Seattle Washington Building Expert Directory

Eleventh Circuit Holds that EPA Superfund Remedial Actions are Usually Entitled to the FTCA “Discretionary Function” Exemption

February 18, 2019 — Anthony B. Cavender - Gravel2Gavel
An unusual Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, known also as Superfund) remedial action has resulted in a broad ruling that Environmental Protection Agency (EPA) remedial actions and their implementation by EPA contractors may be entitled to broad protection from liability insofar as the Federal Tort Claims Act (FTCA) is involved. The case is Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation, an unpublished opinion released by the court on November 30, 2018. After the Gulf States Steel Corporation, the owner and operator of a former steel manufacturing facility located in Gadsden, AL, declared bankruptcy, in 2002, Gadsden Industrial Park LLC (Gadsden) purchased 434 acres of the 761 acre site, as well as assets located in what is described as the “Excluded Real Property”—recyclable materials generated in the steel making process known as “kish” and “slag,” and a track of a railroad line located in this area. However, in the 2007 or 2008, the Eleventh Circuit observes, EPA began a CERCLA remedial cleanup action on the Excluded Real Property and barred Gadsden from entering the Excluded Real Property to make use of its new assets. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Ninth Circuit Rules Supreme Court’s Two-Part Test of Implied Certification under the False Claims Act Mandatory

May 13, 2019 — Meredith Thielbahr - Gordon & Rees Construction Law Blog
For those contractors in the government arena, read on. The False Claims Act (“FCA”) was enacted to deter knowingly fraudulent actions by contractors which resulted in a loss of property to the Government. Intent to defraud with resulting financial hardship was required. Contrary to popular misconception, the statute was not designed to punish all false submissions to the Government simply because those submissions, or claims, are later found to be false. The statute’s inclusion of the requisite element of knowledge is consistent with this notion:

A defendant must submit a claim for payment to the Government;
the claim must be false or fraudulent;
the defendant must have known the claim was fraudulent when it was submitted (also known as scienter); and
the claim must have caused the Government to pay out money.

See 31 U.S.C. § 3729(a). Despite these explicit elements (in addition to common law elements of fraud), over the last two decades, contractors have seen ever-expanding theories of FCA recovery presented by qui tam plaintiffs and the Government. For example, under the FCA, the false “claim” evolved over time: the claim no longer needs to be an express false claim (i.e. the truthfulness of the claim is a direct condition of payment); the claim can be “implied” misrepresentation or “half-truth”. Read the court decision
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Reprinted courtesy of Meredith Thielbahr, Gordon & Rees Scully Mansukhani
Ms. Thielbahr may be contacted at mthielbahr@grsm.com

Mixed Reality for Construction: Applicability and Reality

July 22, 2019 — A. Vincent Vasquez - Construction Executive
One technology available to the digital contractor for mapping what’s happening in the physical world with the 3D models is mixed reality. Mixed reality often includes both augmented reality and virtual reality. Preconstruction Phase During the preconstruction design phase, mixed reality can be used for a number of tasks, such as:

conducting design iterations;
communicating designs to owners;
visualizing the impact of design changes;
discovering design and coordination clashes; and
mocking up virtual interior designs.

Marketing Mixed reality can also be used to create marketing material, such as a virtual showroom. Imagine being able to show a potential client what the building will look like. For example, the client, wearing mixed-reality glasses, can see the physical neighborhood with the building or can take a virtual “walk” through of an apartment before it it is even completed. Reprinted courtesy of A. Vincent Vasquez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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COVID-19 Business Interruption Lawsuits Begin: Iconic Oceana Grill in New Orleans Files Insurance Coverage Lawsuit

April 20, 2020 — Jeffrey J. Vita & William S. Bennett - Saxe Doernberger & Vita, P.C.
On Monday, the iconic New Orleans restaurant, Oceana Grill, filed the first Coronavirus-related business interruption insurance coverage lawsuit in a US jurisdiction. The declaratory judgment action styled Cajun Conti, LLC, et. al. d/b/a Oceana Grill v. Certain Underwriters at Lloyd’s, London was filed in Louisiana state court for the Parish of Orleans. As a direct result of the government-mandated closures and restrictions on public gatherings implemented by the City of New Orleans and State of Louisiana, Oceana Grill’s petition anticipates a significant loss of business income. Based on allegations in the petition, there are several aspects of Oceana Grill’s policy that make this a good test case for business interruption coverage stemming from the Coronavirus. Although the specific policy language is not quoted in the petition, coverage provisions are categorically identified throughout. As a preliminary matter, the policy at issue appears to be written on an “all risks” basis, meaning the insuring agreement of the policy would likely be triggered generally by all risks of “physical loss or damage” unless specifically excluded. This basis for coverage, which is common in property policies, is advantageous to policyholders, as it limits the insured’s burden of proof to establishing that there was physical loss or damage while leaving the burden of applying any more specific exclusion to the insurance company. Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and William S. Bennett, Saxe Doernberger & Vita, P.C. Mr. Vita may be contacted at jjv@sdvlaw.com Mr. Bennett may be contacted at wsb@sdvlaw.com Read the court decision
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Confidence Among U.S. Homebuilders Declines to Eight-Month Low

March 19, 2015 — Bloomberg News
(Bloomberg) -- Confidence among U.S. homebuilders unexpectedly fell in March to an eight-month low as prospective buyers were in little rush to shop for properties ahead of the busier spring selling season. The National Association of Home Builders/Wells Fargo sentiment gauge dropped to 53 from 55 in February, figures from the Washington-based group showed Monday. The median forecast in a Bloomberg survey called for a gain to 56. Sales of single-family homes declined to a five-month low and builder optimism about the outlook failed to improve, the report also showed. Low mortgage rates and job creation may help spur homebuyer interest in coming months. Read the court decision
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Reprinted courtesy of Bloomberg News
Michelle Jamrisko may be contacted at mjamrisko@bloomberg.net

Warranty of Workmanship and Habitability Cannot Be Disclaimed or Waived Under Any Circumstance

May 01, 2023 — Jason Feld & Stephanie Wilson - Kahana & Feld LLP
Arizona residential construction and single-family home production is growing at a rapid pace. And just as fast as the homes are sold, homeowners are constantly seeking warranty repairs from their homebuilders. Despite having strong purchase documents with express warranty language, the Arizona Supreme Court in Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022) adopted a bright line rule that regardless of the contract, the implied warranty of workmanship and habitability (“implied warranty”) cannot be disclaimed or waived under any circumstance. The Arizona Supreme Court opinion provides clear guidance of the law in this area on the scope of the implied warranty in contracts between homebuyers and builder/vendors, specifically on the issue of whether an express warranty can negate and effectively waive the common law implied warranty – which is a definitive violation of public policy. The Zambrano decision involved a licensed real estate broker who bought a new single family home for herself in a newly constructed master planned community in Surprise, AZ. Zambrano entered into a valid sales contract with Scott Homes (homebuilder) which contained a stand-alone 45-page pre-printed form express warranty. The express warranty was to be the “only warranty applicable to the home.” The contract further clarified that the buyer was expressly disclaiming (and, thus, waiving) the implied warranty. The sales documents and express warranty were signed and authorized by Zambrano. A short time later, the home developed alleged “design and construction defects” that were “either time barred or outside the coverage” of the express warranty. Zambrano filed suit for the alleged defects based on the implied warranty. Scott Homes filed summary judgment based on the Zambrano’s waiver and disclaimer of the implied warranty in the purchase agreement. The trial court granted summary judgment and the matter was appealed up to the Arizona Supreme Court. Reprinted courtesy of Jason Feld, Kahana & Feld LLP and Stephanie Wilson, Kahana & Feld LLP Mr. Feld may be contacted at jfeld@kahanafeld.com Ms. Wilson may be contacted at swilson@kahanafeld.com Read the court decision
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New Mexico Adopts Right to Repair Act

April 25, 2023 — William L. Doerler - The Subrogation Strategist
On April 7, 2023, New Mexico’s governor, Michelle Lujan Grisham, signed into law New Mexico’s Right to Repair Act (Act), 2023 N.M. SB 50. The Act’s effective date is July 1, 2023. The Act applies to construction defects in dwellings, i.e., newly constructed single family housing units designed for residential use. The Act applies to not only newly constructed housing units but also to systems and other components and improvements that are part of the housing unit at the time of construction. Pursuant to the Act, except for construction defect claims that involve an immediate threat to the life or safety of persons occupying the dwelling, that render the dwelling uninhabitable or in which the seller, after notice, refused to make a repair pursuant to any applicable express warranty, a purchaser must comply with the provisions of the Act before filing a complaint or pursing an alternative dispute mechanism related to a construction defect in the dwelling. A seller who receives a notice complying with the provisions of the Act must give notice to all construction professionals who may be responsible for the defect. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Trial Victory in San Mateo County!

February 24, 2020 — Wilke Fleury
Wilke Fleury attorneys Adriana Cervantes and Matt Powell recently prevailed at trial in a case involving a real property dispute in San Mateo County. Wilke Fleury represented the owner of an apartment building in an action against an individual who recently acquired the duplex on the adjoining property. As set forth in the pleadings, the Apartment’s owner, tenants, and invitees, used the property in many ways including access, parking, and recreational purposes for over five years, and the new owner had actual notice of that use before the purchase. Nonetheless, the new owner insisted the Apartment had no right to use the property, and filed an action to quiet title. Wilke Fleury filed a cross-complaint on behalf of the Apartment alleging that it had a prescriptive easement over the property. Read the court decision
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Reprinted courtesy of Wilke Fleury

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