SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Limiting Liability: Three Clauses to Consider in your Next Construction Contract

June 25, 2019 — Tara Lynch - Gordon & Rees Construction Law Blog
In your next contract, consider including some (or all!) of the following clauses to limit your liability and maximize your profits. Waiver of Consequential Damages While a proven breach of contract will leave a design professional or contractor exposed to direct or compensatory damages, a waiver of consequential damages will help “stop the bleeding” and protect the design professional or contractor from paying every damage that might flow from the breach. Consequential damages include those damages which indirectly flow from the breach of contract, for example, lost rents, lost profits, lost use, lost opportunity, loss of employee productivity, and damages to reputation. The American Institute of Architects (AIA) has included a mutual waiver of consequential damages in its sample A201 for over 20 years. The AIA provision includes a definition of consequential damages which are waived, including many of the examples cited above. However, the AIA waiver of consequential damages clause carves out an exception for liquidated damages to the owner. Prudent design professionals and contractors will strike this exception so as not to render the clause meaningless. A well-drafted waiver clause will be mutual, will define which damages are consequential versus direct, and will not contain exceptions. Read the court decision
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Reprinted courtesy of Tara Lynch - Gordon & Rees Scully Mansukhani
Ms. Lynch may be contacted at tlynch@grsm.com

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New York Bars Developers from Selling Condos due to CD Fraud Case

October 15, 2014 — Beverley BevenFlorez-CDJ STAFF
According to GlobeSt, New York “Attorney General Eric T. Schneiderman has announced a settlement agreement that bars developers Joseph Scarpinito and Shiraz Sanjana—and five affiliated entities they own and operate—from offering or selling securities, including condo and coop sales, in or from New York State.” The settlement is in “result of an investigation by the Attorney General’s real estate finance bureau into allegations of fraud by the developers of the Mirada, an eight-story Harlem condominium.” GlobeSt also stated that the agreement “provides for binding arbitration with the condo purchasers for alleged construction defects, and requires the developers to pay $500,000 in penalties and fines to New York State.” Read the court decision
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CGL, Builders Risk Coverage and Exclusions When Construction Defects Cause Property Damage

May 17, 2021 — Jeffrey Cavignac - Construction Executive
Direct damage to property under construction caused by faulty or defective work or defective materials has been a coverage issue for decades. Two specific policies, the Commercial General Liability for the contractors building the structure and the Builders Risk Policy on the project both are sources of potential coverage. A CGL policy protects the named insured (the contractor in this case) from third party liability arising out of the insured’s operations that results in either bodily injury or property damage. Damage to property caused by poor workmanship or defective materials would qualify as property damage. To understand how the CGL policy might respond to claims such as these, it is necessary to evaluate several exclusions in the CGL policy. CGL policies cover “property damage,” defined as physical injury to tangible property, including loss of use of such property, and loss of use of tangible property that has not been physically injured. Reprinted courtesy of Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Insurance Company Must Show that Lead Came from Building Materials

August 17, 2011 — CDJ STAFF

The Fourth Circuit Court of Appeals for Louisiana has reversed the summary judgment of a lower court in the case of Widder v. Louisiana Citizens Property Insurance Company. Judge Roland L. Belsome wrote the opinion for the panel of three judges. Ms. Widder discovered that her home and its content were contaminated by lead. She applied to her insurer, Louisiana Citizens Property Insurance, which denied her claim.



In response to Ms. Widder’s suit, LCPIC applied for a summary judgment on the grounds that there was no physical loss and that the policy did not cover defective material, latents defects, and pollution damage.



The appeals court found that the lead contamination of Widder’s home did meet the standards of a direct physical loss, citing a recent Chinese Drywall case. There, it was found, “when a home has been rendered unusable or uninhabitable, physical damage is not necessary.”



The lower court addressed only one of LCPIC’s exclusions, addressing only the exclusion on basis of “faulty, inadequate or defective material.” The appeals court noted that the evidence offered at trial does not show that the building materials were the source of the lead. This provided the appeals court with a matter of fact to remand to the lower court.

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U.K. Construction Growth Unexpectedly Accelerated in January

February 05, 2015 — Tom Beardsworth – Bloomberg
(Bloomberg) -- U.K. construction growth unexpectedly accelerated last month as housing strengthened and civil engineering bounced back from a contraction. Markit Economics said its Purchasing Managers’ Index rose to 59.1 from 57.6 in December. A reading above 50 indicates expansion. Economists forecast the gauge would fall to 57, according to the median estimate in a Bloomberg News survey. Read the court decision
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Reprinted courtesy of Tom Beardsworth, Bloomberg
Mr. Beardsworth may be contacted at tbeardsworth@bloomberg.net

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Landmark Towers Association, Inc. v. UMB Bank, N.A. or: One Bad Apple Spoils the Whole Bunch

May 12, 2016 — Jean Meyer - Colorado Construction Litigation
On April 21, 2016, the Colorado Court of Appeals issued an opinion that immediately drew the ire of the greater real estate development industry and those concerned about affordable housing in a state in the midst of unprecedented soaring rent and housing prices. The Landmark Towers Assn., Inc. v. UMB Bank, N.A., 2016 COA 61, decision is the result of protracted litigation arising out of construction and sale of the ill-fated European Village (“Village”) residential community. For a thorough summary of the origins of the development and the unfortunate story of the man behind the curtain, review the Denver Post’s article titled “Zachary Davidson, Denver Landmark developer, and his fall from grace.” (http://www.denverpost.com/ci_22656011/fall-from-grace-zach-davidson-landmark denver) Despite the unique facts and circumstances relating to the questionable dealings by the developer, Mr. Zachary Davidson, the decision now stands to turn the Colorado real estate development business on its head. Specifically, a group of condominium owners, who did not live in the Village, learned that their properties had been included in a special district, the Marin Metropolitan District (“District”), to finance the Village. Prior to their purchase, Mr. Davidson failed to disclose to the condominium owners that they would be responsible for financing the Village’s development through previously issued bonds by the District to be paid for through their property taxes. Understandably frustrated by this discovery the condominium owners, through the Landmark Towers Association, Inc. (“Landmark HOA”), investigated the origin of these unforeseen property taxes. Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

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Nomos LLP Partners Recognized in Super Lawyers and Rising Stars Lists

August 16, 2021 — Garret Murai - California Construction Law Blog
Nomos LLP partners Garret Murai and Jennifer Tang have been recognized in Thompson Reuter’s 2021 Northern California Super Lawyers and 2021 Northern California Rising Start lists in the area of Construction Litigation. This is the eighth consecutive year for Garret on the Super Lawyers list and the fifth consecutive year for Jennifer on the Rising Star list. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state. The Rising Stars list recognizes no more than 2.5 percent of attorneys in each state. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger, or in practice for 10 years or less. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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It Was a Wild Week for Just About Everyone. Ok, Make that Everyone.

April 06, 2020 — Garret Murai - California Construction Law Blog
It was a crazy week last week as the number of coronavirus cases in the United States jumped to 32,783 cases as of Sunday, from 3,680 cases, just a week before. In an attempt to “flatten the curve” and help those impacted by the virus, numerous federal, state, and local orders were issued, including orders requiring that residents “shelter in place.” For businesses impacted by the “shelter in place” orders, which, in California, means virtually every business in the state following Governor Newsom’s state-wide “shelter in place” order, there’s been confusion as to who can and can’t continue to work under the orders including among contractors and project owners. Although things have been changing, sometimes daily, here’s what you need to know about the “shelter in place” orders: The Local “Shelter In Place” Orders On Monday, March 16, 2020, six Bay Area counties, and the City of Berkeley, issued “shelter in place” orders requiring that residents in those counties and city shelter in place except for “Essential Activities,” if performing “Essential Governmental Functions,” or if operating “Essential Businesses.” Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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