Seattle Washington Building Expert Directory

Tips for Drafting Construction Contracts

May 04, 2020 — Stuart Rosen - Construction Executive
When negotiating a construction contract, a contractor and its advisers must first determine the areas of greatest concern. For example, if the contractor believes that the drawings that were prepared by the architect and other design professionals are deficient, the contractor may want to reference those deficiencies in the contract. The contractor should emphasize that it is not responsible for the drawings and to the extent the project schedule is extended to allow the parties to address such issues with the drawings, the contractor would be entitled to additional compensation. This article provides contractors with additional tips, with a broad focus on project delays, for their protection when negotiating and drafting construction contracts, and helps contractors understand the rationale for such tips to better prepare contractors in such negotiations. Contractor’s liability to the owner for delay damages It is imperative that the contract include a waiver of claims for consequential damages. AIA Document A201TM – 2017 includes such a waiver, which provides, in pertinent part, “The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract … This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 14.” Reprinted courtesy of Stuart Rosen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Rosen may be contacted at srosen@proskauer.com

Coverage For Advertising Injury Barred by Prior Publication Exclusion

July 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Ninth Circuit held that a claim for advertising injury was properly denied under the prior publication exclusion. Street Surfing, LLC v. Great Am. E&S Ins. Co., 2014 U.S. App. LEXIS 10737 (9th Cir. June 10, 2014). Street Surfing began selling a two-wheeled, inline skateboard called the "Wave" in December 2004. By 2007, Street Surfing also sold and advertised accessories for the Wave, such as "Lime Green Street Surfing Wheels for The Wave," and the "New Ultimate Street Surfer Wheel Set." Rhyn Noll, who owned the registered trademark "Streetsurfer," sued Street Surfing in June 2008, claiming trademark infringement, unfair competition and unfair trade practices. Street Surfing had known that Noll owned the "Streetsurfer" trademark since early 2005. In September 2008, Street Surfing submitted a claim for coverage to Great American and tendered Noll's complaint. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

West Coast Casualty Construction Defect Seminar Announced for 2014

October 30, 2013 — CDJ STAFF
Organizers describe the even as “America’s largest, America’s favorite, America’s best construction defect seminar.” And in 2014, they will hold the twenty-first of these annual construction defect seminars. As for size, last year’s event comprised 1,614 attendees, travelling not only from across the county, but from outside the United States as well. West Coast Casualty is beginning to line up its speakers for next May’s seminar. The organizers are asking speakers to submit proposed topics by November 25 and the list will be finalized on December 15. The theme for the event will be “Back to Business … Working Smarter … Not Harder.” While West Coast Casualty is looking for topics that focus on the central theme, they are also interested in presentations on emerging trends in construction defect litigation. In addition to seminars, there will be booths for many of the companies in the construction defect resolution industry, demonstrating products and services of use to professionals in the field. This gives attendees a chance for less-structured interaction than is possible within a seminar. Continuing education credits were granted for the 2013 seminar by a lengthy list of organizations, which included the Bar Associations of 22 states and the Departments of Insurance of 35. The 2014 West Coast Casualty Construction Defect Seminar will be held May 15 and 16 at the Disneyland Hotel and Resort. During the seminar comes the awarding of the prestigious Jerrold S. Oliver Award of Excellence, named in honor of the late Judge Jerrold S. Oliver, who was known for his skills as a mediator. In 2013, the “Ollie” was awarded to Margie Luper in acknowledgement of her contributions to the betterment of the construction defect resolution field. The recipients of the Jerrold S. Oliver Award of Excellence are selected by the votes of about 6,000 industry professionals. Read the court decision
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Can’t Get a Written Change Order? Document, Document, Document

August 29, 2018 — Todd M. Heffner - Smith Currie
Most construction contracts require that any changes to the work be made formally, in writing, via a change order, work directive, or similar written document. Frequently, however, changes to the work or extra work are communicated orally by the architect, engineer, or owner’s representative, instead of in writing. What is the contractor to do in such a situation? The best option is follow the provisions of the contract and demand a written change order before performing changed work. Unfortunately, the realities of construction sometimes make it impossible to get the changes in the proper format in a timely manner. Savvy contractors will maintain schedule and produce written documentation of the change in lieu of a formal change order or directive. But many contractors will simply proceed with the changed work, relying on the owner, architect, or engineer to do the right thing and stand by their oral instructions. Read the court decision
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Reprinted courtesy of Todd M. Heffner, Smith Currie
Mr. Heffner may be contacted at tmheffner@smithcurrie.com

Contractors Pay Heed: The Federal Circuit Clarifies Two Important Issues For Bid Protestors

September 13, 2021 — Andrew Balland - ConsensusDocs
The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently decided two cases that are relevant to many disappointed offerors considering a bid protest. One decision rendered in March 2021 confirmed the authority of the United States Court of Federal Claims (COFC) to hear a protest based on an agency’s breach of an implied-in-fact contract. A second decision issued in February 2021 reversed a COFC decision from last year regarding the timeliness requirements to obtain a CICA stay and their interplay with Department of Defense (DoD) enhanced debriefing regulations. Federal Circuit Confirms The Court Of Federal Claims’ Jurisdiction Over Procurement-Related Implied Contract Claims When a contractor’s bid protest is denied by the Government Accountability Office (GAO), the unsuccessful protestor may challenge the GAO’s decision as arbitrary and capricious in an action before the COFC. While 28 U.S.C. § 1491(b)(1) authorizes the COFC to hear such procurement-related challenges, § 1491(a) also permits the court to adjudicate claims against the United States based on any express or implied contracts. Read the court decision
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Reprinted courtesy of Andrew Balland, Watt, Tieder, Hoffar & Fitzgerald, LLP

More In-Depth Details on the Davis-Bacon Act Overhaul

November 06, 2023 — Seth C. Wiseman & Angela M. Richie - Construction Executive
The U.S. Department of Labor’s finalization of a rule updating the Davis-Bacon Act, the federal law that governs how prevailing wages for federal construction projects can be determined, will have a significant impact on contractors and workers alike in the construction industry. The new rule, in effect, adopts the 30% rule, meaning that the prevailing wages must be equal to the wage paid to at least 30% of workers of a particular classification in a particular area. The new rule also implements a new anti-retaliation provision, specifically protecting construction workers who raise concerns about payment practices from adverse employment actions. The timing of this new rule is particularly significant for contractors, as it will likely raise the cost of labor for contractors at a time when the Infrastructure Investment and Jobs Act and the CHIPS Act are providing additional funding for federal projects across the country. Thus, it is important for all parties in the construction industry to understand the updated rule in order to evaluate the short-term impacts on their respective projects and long-term impact on their respective businesses. Reprinted courtesy of Seth C. Wiseman & Angela M. Richie, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Wiseman may be contacted at swiseman@grsm.com Ms. Richie may be contacted at arichie@grsm.com Read the court decision
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Know When Your Claim “Accrues” or Risk Losing It

August 20, 2019 — Christopher G. Hill - Construction Law Musings
I have discussed statutes of limitation on construction claims in various contexts from issues with a disconnect on state projects to questions of continuous breach here at Construction Law Musings. For those that are first time readers, the statute of limitations is the time during which a plaintiff can bring its claim, whether under the Virginia Consumer Protection Act (VCPA), for breach of contract, or for any other legal wrong that was done to him, her or it by another. The range of limitations runs the gamut of times, for instance it is 5 years for breach of a written contract and 6 months for enforcement of a mechanic’s lien. This time period is calculated from the “accrual” of the right of action. “Accrual” is, in general terms, when the plaintiff was originally harmed or should have known it was harmed (depending on the particular cause of action). A recent case out of the Circuit Court of Norfolk, Virginia examined when a cause of action for a construction related claim under the VCPA accrued and thus whether the plaintiff’s claim was timely. In Hyde Park Free Will Baptist Church v. Skye-Brynn Enterprises Inc., the Court looked at the following basic facts (pay attention to the dates): The Plaintiff, Hyde Park Baptist Church, hired the Defendant, Skye-Brynn Enterprises, Inc., to perform certain roof repairs that were “completed” in 2015. Shortly after the work was done, in 2015, the Plaintiff informed Defendant that the roof still leaked and that some leaks were worse than before. The Defendant unsuccessfully attempted repair at the time. 14 months later in 2017, the church had other contractors examine the roof and opine as to its faulty installation. Also in 2017, the church submitted roof samples to GAF, the roof membrane manufacturer and in February 2018 GAF responded stating that the leaks were not due to manufacturing defects. The church filed its complaint on October 1, 2018 breach of contract, breach of warranty of workmanship and fraud in violation of the VCPA. Defendant responded with a plea in bar, arguing that the statute of limitations barred the claim. 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

Quick Note: Insurer’s Denial of Coverage Waives Right to Enforce Post-Loss Policy Conditions

November 02, 2017 — David Adelstein - Florida Construction Legal Updates
There is ostensibly a big difference between an insurance carrier DENYING coverage and simply asking for additional information, as permitted under the post-loss conditions of a property (first-party) insurance policy, right? Typically, the answer is yes and there is a big difference. If an insured refuses to comply with post-loss conditions under their insurance policy, they are shooting themselves in the foot (in most cases) by giving the insurer an out when it comes to coverage. If an insurance carrier denies coverage, however, the insurance carrier cannot then require its insured to comply with post-loss conditions in the property insurance policy. 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

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