Washington Court of Appeals Divisions Clash Over Interpretations of the Statute of Repose
August 07, 2023 —
Masaki Yamada & Ryanne Mathisen - Ahlers Cressman & Sleight PLLCThe construction statute of repose under RCW 4.16.310 bars any claims arising from construction, design, or engineering of any improvement upon real property that has not accrued within six years after substantial completion or termination of services, whichever is later, even if the injury has not yet occurred.
On June 20, 2023, Division One of the Washington Court of Appeals (Div. I) published its decision in
Welch v. Air & Liquid Systems severely criticizing and rejecting the statute of repose reasoning contained in
Maxwell v. Atlantic Richfield Co., 15 Wn. App. 2d 569, 476 P.3d 645 (2020), a Division Two (Div. II) opinion.
More than a mere difference of opinion, the courts in Welch and Maxwell reached different results as to whether claims asserted against Brand Insulations, Inc. were barred by the statute of repose despite involving (i) the same procedural posture, both appeals from summary judgment decisions; (ii) the same facility, Atlantic Richfield Corporation’s (ARCO) petroleum refinery at Cherry Point in Ferndale; (iii) the same activity of installation of asbestos laden insulation on pipes; (iv) the same type of injury, mesothelioma; and (v) application of the same test set forth in Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 676 P.2d 466 (1984).
Reprinted courtesy of
Masaki Yamada, Ahlers Cressman & Sleight PLLC and
Ryanne Mathisen, Ahlers Cressman & Sleight PLLC
Mr. Yamada may be contacted at masaki.yamada@acslawyers.com
Ms. Mathisen may be contacted at ryanne.mathisen@acslawyers.com
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The One New Year’s Resolution You’ll Want to Keep if You’re Involved in Public Works Projects
January 07, 2015 —
Garret Murai- California Construction Law BlogNew Year’s resolutions are hard to keep.
In fact, studies (which I have a sneaking suspicion may have been paid for by the tobacco, donut and vacation timeshare lobbies) have found that only 8% of New Year’s resolutions are kept.
But, here’s one you’ll want to make sure you keep.
Mandatory Registration and Notice Requirements
If you’re a public works contractor or subcontractor you only have until March 1, 2015 to register through the California Department of Industrial Relations (“DIR”) to bid and enter into public works contracts on state and local public works projects.
And if you’re a state or local public agency you must provide notice of the DIR’s new registration requirements in all call for bids and contract documents beginning January 1, 2015.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
California Federal Court Finds a Breach of Contract Exclusion in a CGL Policy Bars All Coverage for a Construction Defect Action
July 19, 2021 —
Robert Dennison - Traub LiebermanThe Southern District of California published a decision in May 2021 in Associated Industries Ins. Co. v. Mt. Hawley Ins. Co., 2021 WL 1921016 (S.D. Cal. 5/12/21) concerning the scope of a breach of contract exclusion in a general liability insurance policy as applied to a construction defect action.
The suit was filed by Associated Industries Insurance Company against Mt. Hawley Insurance Company for equitable contribution for amounts spent to defend and indemnify the parties co-insured, referred to as JGCI in the decision. JGCI agreed to build a building for a third party pursuant to a written construction contract. The City of Davis issued a certificate of occupancy for the building on May 6, 2005. The City’s permits stated the building was final on that date. Mt. Hawley issued the first of several annual general liability insurance policies in September 2005.
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Robert Dennison, Traub LiebermanMr. Dennison may be contacted at
rdennison@tlsslaw.com
Ninth Circuit Resolves Federal-State Court Split Regarding Whether 'Latent' Defects Discovered After Duration of Warranty Period are Actionable under California's Lemon Law Statute
December 17, 2015 —
Laura C. Williams & R. Bryan Martin – Haight Brown & Bonesteel LLPIn Daniel v. Ford Motor Company (filed 12/02/15), the Ninth Circuit resolved a federal and state court split on the issue of whether consumers can sustain a breach of implied warranty claim under California’s Song Beverly Consumer Warranty Act (aka the “lemon law” statute) for “latent” defects discovered after the warranty period has expired. Answering this question in the affirmative, the Ninth Circuit followed the holding in the California state appellate decision of Mexia v. Rinker Boat Co. 95 Cal.Rptr.3d 285 (2009), which definitively determined there is nothing in California’s lemon law that requires a consumer to discover a latent defect during the duration of the warranty.
The underlying class action lawsuit was brought in federal district court by purchasers of Ford Focus vehicles. The plaintiffs alleged Ford was aware of, but failed to disclose, a rear suspension defect in the Focus that resulted in premature tire wear which can cause decreased vehicle control, catastrophic tire failure and drifting on wet or snowy roads. The plaintiffs alleged a number of claims including violations of California’s Song Beverly Consumer Warranty Act and Magnuson Moss Warranty Act. Ford successfully moved for summary judgment on all claims prompting an appeal.
Reprinted courtesy of
Laura C. Williams, Haight Brown & Bonesteel LLP and
R. Bryan Martin, Haight Brown & Bonesteel LLP
Ms. Williams may be contacted at lwilliams@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
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From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens
August 03, 2020 —
Lori S. Smith - White and WilliamsA little over a year ago, I wrote a blog post about the danger of relying on precedent. Now, more than ever, clients and their advisors need to revisit contract forms on which they may have been relying for years. While many of us have lived through times that required certain adjustments in how we viewed contractual obligations — recessions, wars, oil embargoes, natural disasters, 9/11 — none of these events had the widespread and long-lasting impact that the current COVID-19 pandemic is having. None of these events shut down the U.S. economy and impacted global supply chains across every industry in the manner we are now experiencing.
With this in mind, there is a need to figure out what the “new normal” will look like for contract negotiations in a post-pandemic world. Business professionals need to now anticipate more widespread disruption than we could have ever before imagined. It isn’t just force majeure clauses or material adverse effect provisions, as these will likely add pandemics and government shutdowns to their ever-growing list of contemplated risks, if they were not already expressly covered. And it is not clear, at least in the near-term, whether a resurgence or mutation of COVID-19 or the emergence of another virus can truly be seen as unforeseeable in a post-COVID world. The issues are much more fundamental to the approach that parties may take in negotiating contracts. Commercial contracts between purchasers, vendors, distributors, licensors and licensees will need to evaluate allocation of risk from both sides and come to a new happy medium that all can live with in an ever-evolving world. While parties should review their standard contracts in their entirety, some key provisions to think about include:
- Length of the contract and exclusivity. Depending on which side you are on, you may want to reconsider a long-term arrangement that ties your company to a particular vendor or distributor. Supply chain disruption can have a seriously detrimental impact on your business. Are requirements contracts where a particular supplier is required to make available all of your needs for a certain good or service really the best arrangement for your business? What about take or pay arrangements where you are obligated to which are common in certain industries pay a minimum amount or a penalty to a supplier whether or not you actually purchase the contemplated volume of goods ? Do you really want to be tied up in an exclusive arrangement, or do you need flexibility to maintain secondary or tertiary sources of supply? Do you want to provide a licensee with an exclusive right to your technology (even within a limited field of use or industry sector)?
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Lori S. Smith, White and WilliamsMs. Smith may be contacted at
smithl@whiteandwilliams.com
With Historic Removal of Four Dams, Klamath River Flows Again Unhindered
October 21, 2024 —
Tim Newcomb - Engineering News-RecordIn a period of 16 months, four dams built between 1903 and 1962 came down as part of a monumental effort to clear 35 miles of the Klamath River spanning Oregon and California. The project owner, the Klamath River Renewal Corp., describes it as the largest dam removal effort in U.S.—and possibly world—history.
Reprinted courtesy of
Tim Newcomb, Engineering News-Record
ENR may be contacted at enr@enr.com
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Florida Extends Filing Time for Claims Subject to the Statute of Repose
June 13, 2018 —
William L. Doerler - The Subrogation StrategistUnder Florida’s construction-related statute of repose, Fla. Stat. § 95.11, actions based on the design, planning or construction of an improvement to real property are barred if not commenced within 10 years after the later of several possible dates, including the date of actual possession by the owner and the date of the issuance of a certificate of occupancy. The Florida Legislature recently amended the statute to extend the time within which defendants subject to a suit filed close to the end of the 10-year period can file claims. Under the revised law, a defendant can file “counterclaims, cross-claims and third-party claims up to 1 year after the pleading to which such claims relate is served.” Regardless of when the cause of action at issue accrued, the law applies to actions commenced on or after July 1, 2018, except that any action that would not have been barred under Fla. Stat. § 95.11(3)(c) prior to the amendment may be commenced before July 1, 2019.
The revised law provides relief to defendants because, under the prior law, they had to file claims against other potentially responsible third parties before the expiration of the statute of repose. Under the new law, defendants can bring third parties into the action after the expiration of the 10-year statute of repose period.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
General Contractor Supporting a Subcontractor’s Change Order Only for Owner to Reject the Change
December 09, 2019 —
David Adelstein - Florida Construction Legal UpdatesThe opinion in Westchester Fire Ins. Co, LLC v. Kesoki Painting, LLC, 260 So.3d 546 (Fla. 3d DCA 2018) leads to a worthy discussion because it involves a common scope of work occurrence on construction projects involving a general contractor and subcontractor. The contractor submits a subcontractor’s change order request to the owner and the owner rejects the change order. What happens next is a scope of work payment dispute between the general contractor and subcontractor. Yep, a common occurrence.
In this case, a general contractor hired a subcontractor to perform waterproofing and painting. A scope of work issue arose because the specifications did not address how the window gaskets should be cut and then sealed. The owner wanted the window gaskets cut at a 45-degree angle and the subcontractor claimed this resulted in increased extra work. The general contractor agreed and submitted a change order to the owner to cover these costs. The owner rejected the change order claiming it was part of the general contractor’s scope of work even though the cutting of window gaskets at a 45-degree angle was not detailed in the specifications.
After the subcontractor filed a suit against the general contractor’s payment bond surety, the project architect further rejected the change order because gasket cutting was part of the specification requirements. (Duh! What else was the architect going to say? It was not going to concede there was an omission that resulted in a change order to the owner, right?)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
