SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Affirmed

June 22, 2016 — Wally Zimolong – Supplemental Conditions
Today, in a precedential opinion, the Third Circuit Court of Appeals, affirmed the District Court’s dismissal of a complaint against my client that alleged that a multi-family building was constructed in violation of the Federal Housing Administration’s (FHA) design and accessibility requirements for disabled persons. A copy of the Opinion can be found here ( Opinion of 3rd Circuit . ) An adverse decision would have meant that my client could have been exposed to making several million dollars in alterations to its building. Read the court decision
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Reprinted courtesy of Wally Zimolong, Supplemental Conditions
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Mandatory Attorneys’ Fee Award for Actions Brought Under the Underground Utility Damage Prevention Act

September 22, 2016 — Lindsay K. Taft – Ahlers & Cressman PLLC
In Washington, RCW 19.122 (the Underground Utility Damage Prevention Act or “Call Before You Dig” statute) provides for the protection of underground utilities. The statute was recently updated in 2013 and provides that homeowners and contractors must call “811” to schedule a “utility locate” prior to commencing any excavation. Failure to do so can result in steep penalties, as well as a mandatory fee award for the prevailing party. Read the court decision
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Reprinted courtesy of Lindsay K. Taft, Ahlers & Cressman PLLC
Ms. Taft may be contacted at ltaft@ac-lawyers.com

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Toolbox Talk Series Recap – Best Practices for Productive Rule 26(f) Conferences on Discovery Plans

May 13, 2024 — Douglas J. Mackin - The Dispute Resolver
In the April 4, 2024 edition of Division 1’s Toolbox Talk Series, Julian Ackert and Steve Swart presented on how to prepare for and structure Rule 26(f) conferences to be more effective. While Swart and Ackert focused on the requirements of Federal Rule of Civil Procedure 26(f) regarding the requisite conference of the parties prior to a scheduling conference or scheduling order, it is worth noting that many states have substantially similar requirements. Rule 26(f) requires the parties to (i) discuss the nature and basis of their claims or defense; (ii) make or arrange for mandatory disclosures pursuant to Rule 26(a)(1); (iii) discuss issues about preserving discoverable information (including Electronically Stored Information – “ESI”); and (iv) develop a proposed discovery plan. Swart and Ackert’s presentation focused on the preservation of ESI and the proposed discovery plan. Read the court decision
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Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
Mr. Mackin may be contacted at dmackin@cozen.com

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No Coverage for Construction Defect Claim Only Impacting Insured's Work

January 08, 2024 — Tred R. Eyerly - Insurance Law Hawaii
In a coverage dispute between two insurers over a claim for damages caused by faulty workmanship, the court found there was no right to equitable contribution or indemnity. Travelers Prop. Cas. Co. of Am. v. Mallcraft, Inc., 2023 Cal. Super. LEXIS 67568 (Cal. Super. Ct. Sept. 15, 2023). Mallcraft was the general contractor for a building project and was sued for construction defects. Travelers was an additional insured under a policy issued to a subcontractor, KitCor. Travelers defended Mallcraft in an arbitration. Travelers sought equitable contribution and equitable indemnity from Hartford, Mallcraft's insurer. Mallcraft and Travelers stiulated to a judgment agianst Mallcraft for all costs Travelers incurred in the arbitration. Travelers' insured, KitCor, was not implicated in the construction defect claims against Mallcraft. The judgment set forth findings, including the fact that the underlying plaintiff never made any claim that KitCor perfomred work on the project or casued property damage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Resurgent Housing Seen Cushioning U.S. From World Woes: Economy

January 28, 2015 — Steve Matthews – Bloomberg
(Bloomberg) -- Real estate developer Crescent Communities in Charlotte, North Carolina, expects to sell 1,000 new homes this year across the Southeast U.S. and Texas, double the number of two years ago. “Demand is the strongest since the recession” that ended in June 2009 and stemmed from the collapse in housing, said Chief Executive Officer Todd Mansfield. “The economy is getting better and the labor market is getting better.” Read the court decision
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Reprinted courtesy of Steve Matthews, Bloomberg
Mr. Matthews may be contacted at smatthews@bloomberg.net

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Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?

March 05, 2015 — William L. Porter – Porter Law Group, Inc.
The “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Completion will not prevent enforcement of a California Mechanics Lien. The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property. The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property. What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien. The usual error is two-fold. First, the statute states that the Notice is available when the owner “did not contract for the work of improvement”. The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner’s contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first “has knowledge” of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge. The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective. The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham “tenants” who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility. For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner). William L. Porter of Porter Law Group, Inc. located in Sacramento, California may be contacted at (916) 381-7868 or bporter@porterlaw.com Read the court decision
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Reprinted courtesy of

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Drafting or Negotiating A Subcontract–Questions To Consider

June 21, 2021 — David Adelstein - Florida Construction Legal Updates
When it comes to drafting and negotiating a subcontract, there are provisions that should be important to you from a risk assessment standpoint. From the subcontractor’s standpoint, below are questions you should ask, or issues you should consider, as you go through the subcontract. These are the same questions and issues that are also important to a contractor as the contractor will want to ensure these issues are included in the subcontract. By asking yourself these questions, you can check to see how the subcontract addresses these issues, and how the risk should be negotiated. Hopefully, you are working with counsel to make sure you understand what risk you are assuming and those provisions you want to try to push back on. Asking yourself these questions, or considering these questions, will help you go through the subcontract with a purpose based on the risk profile of the project and certain risk you don’t want to assume.

• Prime Contract –> Does the subcontract incorporate the prime contract? Make sure to request the prime contract since the subcontract will identify the prime contract as part of the Subcontract Documents and will require you to assume towards the contractor the same obligations the contractor is required to assume towards the owner.
• Scope of Work –> What is the scope of work? Is it clear. Make sure the scope is clear and you understand the scope.

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

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GIS and BIM Integration Will Transform Infrastructure Design and Construction

October 09, 2018 — Nicolas Mangon - Engineering News-Record
An unfortunate fact of the architecture and engineering professions and the construction industry is that, between every stage of the process—from planning and design to construction and operations—critical data is lost. Read the court decision
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Reprinted courtesy of Nicolas Mangon, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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