SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Ohio Court of Appeals: Absolution Pollution Exclusion Bars Coverage for Workplace Coal-Tar Pitch Exposure Claims

January 10, 2018 — Complex Insurance Coverage Reporter

On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942.

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Reprinted courtesy of White and Williams LLP

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Pay-if-Paid Clauses, Nasty, but Enforceable

March 12, 2015 — Craig Martin – Construction Contractor Advisor
I am preparing for a presentation this week on Troublesome Contract Clauses to the Construction Specifications Institute (“CSI”), Nebraska Chapter. One of the clauses we will be discussing is the dreaded Pay-if-Paid clause, a particularly nasty provision that places the risk of owner’s solvency squarely on the subcontractor’s shoulders. While pay-if-paid clauses can create tremendous problems for subcontractors, they are enforceable. Pay-if-Paid clauses eliminate the obligation to pay the subcontractor until the general contractor is paid by the owner. Pay-if-paid clauses usually contain something akin to the following phrases:

• payment to subcontractors are “expressly and unequivocally contingent upon receipt of payment from the Owner for the Subcontract Work.”
• the subcontractor “expressly acknowledges that it relies on payment under the Subcontract on the creditworthiness of Owner, not that of the General Contractor.”
• the owner’s acceptance of the work and payment to the General Contractor are “conditions precedent to any obligation of the General Contractor to pay the subcontractor.”

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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Safety, Compliance and Productivity on the Jobsite

November 18, 2019 — Matthew Ramage - Construction Executive
With any project, managing a large contingency of workers—all with varying levels of security clearance—can be a logistical headache. On the majority of construction sites, managers lack the resources to quickly and accurately identify all onsite personnel and ensure the right labor, equipment and materials are in the right place at the right time. Equally important, construction managers need to know if worker certifications are current and only allow access to authorized areas. Multiple factors compound the need for better transparency across the workforce, including:

• Safety. Construction work is inherently dangerous. In 2017, nearly 1,000 fatalities occurred on construction sites. This means that the industry accounted for more than 20% of private sector fatalities across all industries.
• Regulatory. The Federal government has a heightened awareness of jobsite dangers and is targeting companies that are not making every effort to maximize the workers’ safety.
• Security. Sites in urban environments require round-the-clock protection from urban explorers, thieves and the general public.
• Employee wage disputes. Lawsuits and disputes over wages and hourly employment are increasing.
• Reduced productivity. It can be difficult to measure and track productivity in construction.

Reprinted courtesy of Matthew Ramage, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Force Majeure and COVID-19 in Construction Contracts – What You Need to Know

April 06, 2020 — Brenda Radmacher & Jason Suh - Gordon & Rees Construction Law Blog
“Force Majeure” – While most construction contracts contain these provisions, they are often not understood in relation to the implications they may have on construction projects. With the onset of the COVID-19 pandemic, we are all taking a closer look at many portions of our contracts. The following is a brief primer on how to understand your construction contract and its potential implications on your business in this season of change. What is a Force Majeure? Construction contracts usually take into consideration that the parties want to agree at the outset on who bears the risk of unforeseen incidents that may affect the project’s progression. These issues are generally handled in a “force majeure” clause. Force majeure, according to Mariam Webster’s Dictionary is a “superior or irresistible force; or an event or effect that cannot be reasonably anticipated or controlled.” To be deemed a force majeure, generally the circumstances must be outside of a party’s control which makes performance impossible, inadvisable, commercially impractical, or illegal. In addition to being unforeseeable, the circumstances must have external causation, and be unavoidable. However, the key to understanding if COVID-19 will be deemed a condition that will excuse a contractor’s performance is the specific language in the provision. Generally force majeure events are unavoidable events such as “acts of God,” most notably weather conditions including hurricanes, tornadoes, floods, earthquakes, landslides, and wildfires, as well as certain man-made events like riots, wars, terrorism, explosions, labor strikes, and scarcity of energy supplies. However, there is not much case law or specifics on conditions similar to COVID-19. Reprinted courtesy of Brenda Radmacher, Gordon & Rees and Jason Suh, Gordon & Rees Ms. Radmacher may be contacted at bradmacher@grsm.com Mr. Suh may be contacted at jwsuh@grsm.com Read the court decision
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Providing “Labor” Under the Miller Act

January 28, 2019 — David Adelstein - Florida Construction Legal Updates
A recent opinion out of the Northern District of California discusses the “labor” required to support a Miller Act payment bond claim on a federal construction project. It is a good case that discusses the type of labor required to support a Miller Act payment bond claim. In Prime Mechanical Service, Inc. v. Federal Solutions Group, Inc., 2018 WL 619930 (N.D.Cal. 2018), a prime contractor was awarded a contract to design and install a new HVAC system. The prime contractor subcontracted the work to a mechanical contractor. The mechanical contractor with its sub-designer prepared and submitted a new HVAC design to the prime contractor and provided 4-5 onsite services to determine the location and layout for the new HVAC equipment, perform field measurements, obtain security passes, and plan site access and crane locations. The mechanical contractor submitted an invoice to the prime contractor and the invoice remained unpaid for more than 90 days, which the prime contractor refused to pay. The mechanical contractor than filed a Miller Act payment bond lawsuit. 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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Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders

April 20, 2011 — Beverley BevenFlorez CDJ STAFF

The Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.



After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”



“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”



Fannin Builders appealed this judgment and assigned the following errors:



[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.



[a.] The Contract does not Contain a Satisfaction Clause.



[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.



[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.



[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.



[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.



In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”



The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”



The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.



The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”



James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:



“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.



In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”



The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.



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Modification: Exceptions to Privette Doctrine Do Not Apply Where There is No Evidence a General Contractor Affirmatively Contributed to the Injuries of an Independent Contractor’s Employee

November 23, 2016 — Renata L. Hoddinott & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In a case which was the subject of our Alert dated October 31, 2016 (click here for prior alert), the Court of Appeal of the State of California – Second Appellate District on November 17, 2016 issued a modification to the opinion in Khosh v. Staples Construction Company, Inc. (10/26/16 – Case No. B268937) with no change in judgment. In Khosh, the Court affirmed the trial court’s granting of summary judgment in favor of the defendant under the Privette doctrine where plaintiff presented no evidence that the defendant affirmatively contributed to his injuries. Reprinted courtesy of Renata L. Hoddinott, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Asbestos Confirmed After New York City Steam Pipe Blast

July 21, 2018 — Eydie Cubarrubia - Engineering News-Record
Asbestos has been found at the site where an underground steam pipe exploded early Thursday morning near the Flatiron building in midtown Manhattan. Read the court decision
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Reprinted courtesy of Eydie Cubarrubia, ENR
Ms. Cubarrubia may be contacted at cubarrubiae@enr.com

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