association of Realtors contract to which both the buyer and seller made additions. At issue in this case was paragraph 17 of the contract which included that “Buyer and Seller agree that any dispute or claim in Law or equity arising between them out of this Agreement or resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.”

The seller/defendant’s Addendum 2 “included provisions relating to the arbitration of disputes that may arise.” Ms. Burch’s realtor, Lisa Morrin, told Burch that “she had never seen a proposed contractual provision that would require a home buyer to agree to arbitrate with a builder over construction defects.” Ms. Burch told Morrin that she did not want to buy the property if she would have to give up her rights under California law.

As part of Addendum 2, the buyer had to buy a warranty from the Home Buyers Warranty Corporation. The sale was held up for a while, as Ms. Burch waited for a copy of the warranty. When she received it, she took further exception to Addendum 2. Scott Warren of Premier Homes said he could not sell the property without Addendum 2. Ms. Burch told her realtor that despite the claims made by Mr. Warren that this was for her benefit, she felt it was more to the benefit of Premier Homes. Don Aberbrook of HBW agreed to the clause, contained in the final sentence of Addendum 2, being struck.

Subsequent to buying the home, Burch submitted a claim concerning construction defects. HBW denied the claim and Burch began an action against the defendants. Premier filed a motion to compel arbitration which Burch opposed.

The trial court ruled that the striking out of the arbitration clause at the end of Addendum 2 “created a conflict with respect to the parties’ intent as to the scope of arbitration.” The trial court found that “the parties’ intention was to preserve Burch’s right to make state law claims including her right to a jury trial for any non-warranty claims against the builder.”

The appeals court in their ruling looked at the standard of review and concluded that the purchase agreement was ambiguous and that extrinsic evidence was required to resolve that ambiguity. As the contract contained contradictory provisions as to whether or not arbitration was required, it was necessary for the trial court to examine these claims. The appeals court found that the evidence supported the conclusions of the trial court.

Finally, the appeals court found that “there was no valid agreement to arbitrate disputes.” The court noted that arbitration can only happen by mutual consent and “it is clear that Burch did not enter into an agreement to arbitrate any construction defect disputes she might have.”

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Federal Interpleader Dealing with Competing Claims over Undisputed Payable to Subcontractor

September 28, 2017 — David Adelstein - Florida Construction Legal Updates
What do you do if you are holding undisputed money owed to a subcontractor? Well, you make an effort to pay it or tender it! Right? I am never a fan of a client holding undisputed sums without a legitimate contractual basis. There are circumstances, however, where the effort to pay an undisputed payable is not so easy. In fact, it is challenging, as in the below case example where the subcontractor filed for an Assignment for the Benefit of Creditors (referred to as an “ABC”). An ABC, in a nutshell, allows an insolvent entity to file an insolvency action in state court governed by state law and choose its assignee (versus a federal bankruptcy action governed by federal law where a trustee is appointed). One major difference is that there is no automatic stay in an ABC as there is in a federal bankruptcy action. Thus, the insolvent entity can still be sued, but, while that entity is in an ABC, there are many creditors that will not be able to enforce a judgment. (See Florida Statute Ch. 727). 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

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Application of Frye Test to Determine Admissibility of Expert

April 03, 2019 — David Adelstein - Florida Construction Legal Updates
Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony. The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles. See D.R. Horton, Inc. v. Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology. However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties. The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal. The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal. One issue on appeal was the admissibility of the expert’s opinion. The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Manhattan Homebuyers Pay Up as Sales Top Listing Price

October 01, 2014 — Oshrat Carmiel – Bloomberg
Manhattan apartment prices rose 4.2 percent in the third quarter, bolstered by buyers who increasingly agreed to pay what sellers were asking or more. The median sale price of condominiums and co-ops was $908,242, up from $872,000 a year earlier, according to a report today from appraiser Miller Samuel Inc. and brokerage Douglas Elliman Real Estate. The average price per square foot increased 12 percent to $1,270, the third-highest in records dating to 1989, the firms said. Prices in Manhattan have climbed for four consecutive quarters, encouraging more owners to list properties after an inventory shortage last year. With the number of apartments on the market up 28 percent from the third quarter of 2013, buyers focused on those that were not-too-ambitiously priced, said Jonathan Miller, president of New York-based Miller Samuel. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Mr. Carmiel may be contacted at ocarmiel1@bloomberg.net

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