Seattle Washington Building Expert Directory

Don’t Be Lazy with Your Tenders

October 24, 2022 — Rick Erickson - Snell & Wilmer Real Estate Litigation Blog
Our clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical provisions. Tenders demanding defense and indemnity are strictly interpreted based on what the contract documents require. Getting tenders wrong can result in losing one of the most significant risk-shifting tools in the contract. It can also be a monumental mistake if insurance coverage for indemnification damages and defense costs are lost because of an inadequate tender. The legal definition of “tender” is simple; it is “[a]n unconditional offer of money or performance to satisfy a debt or obligation.” Black’s Law Dictionary 1479-80 (7th ed. 1999). Whereas “tender of defense” for insurance is “the act in which one party places its defense and all costs associated with said defense with another due to a contract or other agreement … [which] transfers the obligation of the defense and possible indemnification to the party to which the tender was made.” Int’l Risk Mgmt. Inst., Glossary. Thus, when claims arise on your projects, notice by tenders of defense and indemnity will often determine dispute resolution and available insurance proceeds. Read the court decision
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Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr. Erickson may be contacted at rerickson@swlaw.com

School Board Sues Multiple Firms over Site Excavation Problem

February 12, 2013 — CDJ STAFF
A West Virginia school board has filed a lawsuit against four companies over the construction of the Lewisburg Elementary School. The main allegation is that Carpenter Reclamation Inc. excavated the site deeper than was called for, which then incurred greater expenses for the subsequent contractors, and further that the liner installed by Carpenter Reclamation was defective. The suit also names Western Surety, which issued a performance bond for Carpenter Reclamation. The school board claims that Carpenter’s failure to fix the problem, required $5,800 in evaluation, review, and testing. Further, the plumbing and lead contractors had additional expenses of $10,587 and $212,645 because of the deeper foundation. The school board has also named these firms, Dougherty Company, Inc. and Swope Construction, in the lawsuit. Ron Mallory, the president of Swope Construction said that the school board’s dispute was “with the site contractor, not with us,” noting that they did corrective work under a change order. Read the court decision
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North Dakota Supreme Court Clarifies Breadth of Contractual Liability Coverage

October 30, 2018 — Michael S. Levine & Latosha M. Ellis - Hunton Insurance Recovery Blog
North Dakota’s highest court delivered a blow to Mid-Continent Casualty Company in Borsheim Builders Supply, Inc. v. Manger Insurance Co., ruling that a contract between a policyholder and general contractor fit the insured contract exception of contractual liability. Commercial General Liability (“CGL”) policies generally exclude an insured’s contractual assumption of another party’s liability. The exclusion typically contains an exception for what is known as an “insured contract.” However, many policyholders and insurance claims personnel often miss the significance of the insured contract exception. This was the case in Borsheim. Read the court decision
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Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com

Agreement Authorizing Party’s Own Engineer to Determine Substantial Compliance Found Binding on Adverse Party

August 30, 2021 — Garret Murai - California Construction Law Blog
When it comes to resolving construction disputes it’s a bit like the “31 Flavors” of Baskin Robins. There’s a flavor for nearly everyone. From mediation, to arbitration, to litigation, to dispute resolution boards (DRBs), to the architect as the “initial decision maker” under AIA contracts, parties and their counsel have developed numerous ways to resolve disputes on construction projects, including by expert review. But if you’re going to agree to a dispute resolution procedure, make sure it’s one you can live with, because if you don’t, it’s often going to be too late to go back to the proverbial drawing board as the parties in the next case discovered. The Coral Farms Case In December 2010, a mudslide impacted three properties in San Juan Capistrano, California. One of the properties was owned by Coral Farms, L.P., another by Paul and Susan Mikos, and the third by Thomas and Sonya Mahony. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Roots of Las Vegas Construction Defect Scam Reach Back a Decade

August 05, 2013 — CDJ STAFF
Recent court documents in the Las Vegas HOA scandal reveal that the late Nancy Quon, thought to be a mastermind in the scam was involved with a similar case before 2001. The Las Vegas Review-Journal reports that the Nevada attorney general’s office launched an investigation of the Starfire condominium complex. Claims were made that an architect and a construction company attempted to fill the Starfire board with straw buyers. Quon represented a resident to filed a claim over defective windows. Chris Rasmussen, the attorney for Edith Gillespie, Leon Benzer’s half sister, has noted that his client was not charged in the Starfire case, but the Review-Journal notes that no one was, as the insurance company settled quickly, which ended the chances for a criminal investigation. The Starfire case is described as “a $6 million lawsuit based on fraudulent construction defect claims.” Quon, Benzer, and their co-conspirators are alleged to have modeled their subsequent actions after Starfire. Read the court decision
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5 Ways Equipment Financing is Empowering Small Construction Businesses

August 24, 2017 — Duane Craig - Construction Informer
Small construction businesses can often get 100% equipment financing, eliminating the down payment, and freeing up cash, according to the Equipment Leasing and Finance Association (ELFA). Most small businesses need equipment in order to operate and grow, and each business must decide on an acquisition strategy that is right for it. But, a majority of businesses turn to equipment leasing and financing so they can take advantage of a range of benefits. Read the court decision
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Reprinted courtesy of Duane Craig, Construction Informer
Mr. Craig may be contacted at dtcraig@constructioninformer.com

Be Sure to Bring Up Any Mechanic’s Lien Defenses Early and Often

November 27, 2023 — Christopher G. Hill - Construction Law Musings
As those of you who regularly read Musings are aware, mechanic’s liens are a big part of my law practice and a big issue here at this construction law blog. I’ve discussed the picky requirements of the mechanic’s lien statutes in Virginia and how the 90 and 150-day rules are strictly enforced. However, a recent case out of the City of Norfolk Virginia Circuit Court cautions that while failure to meet these strict requirements may invalidate a lien, it only does so if the owner or general contractor seeking to invalidate the lien argues the invalidity and/or presents evidence of that invalidity either pretrial or during trial. In Premier Restoration LLC v. Barnes, the Court considered the following facts. The defendant homeowners had a house fire and the resulting damage was the subject of an insurance claim that was paid and checks sent to the homeowners. Premier filed a mechanic’s lien in response to Barnes’s failure to pay for Premier’s restoration construction services after Barnes’s home was destroyed by fire. Premier seeks a decree to enforce the lien, asking the court to order the sale of Barnes’s property to recover its damages or, alternatively, a judgment in its favor. With the Complaint seeking enforcement of the lien and damages for breach of contract, and this is a key point, Premier provided a copy of the mechanic’s lien along with the affidavit that is part of the statutory form swearing that the Owner was justly indebted to Premiere. The homeowners filed a counterclaim for unfinished work, including unfinished punch list work. After a trial during which no evidence regarding either the timeliness of the lien recording or whether any of the work sought to be encompassed in the lien was performed outside of the statutory 150-day window was presented by either side, the defendants filed a post-trial motion seeking to invalidate the lien as including sums for work outside of the 150-day window. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Number of Occurrences Depends on Who is Sued

August 20, 2014 — Beverley BevenFlorez-CDJ STAFF
According to David L. Beck of Pillsbury Winthrop Shaw Pittman LLP (as published by Association of Corporate Counsel), an Oregon court “held that property damage incurred to a condominium project resulting from a myriad of construction defects constituted just one occurrence under the relevant excess general liability policy.” In Chartis Specialty Ins. Co. v. American Contractors Ins. Co Risk Retention Group, et al., Chartis argued that “[b]ecause there were multiple defects/conditions resulting in property damage” there were also “multiple occurrences.” However, “[t]he court disagreed, finding that despite various defects, the property damages at issue arose from just one occurrence: the developers' failure to perform its duties.” Read the court decision
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