Seattle Washington Building Expert Directory

Application of Frye Test to Determine Admissibility of Expert

April 03, 2019 — David Adelstein - Florida Construction Legal Updates
Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony. The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles. See D.R. Horton, Inc. v. Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology. However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties. The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal. The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal. One issue on appeal was the admissibility of the expert’s opinion. The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Employees in Construction Industry Entitled to Compensation for Time Spent Complying with Employer-Mandated Security Protocols

August 19, 2024 — Garret Murai - California Construction Law Blog
Wage and hour laws dictating how employers must compensate their employees for time worked can, given the innumerable ways that employees perform their jobs, raise a number of questions. The next case, Huerta v. CSI Electrical Contractors, 15 Cal.5th 908 (2024) – which I won’t spend a lot of time discussing since I think it applies in somewhat limited situations – addresses whether employees are entitled to be paid while waiting to enter and exit worksites and for meal periods when they are not allowed to exit a worksite. The Huerta Case The 9th Circuit Court of Appeals requested that the California Supreme Court address three questions related to whether employees should be compensated under California wage and hour laws for time spent waiting to enter and exit worksites and for meal periods when they are not allowed to exit a worksite:

Whether employees should be paid for time spent waiting in a personal vehicle to be scanned in and out of a worksite;
Whether employees should be paid for time spent traveling in a personal vehicle from a security gate to employee parking lots; and
Whether employees should be paid during meal periods if they are not permitted to leave a worksite.

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Cold Weather Causes Power Blackouts, Disruptions on Jobsites

February 22, 2021 — Autumn Cafiero Giusti - Engineering News-Record
A February cold snap in the central U.S. has created record power demand, resulting in outages from Texas to North Dakota and contractors bracing for delays and damage from weather impacts. Reprinted courtesy of Autumn Cafiero Giusti, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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California Case That Reads Like Russian Novel Results in Less Than Satisfying Result for Both Project Owner and Contractors

May 01, 2019 — Garret Murai - California Construction Law Blog
Sometimes you can see a train wreck coming a mile away. The next case, Design Built Systems v. Sorokine, Court of Appeal for the First District, Case Nos. A151264 and A152059 (February 26, 2019), is one of those cases. It also happens to read like a Tolstoy novel. The Beginning of the Train Wreck Alexei Sorokine and Elena Koudriavtseva, husband and wife, owned a single family home in San Rafael, California. Sorokine had acquired the house prior to his marriage to Koudriavtseva. In 2010, he traveled to Russia and, for reasons unexplained, has not been able to return. Following a landslide on the property in 2006, Sorokine entered into a construction contract with Design Built Systems to design and build a series of retaining walls. DBS was also retained to remedy a stop work notice issued by the City of San Rafael following work performed by others. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

Contractor Covered for Voluntary Remediation Efforts in Completed Homes

October 10, 2013 — Tred Eyerly — Insurance Law Hawaii
The Texas Supreme Court held that a home builder was covered for the voluntary removal and replacement of a defective insulation product it had installed in hundreds of homes. Lennar Corp. v. Market Am. Ins. Co., 2013 Tex. LEXIS 597 (Tex. Sup. Ct. Aug. 23, 2013). Lennar built homes using an exterior insulation and finish system (EIFS). It was subsequently determined that EIFS trapped water inside homes with wood-frame walls, causing rot and structural damage, mildew and mold, and termite infestation. Lennar decided to contact all its homeowners and offer to remove the EIFS and replace it with conventional stucco. Lennar notified its insurers that it would seek indemnification for the costs. The insurers refused to participate in Lennar's proactive efforts, preferring to wait and respond to homeowners' claims one by one. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

Hail Drives Construction Spending in Amarillo

October 25, 2013 — CDJ STAFF
Amarillo had a hailstorm in May and it’s still having an effect on the construction industry there. Prior to the May 28 hailstorm, the city issued 223 permits for roofing projects, worth a total of $1.9 million. But in the four months after the hailstorm, the city issued 13,696 roofing permits worth about $151.4. During the same nine months of 2012, the total was only $6.9 million. The Amarillo Globe-News reports that there has been a slowing of residential roof work, but the commercial roofing is still going strong. Scott McDonald, an Amarillo building official told the paper that a commercial roof can exceed a million dollars. “The commercial aspect is much more complicated, and we’re just now getting started,” said Mr. McDonald. Read the court decision
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Public Policy Prevails: Homebuilders and Homebuyers Cannot Agree to Disclaim Implied Warranty of Habitability in Arizona

November 01, 2022 — Ryan Bennett - The Subrogation Strategist
In Zambrano v. M & RC II LLC, et al., 2022 Ariz. LEXIS 309, the Supreme Court of Arizona held that a homebuilder and homebuyer could not waive or disclaim the implied warranty of workmanship and habitability. While the court would normally enforce a contract between two parties – even if one side made a “bad deal” – they will not do so if the contract’s terms are against public policy. In this case, Tina Zambrano (Zambrano) signed a purchase agreement with the homebuilder to buy a newly built home. The agreement included provisions which expressly disclaimed any implied warranties, including the warranty of habitability and workmanship. After the purchase, Zambrano claimed that there were construction defects within the home, including popped nails in the drywall and issues with the home’s foundation. Zambrano sued the homebuilder for breach of the implied warranty of workmanship and habitability. The homebuilder moved for summary judgment based on the waivers within the contract and the trial court, agreeing that the waivers applied, dismissed the case. Zambrano appealed and the appellate court reversed the trial court’s decision. The appellate court specifically explained that Arizona has a public policy interest in protecting consumers. Read the court decision
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Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

No Occurrence Where Contract Provides for Delays

March 01, 2017 — Tred R. Eyerly – Insurance Law Hawaii
Applying Montana law, the federal district court found there was no coverage for a subcontractor who was sued by the contractor for breach of the subcontract. Phoenix Ins. Co. v. Ed Boland Constr., Inc., 2017 U.S. Dist. LEXIS 6654 (D. Mont. Jan 18, 2017). Northbank was the general contractor on a project to repair a bridge for the Federal Highway Administration (FHA). Ed Boland Construction, Inc. (EBC) was the subcontractor to perform drilling and pile installation. After beginning its work, EBC ran into difficulties with unforeseen conditions at the work site. The FHA informed Northbank that it had concerns over EBC's ability to complete the work. The FHA alleged that EBC had brought equipment to the work site that differed from the equipment it had represented would be used. 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

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