Seattle Washington Building Expert Directory

Ruling Dealing with Constructive Changes, Constructive Suspension, and the Implied Covenant of Good Faith and Fair Dealing

January 22, 2024 — David Adelstein - Florida Construction Legal Updates
A dispute pending in the Armed Services Board of Contract Appeals (ASBCA) dealt with interesting legal issues on a motion to dismiss. See Appeals of McCarthy Hitt-Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (ASBCA 2023). The dispute involves a contractor passing through subcontractor claims due to impacts caused by the COVID-19 pandemic and the government’s response to the pandemic. More particularly, the claim centers on the premise that the government “failed to work with [the contractor] in good faith to develop a collaborative and cooperative approach to manage and mitigate the impacts and delays arising from the COVID-19 pandemic.” See Appeals of McCarthy Hitt. The contractor (again, submitting pass through claims from subcontractors) claimed: (a) constructive changes to the contract entitling it to an equitable adjustment under the Changes clause of Federal Acquisition Regulation (F.A.R.) 52.243-4; (b) construction suspensions of the contractor’s work entitling it to an equitable adjustment under the Suspensions of Work clause of F.A.R. 52-242-14; and (c) the government breached the implied covenant of good faith and fair dealing. Each of these legal issues and theories will be discussed below because they are need-to-know legal issues. Keep these legal issues in mind, and the ASBCA’s ruling on the motion to dismiss as its analysis may demonstrate fruitful in other applications. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Homebuilding Still on the Rise

December 20, 2012 — CDJ STAFF
The National Association of Home Builders reports that spending on private homes was up three percent in October 2012, bringing it to a four-year high. This was part of a trend in which fourteen of the last fifteen months have seen increases in spending on residential construction. Likewise, multifamily residences have seen thirteen months of increased spending, putting it 82% higher than its low, two years ago. In addition to new homes, remodeling is also up, reaching its highest point in five years. Read the court decision
Read the full story...
Reprinted courtesy of

California Construction Bill Dies in Committee

July 21, 2011 — CDJ STAFF

AB 20, which its sponsor, Linda Halderman (R-Fresno), stated would discourage class action lawsuits against builders and protect jobs in the construction industry, has died in committee. Although the Business Journal reported in June that Haldeman was promoting the bill during a talk in her district and the bill is still on her web site, the California Assembly reports that the bill failed in committee on March 15, 2011. It is possible that the bill could be reconsidered, but the Assembly Committee on Judiciary sees the bill as responding to issues quieted by SB 800 which gives builders the right to repair alleged defects before any suit can be filed.

Read the full story…

Read the court decision
Read the full story...
Reprinted courtesy of

Contract Void Ab Initio: Key Insights into the KBR vs. Corps of Engineers Affirmative Defense

February 12, 2024 — Matthew DeVries - Best Practices Construction Law
In a recent Board decision dated December 13, 2023, the United States Army Corps of Engineers sought to amend its answer in the case of APPEALS OF – KELLOGG BROWN & ROOT SERVICES, INC., under Contract No. W912GB-13-C-0011. The proposed amendment introduces an affirmative defense, contending that Kellogg Brown & Root Services, Inc. (KBR) made material misrepresentations in its proposal, rendering the fully-performed contract void ab initio. Background: The contract in question, executed on July 9, 2013, was for the construction of an Aegis Ashore Missile Defense System site in Deveselu, Romania, with a firm, fixed-price amount of $134,211,592. The Corps moved to amend its answer to allege that KBR’s material misrepresentations induced the Corps to enter the contract, justifying the voiding of the contract. The alleged misrepresentations include issues related to subcontractor quotes, firm fixed prices, subcontracting plans, and more. Motion to Amend and Legal Defense: The Corps, despite delays in formally amending its answer, argued that KBR was aware of the potential affirmative defense before the conclusion of fact discovery. The proposed affirmative defense asserts that KBR made eight material misrepresentations in its proposal, upon which the Corps relied in awarding the contract and defending against a GAO protest. Read the court decision
Read the full story...
Reprinted courtesy of Matthew DeVries, Burr & Forman LLP
Mr. DeVries may be contacted at mdevries@burr.com

One to Watch: Case Takes on Economic Loss Rule and Professional Duties

June 28, 2011 — Douglas Reiser, Builders Council Blog

According to the Supreme Court of Washington Blog, The Supreme Court heard oral argument in Jackowski v. Hawkins Poe on Thursday, June 16, 2011. The court’s synopsis of the case can be found on the Washington State Court website.

In short, two home purchasers brought a lawsuit against the home’s sellers, the sellers’ agent and the purchasers’ own agent, alleging claims of fraud, fraudulent concealment, negligent misrepresentation and breach of common law and statutory duties. The trial court dismissed the buyers’ claims on the basis of the economic loss doctrine and Division II reversed, opining that the ELR does not apply to professional duties. The Supreme Court will now look at applying the Independent Duty Doctrine established last year, and whether professional duties (those of the real estate agents) should be reviewed under a different light.

Read the full story…

Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

Read the court decision
Read the full story...
Reprinted courtesy of

Panthers Withdraw City, County Deal Over Abandoned Facility

September 19, 2022 — The Associated Press (Jeffrey Collins) - Bloomberg
Columbia, S.C. (AP) -- Carolina Panthers owner David Tepper’s real estate company wants to revoke a bankruptcy settlement it negotiated with the city and county where its abandoned South Carolina practice facility was supposed to be built because it says the governments are making exorbitant and unreasonable demands. GT Real Estate Holdings had offered $21 million to York County. It suggested giving the proceeds from selling part of its site in Rock Hill so the city would get at least $20 million. But the county and city have filed separate lawsuits and court papers. York County said it is entitled to more than $80 million in part to get back money from a special penny sales tax that was supposed to expand a road but Tepper’s company used for the proposed practice facility. Read the court decision
Read the full story...
Reprinted courtesy of Bloomberg

Anti-Fracking Win in N.Y. Court May Deal Blow to Industry

July 01, 2014 — Chris Dolmetsch, Freeman Klopott and Jim Efstathiou Jr. – Bloomberg
New York’s cities and towns can block hydraulic fracturing within their borders, the state’s highest court ruled, dealing a blow to an industry awaiting Governor Andrew Cuomo’s decision on whether to lift a six-year-old statewide moratorium. The case, closely watched by the energy industry, may invigorate local challenges to fracking in other states and convince the industry to stay out of New York even if Cuomo allows drilling. Pennsylvania’s highest court issued a similar ruling last year, striking down portions of a state law limiting localities’ ability to regulate drillers. “This sends a really strong and clear message to the gas companies who have tried to buy their way into the state that these community concerns have to be addressed,” Katherine Nadeau, policy director for Environmental Advocates of New York, an anti-fracking group, said in a phone interview. “This will empower more communities nationwide.” Mr. Dolmetsch may be contacted at cdolmetsch@bloomberg.net; Mr. Klopott may be contacted at fklopott@bloomberg.net; and Mr. Efstathiou Jr. may be contacted at jefstathiou@bloomberg.net Read the court decision
Read the full story...
Reprinted courtesy of Chris Dolmetsch, Freeman Klopott and Jim Efstathiou Jr., Bloomberg

Rescission of Policy for Misrepresentation in Application Reversed

August 17, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeal reversed the trial court's issuance of summary judgment to the insurer, finding that the insured did not make misrepresentations when applying for a policy to cover rental property. Duarte v. Pacific Spec. Ins. Co., 13 Cal. App. 5th 45 (2017). Duarte rented his house to Jennifer Pleasants. Duarte gave her a 45-day notice to quit in February 2012, but she did not leave. Two months later, Duarte applied for landlord-tenant coverage with Pacific. The application was submitted electronically and Pacific issued a policy to Durate the same day. In June 2012, Pleasants filed a lawsuit against Duarte, alleging ten causes of action arising from habitability defects which began in 2009. The suit claimed Pleasants had notified Duarte about the defects, she had suffered emotional distress and physical injury, and over paid rent, and had out-of-pocket expenses. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly - Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES