Seattle Washington Building Expert Directory

Underpowered AC Not a Construction Defect

November 07, 2012 — CDJ STAFF
After buying a home in Louisiana, Mike Gines determined that the home’s air conditioning unit was insufficient to maintain an appropriate temperature. He contacted the home builder, D.R. Horton, Inc., which worked with the air conditioning installer, Reliant Heating & Air Conditioning, in order to repair the system. When the problems persisted, Gines filed a class action petition against Horton and Reliant in state court. Horton and Reliant moved the case to the federal courts, whereupon Gines asserted the defendants were in violation of the Louisiana New Home Warranty Act (NHWA). Horton stated that the claim under the NHWA was invalid, because Gines had not alleged actual physical damage to his home. The district court granted Horton’s motion to dismiss. Gines sought a reversal from the Fifth Circuit Court of Appeals and sought to have two questions of state law addressed by the Louisiana Supreme Court. The district court ruled that the NHWA was the “sole remedy under Louisiana law for a purchaser of a new home with construction defects. Gines argued that court erred in this, but also conceded that this was the conclusion of the Louisiana Supreme Court. Further, Gines argued that a provision in the NHWA that allows the inclusion of construction defects that do not cause damage was satisfied by paragraph 6 of the contract. The court noted that Gines did not attach a copy of the contract to either the original or amended complaint, and so the court does not need to address these claims. However, the court cautioned that if a copy had been included, they still would have rejected the claim, as “the cited language does not indicate a waiver of the physical damage requirement.” They also note that “paragraph 13 of the contract shows that Gines was aware to the absence of any such waiver in the contract.” The court concludes that “the moral of this story is that in order to avoid the harsh result that has obtained here, the buyer of a newly constructed home in Louisiana should seek to obtain in the contract of sale an express waiver of the actual damage requirement of the NHWA.” The appeals court affirmed the decision of the circuit court and denied the application to certify questions to the Louisiana Supreme Court. Read the court decision
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Water Intrusion Judged Not Related to Construction

October 09, 2013 — CDJ STAFF
A Wisconsin couple has lost their lawsuit against the city of Stoughton. Jerry and Maxine King claimed that construction of the Stoughton Fire Station lead to flooding of their basement. The city conceded that in 2008, the contractor failed to “have in place some of the measures that could have prevented the water from running onto the King property.” The contractor’s insurance company compensated the Kings. Subsequently, the Kings complained of further water damage. But Matt Dregne, Stoughton’s attorney, said that the Kings “didn’t repair the basement.” The judge in the case dismissed the suit with prejudice, disallowing any further suits from the Kings on these circumstances. Read the court decision
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Don’t Get Caught Holding the Bag: Hold the State Liable When General Contractor Fails to Pay on a Public Project

June 21, 2017 — Sean Minahan - Construction Contractor Advisor
According to a quick Google search the term “holding the bag” comes from the mid eighteenth century and means be left with the onus of what was originally another’s responsibility. Nobody wants to be left holding the bag. But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying the remaining amount due and owing to our client. Under Nebraska law, liens are not allowed against public projects. Instead the subcontractor is to make a claim on the payment and performance bond secured by the general contractor at the start of the project. In our case, the general contractor never secured a bond on which to make a claim; consequently leaving our client holding the bag. Fortunately, we were able to hand the bag back to the State and obtain full payment for the services and materials provided. Read the court decision
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Reprinted courtesy of Sean Minahan, Lamson, Dugan and Murray, LLP
Mr. Minahan may be contacted at sminahan@ldmlaw.com

No Coverage for Additional Insured

December 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
Two insurers disputed who was responsible for coverage the additional insured contractor. Endurance Am. Spec. Ins. Co. v. Century Sur. Co., 2015 U.S. App. LEXIS 19194 (2nd Cir. Nov. 4, 2015). The district court granted summary judgment to Endurance, finding there was coverage for the additional insured general contractor after being sued by an employee of a subcontractor. Century's policy included an Action Over Exclusion clause, which excluded insurance coverage for injury to certain employees as follows: Exclusions: . . . e. Employer's Liability "Bodily injury" to: (1) an "employee" of the named insured arising out of and in the course of:

(a) Employment by the named insured; or
(b) Performing duties related to the conduct of the named insured's business.

The named insured was Pinnacle Construction & Renovation Corp. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Goldman Veteran Said to Buy Mortgages After Big Short

February 05, 2015 — Heather Perlberg – Bloomberg
(Bloomberg) -- Dan Sparks helped Goldman Sachs Group Inc. profit from its bets against subprime mortgages. Now he’s expanding credit to Americans hurt when those types of loans soured and the housing market collapsed. Sparks’s SG Capital Partners this year began buying home loans made through origination partners across the U.S., with a focus on mortgages without government backing, said two people with knowledge of the business who asked not to be identified because the information is private. Mortgages that don’t qualify for purchase by government agencies include large-balance jumbo loans and those to borrowers with lower credit scores or higher debt. Read the court decision
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Reprinted courtesy of Heather Perlberg, Bloomberg
Ms. Perlberg may be contacted at hperlberg@bloomberg.net

New York Construction Practice Team Obtains Summary Judgment and Dismissal of Labor Law Claims

October 01, 2024 — Lewis Brisbois Newsroom
New York, N.Y. (August 23, 2024) – In Trujillo-Cruz v. City of New York, et al., New York Partner Inderjit Dhami, a member of New York Partner Meghan A. Cavalieri’s Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiff's Labor Law §240(1), §241(6) and §200 claims dismissing the entire case against national developer and construction company clients. The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on July 11, 2018, while in the scope of his employment as a laborer in connection with the construction/renovation of a residential apartment building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when he was coming down from a ladder and fell on a 2”x 4”, causing him disabling injuries. The plaintiffs’ counsel articulated a $3 million settlement demand. Labor Law §240(1) imposes absolute liability on a defendant where an injured worker engaged in the performance of covered construction work establishes that a safety device proved inadequate to shield him from elevation-related harm, and that the defendant’s failure to provide an adequate safety device proximately caused the injuries alleged. The plaintiff first testified that he stepped on the 2” x 4” after he came down off of the ladder, but his counsel then prompted him to recalibrate his testimony by asking whether the accident arose when he was coming down the ladder or after he had come down off of the ladder. The plaintiff changed his testimony, alleging that the accident arose as he was coming down the ladder and that he remained partially on the ladder when he stepped on the piece of formwork and fell. Inderjit argued that the plaintiff’s reframing of his deposition testimony was immaterial for purposes of the Labor Law § 240 (1) analysis. Irrespective of whether the plaintiff was on solid ground or had one foot on the ladder at the time of the occurrence, his Labor Law § 240 (1) claim was unavailing in that the accident did not arise as a result of the type of extraordinary elevation-related peril protected by Labor Law § 240 (1). Justice Maslow agreed and dismissed the plaintiff’s Labor Law § 240 (1) claims. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Seattle Condos, Close to Waterfront, Construction Defects Included

February 11, 2013 — CDJ STAFF
There's a cluster of eight condominium projects in Seattle, some within easy walking distance of each other, that are either in construction defect lawsuits, arbitration, or mediation. Jeff Reynolds, contributing a Seattle PI.com reader blog, notes that as Seattle condo projects have neared the end of the four-year warranty period, condo boards are being targeted by attorneys. Reynolds writes that "once [the attorneys] are hired by the associations, they retain specialists that test for any and all construction defects with the building envelope." The problem that Reynolds sees is that that "major lending institutions stay away from condos with lawsuits." And so homeowners dealing with construction defects have apartments they can't sell to anyone who might want to use financing. This tightens Seattle's already limited inventory, leading to both frustrated sellers and frustrated buyers. Read the court decision
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Revisiting Termination For Convenience Clauses In Uncertain And Ever-Changing Economic Times

February 27, 2023 — Adam M. Tuckman & Brittney M. Wiesner - ConsensusDocs
In these times of persistent inflationary forces and efforts to tame the consequences through rising interest rates, economic uncertainty abounds in the United States and around the world. As an approximately $1 trillion contributor to the economy in the United States (4.2% of GDP in 2021) alone according to the Associated General Contractors of America, the health and the growth of the construction industry is certainly susceptible to these rapidly changing macroeconomic conditions. Presently, an unanswered question is how project developers will react to unpredictable fluctuations in project costs and interest rates. Although it seems unlikely to be a prevalent response, it is possible that substantial increases in borrowing, labor, or material costs would cause owners to pull the plug on projects that are in the advanced stages of construction. For projects in the nascent stages of development or construction, however, the calculous for owners becomes more tenuous. Both public and private owners may find it more prudent to indefinitely suspend or cancel pending or ongoing projects due to any, or a combination of, forecasted increases in project costs, shrinking funding, higher borrowing costs, or macro-economic uncertainty. Facing this quandary, how would an owner already under contract with a constructor and design team suspend or cancel its project? One potential approach is to invoke a termination for convenience clause found in the parties’ contract. Reprinted courtesy of Adam M. Tuckman, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Brittney M. Wiesner, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Tuckman may be contacted at atuckman@watttieder.com Read the court decision
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