Seattle Washington Building Expert Directory

California’s Right to Repair Act not an Exclusive Remedy

August 20, 2014 — Beverley BevenFlorez-CDJ STAFF
Karen L. Moore of Low, Ball & Lynch in JD Supra Business Advisor analyzed “two decisions holding that California’s Right to Repair Act ('SB 800') is not the exclusive remedy for a homeowner seeking damages for construction defects that have also resulted in property damage.” If property damage occurs due to construction defects, a homeowner “may also pursue common law tort causes of action.” After providing a brief background of California’s SB 800 and Aas v. Superior Court (which precluded the Right to Repair Act), Moore discussed the results of Liberty Mutual Insurance Company v. Broofield Crystal Cove, LLC, followed by a review of Burch v. Superior Court. Moore commented that “[t]hese two cases will likely be used by homeowners to avoid application of the Right to Repair Act’s pre-litigation procedures.” Read the court decision
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Trump Abandons Plan for Council on Infrastructure

August 17, 2017 — Mark Niquette - Bloomberg
President Donald Trump will not move forward with a planned Advisory Council on Infrastructure, a person familiar with the matter said Thursday. The infrastructure council, which was still being formed, would have advised Trump on his plan to spend as much as $1 trillion upgrading roads, bridges and other public works. Its cancellation follows Trump’s announcement Wednesday that he was disbanding two other business advisory panels. Read the court decision
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Reprinted courtesy of Mark Niquette, Bloomberg

Congratulations to San Diego Partner Johnpaul Salem and Senior Associate Scott Hoy for Obtaining a Complete Defense Verdict!

November 13, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Johnpaul Salem and Senior Associate Scott Hoy just concluded a 4-week trial defending a local renowned hotel in San Diego. Plaintiff alleged premises liability against BWB&O’s client arguing plaintiff was injured while riding in an elevator due to alleged negligent maintenance and inspection. Plaintiff brought in a “hired gun” elevator expert from Missouri and sought $25 million in damages for two fractured ankles, a compound tibia fracture, and lifelong CRPS/PTDS/anxiety. BWB&O argued any injuries sustained were a direct result of Plaintiff’s actions. After a passionate and powerful closing argument by Mr. Salem, attacking the foundation of Plaintiff’s expert’s opinions and presenting vigilance of the hotel in the safety of its guests, the jury unanimously ruled in BWB&O’s client’s favor. Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP Read the full story... Read the court decision
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Be Mindful Accepting Payment When Amounts Owed Are In Dispute

August 29, 2022 — Nicholas Korst - Ahlers Cressman & Sleight PLLC
After completing work on a project, or even during a project, it is not uncommon for some portion of the contract balance and/or a claim to be in dispute. As a contractor or subcontractor, it is important to be careful what is signed (or not signed) upon receipt of any payment both during and after completion of work on a project. One of the most common documents signed related to a receipt of payment is a lien/claim release document. This can be in the form of a conditional, unconditional, progress and/or final release. The language included in the release document is critically important, especially as it pertains to disputed amounts. As a contractor or subcontractor, if there are known disputes related to amounts owing, whether it be contract balance, disputed change order(s), a delay or inefficiency claim, or any other amounts believed to be owed, it is important to include language in the lien release that expressly carves out the disputed amounts. The same should be done for disputes related to extensions of time. This allows the contractor to accept the payment and release rights for the undisputed work, but continue to reserve its right to pursue the amounts in dispute later. If disputed amounts are not carved out, those amounts may effectively be waived and the subcontractor or contractor may lose all rights to recovery. As a subcontractor in Alaska recently learned, there are potentially other ways a contractor may waive or lose its rights to recover amounts in dispute – without even signing a waiver or release document. In Smallwood Creek, Inc. v. Build Alaska General Contracting, LLC et al., the general contractor sent the subcontractor a check described as “final payment.” The subcontractor believed it was owed more than what the general contractor had sent and refused to accept the check. Months later, the subcontractor deposited the check. The subcontractor reversed course again and attempted to repay the general contractor the amount deposited. The general contractor refused, claiming the subcontractor’s acceptance of payment constituted satisfaction of all amounts owing to the subcontractor. Read the court decision
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Reprinted courtesy of Nicholas Korst, Ahlers Cressman & Sleight PLLC
Mr. Korst may be contacted at nicholas.korst@acslawyers.com

Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit

October 23, 2018 — David Adelstein - Florida Construction Legal Updates
Prior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132. Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:

(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.

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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Nevada Supreme Court Holds That Insureds Can Use Extrinsic Evidence to Prove Duty to Defend

February 28, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita
The recent Nevada Supreme Court ruling in Zurich American Insurance Company v. Ironshore Specialty Insurance Company1 benefits insureds seeking to establish an insurer’s duty to defend. As a matter of first impression, the court clarified that insureds have the burden to prove that an exception to a policy exclusion applies in order to trigger the insured’s duty to defend. However, while the policyholder may use extrinsic evidence to establish the insurer’s duty to defend, the insurer may not use extrinsic evidence to deny that duty. The facts of the underlying claim are set in the 2000s when the insured subcontractors worked to build thousands of homes in Nevada. The subcontractors were insured by Zurich American Insurance Company (“Zurich”) during that period. After the homes were complete, the subcontractors switched from Zurich to Ironshore Specialty Insurance Company (“Ironshore”). Between 2010 and 2013, homeowners brought claims against the subcontractors alleging that the properties were damaged due to construction defects. The subcontractors tendered the claims to Zurich as the insurer at the time of construction. Zurich then sought defense and indemnification from Ironshore. Ironshore denied coverage under a “continuing and progressive” policy exclusion, claiming that the property damage occurred due to faulty work that predated the Ironshore policy. Notably, an exception to the exclusion applied if “sudden and accidental” property damage occurred within the Ironshore policy period. Given that the underlying lawsuits did not include specific allegations describing when or how the property damage occurred, Ironshore and Zurich disagreed on whether the exception to the exclusion was triggered.. Read the court decision
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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita
Ms. Barrese may be contacted at BBarrese@sdvlaw.com

California Builders’ Right To Repair Is Alive

March 19, 2014 — David J. Byassee - Ulich & Terry LLP
The California Supreme Court surprised everyone on December 11, 2013 when it denied Brookfield Homes’ request for review of the ruling in the case of Liberty Mutual Ins. Co. v. Brookfield Crystal Cove, LLC (2014) 219 Cal.App.4th 98, which was decided by the Court of Appeal for the Fourth Appellate District Division Three (Orange County). In that case the Court of Appeal held that the Right to Repair Act aka SB800 is not the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage. Under the ruling, homeowners may choose to sue builders under common law theories of liability such as strict liability and negligence, in addition to liability under the Act. This ruling made homeowners' compliance with the prelitigation requirements of the Act optional and thereby put builders' “right to repair” in jeopardy. The ruling undermined the expectations of California's homebuilders who, for the past decade, understood that their liability is limited by the Act and that they have a right to repair. Since the Liberty Mutual case was handed down, the topic has become a hotbed item with several divisions of the Court of Appeal. On February 19, 2014, the Court of Appeal for the Second Appellate District Division Three (Los Angeles County) issued a ruling against Premier Homes in the case of Burch v. Superior Court 2014 Cal.App.LEXIS 159 that, without independent analysis, simply adopted the holding in the Liberty Mutual case. But on February 21, 2014, the Court of Appeal for the Second Appellate District Division Four (Los Angeles County) ruled in the case of KB Home Greater Los Angeles, Inc. v.Superior Court 2014 Cal.App.LEXIS 167 that a homeowner's failure to give the builder an opportunity to inspect and repair a construction defect excused the builder's liability under the Act. Additionally, the Court of Appeal went out of its way to state it had ruled earlier in that case that the Act is the exclusive remedy. The various rulings lay a foundation for ultimate intervention by the California Supreme Court. In the meantime, these opposing cases will be cited by counsel for homeowners and builders alike for opposing positions as they continue to navigate construction defect disputes. Mr. Byassee is a strategic litigator specializing in representation of builders and developers. For more information regarding dispute resolution procedures under SB800, Mr. Byassee may be contacted at (949) 250-9797 or by email at dbyassee@ut-law.com. Published courtesy of David J. Byassee, Ulich & Terry LLP Read the court decision
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How the California and Maui Wildfires Will Affect Future Construction Projects

October 30, 2023 — Susan Doering - Construction Executive
Just like any kind of fire, wildfires are caused by the presence of fuel and a spark. In the case of the 2017 fires in the wine country of California, along with the state's 2018 Camp Fire, the fuel was dry leaf litter, branches and downed trees. And the spark, in some cases, resulted from electric utility lines and, in other cases, due to contractor’s work. More recently, this summer's Maui fires have taken hundreds of lives—deceased and missing—and burned more than 2,500 acres. Lahaina’s historic sites cannot be replaced, and estimates of the rebuild costs are near $5 billion. In Hawaii, the fuel was the same as in California: dried forest debris. It is alleged that the spark was from a powerline downed by extreme winds from Hurricane Dora. While sparks were present, it is the increased volume of fuel that has been the true source of the disastrous recent wildfires. The increased presence of fuel is the result of recent changes in forestry-management practices, coupled with accelerated climatic shifts in recent years toward hotter, drier weather from 2011 to 2020 in California and 2022 to 2023 in Maui, increasing both frequency and severity. Reprinted courtesy of Susan Doering, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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