Seattle Washington Building Expert Directory

Are Mechanic’s Liens the Be All End All of Construction Collections?

August 12, 2024 — Christopher G. Hill - Construction Law Musings
For those of you familiar with Construction Law Musings, you are aware of my affinity and discussion of those powerful but tricky collection tools: mechanic’s liens. You have heard me tout their ability to secure payment when a contractor or subcontractor has not been paid on a construction project (even in the face of bankruptcy). If you read my construction law blog regularly (though recently not-so-regularly updated), you could get the impression that a mechanic’s lien is an automatic avenue to payment. While mechanic’s liens can be a powerful collection tool, this post is going to discuss some pros and cons of recording, and ultimately suing to enforce, a mechanic’s lien in Virginia. 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

Boston Contractor Faces More OSHA Penalties

February 21, 2022 — Scott Van Voorhis - Engineering News-Record
The head of a Boston-based construction company that lost two workers in a fatal accident at a downtown Boston worksite last year now faces nearly $2 million in total fines after safety violations on a new project. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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ASCE Statement on The Partial Building Collapse in Surfside, Florida

June 28, 2021 — Tom Smith - American Society of Civil Engineers
The following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE): WASHINGTON, DC. – We are saddened by the tragic news coming out of Surfside, Florida, regarding the fatal partial building collapse of a condominium early Thursday morning. Safety is the top priority of every civil engineer, and protecting public health and safety is core to our mission at ASCE. We share our deepest condolences to all of those affected by this tragedy. Collapses like these are fortunately highly unusual and extremely rare. However, it is imperative to identify the root cause of failures when they do occur, and to ensure that proactive steps are taken to prevent future incidents. ASCE fully supports the need for continued engineering assessments to pinpoint the cause of the collapse, and we stand ready to support official investigations with technical expertise and advice available through our 150,000 civil engineer members worldwide. While rescue and recovery operations are underway, it is important that we support our first responders who are conducting essential rescue efforts and are operating as quickly as possible. We will also continue to keep those who have been injured and those who have not yet been accounted for in our hearts and thoughts, and we share our heartfelt sympathies to all of those affected. ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel. Read the court decision
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Constructive Change Directives / Directed Changes

June 06, 2018 — David Adelstein - Florida Construction Legal Updates
rime contracts typically contain a constructive change directive clause. A constructive change directive also goes by the acronym CCD (and for purposes of this article, such changes will be referred to as a CCD), however it can also be known as a Work Change Directive, Interim Directed Change, or Directed Change, depending on the type of contract beign utilized. An owner can order a CCD, versus issuing the contractor a formalized change order, as a mechanism to direct the prime contractor to perform work if there is a dispute as to contract amount, time, or scope. Just because an owner issues a CCD does not mean the owner is conceding that it owes the contractor a change order. Rather, the owner is ordering the CCD as a mechanism to keep the project moving forward notwithstanding a disagreement with the contractor as to the price or time impact. Standard form construction agreements such as the AIA, EJCDC, or ConsensusDocs, will have a standard provision dealing with change directives where the owner can order the contractor to proceed with work in the absence of a change order. In the federal government context, most construction contracts will contain a changes clause that authorizes the government to formally direct changes; and, there is authority for contractors to equitably pursue a constructive change based on certain directives or instructions issued by the government. Naturally, from the contractor’s perspective, this CCD provision is an important consideration as it could likely require the contractor to finance a change to the owner’s project, particularly if there is a scope dispute where the owner does not believe the contractor is entitled to any change order. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

BWB&O Partners are Recognized as 2022 AV Preeminent Attorneys by Martindale-Hubbell!

December 06, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to BWB&O Partners on their recognition in Martindale-Hubbell® as AV Preeminent attorneys. This honor is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers. Newport Beach Partner, Nicole Whyte Newport Beach Partner, Keith Bremer Newport Beach Partner, John Toohey Newport Beach Partner, Jeremy Johnson Woodland Hills Partner, John O'Meara Woodland Hills Partner, Patrick Au Arizona Partner, John Belanger Las Vegas Partner, Peter Brown Las Vegas Partner, Lucian Greco Las Vegas Partner, Anthony Garasi San Diego Partner, Vik Nagpal San Diego Partner, Alexander Giannetto Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Failing to Adopt a Comprehensive Cyber Plan Can Lead to Disaster

January 13, 2020 — Richard Volack - Construction Executive
Despite being aware of cyber risk, and even frightened by it, a shocking number of companies in the construction industry have neither a cyber insurance policy nor a basic cyber security plan to deal with a hack or breach into their computer systems. Once breached, companies with no plan in place become, essentially, a rudderless ship subject to the whims of criminal tides. A proper cyber plan lays out at least the following:

the criteria for when a plan would be triggered (i.e., in the event of a breach or a hack);
which persons inside the company (in-house counsel, IT personnel, executive, project managers) and which persons outside the company (attorney with knowledge of cyber issues and ideally construction law as well; forensic computer experts, crisis management experts; and an insurance broker familiar with cyber policies) should be involved;
the chain of command and communication in this type of situation and the distinct roles each of the above players will fulfill (Note: this is not the same as the normal corporate chain of command); and
the various available options to address the breach situation, which will all depend upon the facts at issue—such as the type and extent of the breach and how much of what particular kind of information was lost, stolen or exfiltrated.

Reprinted courtesy of Richard Volack, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Volack may be contacted at rvolack@pecklaw.com Read the court decision
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Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
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No Signature, No Problem: Texas Court Holds Contractual Subrogation Waiver Still Enforceable

April 10, 2023 — Gus Sara - The Subrogation Strategist
In Chubb Lloyds Inc. Co. of Tex. v. Buster & Cogdell Builders, LLC, No. 01-21-00503-CV, 2023 Tex. App. LEXIS 676, the Court of Appeals of Texas, First District (Court of Appeals) considered whether the lower court properly dismissed the plaintiff’s subrogation case by enforcing a subrogation waiver in a construction contract which was not fully executed. The contract was signed by only one of the two subrogors and was not signed by the defendant general contractor. The Court of Appeals affirmed the trial court’s decision, holding that despite the lack of signatures, the evidence established mutual assent to the contractual terms by all parties. The plaintiff’s subrogors, Jeffrey and Mary Meyer (collectively, the Meyers), retained defendant Buster & Codgell Builders (BCB) to expand their residence. BCB drafted a contract using the American Institute of Architects (AIA) standard form contract for residential construction. The AIA contract included, by reference, a subrogation waiver that applied to BCB and its subcontractors. Prior to beginning the work, BCB emailed Jeffrey Meyer a version of the contract that only had one signature block for both Jeffrey and Mary Meyer. Minutes later, BCB sent a second version of the contract which had a signature line for each of the Meyers. However, Jeffrey Meyer signed the first version of the contract and emailed it back to BCB. In the subject line of his email, Mr. Meyers asked that BCB countersign and return the contract. BCB did not sign and return the contract. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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