Seattle Washington Building Expert Directory

It’s All a Matter of [Statutory] Construction: Supreme Court Narrowly Interprets the Good Faith Dispute Exception to Prompt Payment Requirements in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.

May 30, 2018 — Erinn Contreras & Joy O. Siu - Sheppard Mullin Construction & Infrastructure Law Blog
On May 14, 2018, the California Supreme Court issued its opinion in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, slip. op. (Cal. Sup. Ct. May 14, 2018). In it, the Court narrowly construed the “good faith” exception to the general rule that a direct contractor must make retention payments to its subcontractors within 10 days of receiving any retention payment. The exception provides that “[i]f a good faith dispute exists between the direct contractor and a subcontractor, the direct contractor may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” Cal. Civ. Code section 8814(c). Reprinted courtesy of Erinn Contreras, Sheppard Mullin and Joy O. Siu, Sheppard Mullin Ms. Contreras may be contacted at econtreras@sheppardmullin.com Ms. Siu may be contacted at jsiu@sheppardmullin.com Read the court decision
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Close Enough Only Counts in Horseshoes and Hand Grenades

March 08, 2021 — Garret Murai - California Construction Law Blog
In State Farm General Insurance Company v. Oetiker, Inc., Case No. B302348 (December 18, 2020), a manufacturer sued in subrogation action under the Right to Repair Act almost got away. Almost. The Oetiker Case James and Jennifer Philson’s home was substantially completed, and a notice of completion was recorded, in 2004. In 2016, the Philsons tendered a claim to their homeowner’s insurance carrier, State Farm General Insurance Company, after their home experienced significant water damage due to a defective stainless steel ear clamp. In 2018, after paying the Philson’s claim, State Farm filed a subrogation action against the manufacturer of the ear clamp, Oetiker, Inc. State Farm’s complaint, which included causes of action for negligence, strict products liability and breach of implied warranty, alleged that the home was “damaged by a water leak from the failure of a defective stainless steel ear claim on a water PEX fitting” and that the ear clamp was “defective when it left the control of [Oetiker].” Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

DOE Abruptly Cancels $13B Cleanup Award to BWXT-Fluor Team

February 01, 2021 — Mary B. Powers & Debra K. Rubin - Engineering News-Record
The U.S. Energy Dept. has cancelled a $13-billion, 10-year contract awarded just a few months ago to a team led by BWXT Technical Services and Fluor Federal Services to manage millions of gallons of radioactive waste stored underground at its Hanford, Wash., former weapons site—confirming plans for a major scope expansion and lengthy reprocurement but sharing few details. Reprinted courtesy of Mary B. Powers, Engineering News-Record and Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Bill to Include Coverage for Faulty Workmanship Introduced in New Jersey

December 04, 2013 — CDJ STAFF
On November 25, Gary S. Schaer, a Democrat from Bergen and Passic, introduced a bill into the New Jersey legislature that would require insurers to cover faulty workmanship. The bill would require commercial liability insurance policies to cover “property damage or bodily injury resulting from faulty workmanship.” Policies that do not provide this coverage could not be offered in the state of New Jersey should the measure pass and be enacted into law. Read the court decision
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A Few Green Building Notes

December 02, 2019 — Christopher G. Hill - Construction Law Musings
This past week, the blogosphere (if that’s even the word these days) has been abuzz about green building and the value that green can add to a project. Three items in particular (among many) got my attention. The first of these was the fact that a new private sustainability rating system is ready for launch. The Institute for Sustainable Infrastructure (or ISI) is seeking public comment on its proposed envISIon. This new system (aptly dubbed Version 1.0) will go “live” in July for comment. Why mention this new system? First of all, ISI’s founding members are the American Society of Civil Engineers (ASCE), the American Public Works Association (APWA) and the American Council of Engineering Companies (ACEC). This trio gives the new program some fairly heavy weight backing. Second, while there are rating systems aside from the ever present LEED, none have taken hold in any real way to compete with LEED. I am curious to see if the envISIon system has any better luck. Finally, this shows that sustainable building is of interest to more than the USGBC and those of us that discuss LEED on a daily basis. I find this to be a great thing that could lead to more societal acceptance of sustainable practices as a standard practice rather than a goal. Hopefully such efforts will offset the other two notes that caught my eye recently. The first of these is the foreclosure of the Chapel Hill, North Carolina Greenbridge project. This project is well documented at my friend Doug Reiser’s (@douglasreiser) Builders Counsel blog so I won’t further discuss the details here. However, the question that Doug asks is a good one, i. e. were the “green” elements of the project to blame? 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

A Court-Side Seat: Appeals and Agency Developments at the Close of 2020

December 29, 2020 — Anthony B. Cavender - Gravel2Gavel
THE FEDERAL APPELLATE COURTS The U.S. Court of Appeals On November 23, 2020, the court, in a 2-to-1 vote, rejected the plaintiff’s request for an emergency injunction pending appeal in the case of Manzanita Band of Kumeyaay Nation, et al. v. Wolf. The majority held the requirement for such relief did not meet the requirements set forth in Winter v. NRDC, 555 US 7 (2008). Here, the plaintiffs allege that that the government’s construction of a border wall violates several environmental laws that were illegally waived by the Secretary of the Interior. Judge Millett dissented in part because the plaintiffs demonstrated a likelihood of success on the merits. She pointed to the argument that the authority of the Secretary—or Acting Secretary—to take these actions has been successfully challenged in several federal district courts. An expedited pleading schedule was established by the court. The U.S. Court of Appeals for the Fourth Circuit On November 17, 2020, in Ergon-West ,Inc. v. EPA, the court again reversed the EPA’s decision denying regulatory relief to a small refinery seeking a waiver of the renewable fuels mandate of the Clean Air Act. Ergon is a small refinery and requested relief in the basis of the economic harm that compliance would entail. In 2018, the court ruled in Ergon’s favor and remanded the case back to the agency. After relief was again denied, the court held that “Ergon has come forward with sufficient evidence undermining one aspect” of the agency’s latest decision, and the ruling was returned to EPA for additional analysis. It appears that a complicated process has become even more complicated. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Eyerly may be contacted at te@hawaiilawyer.com

The Colorado Court of Appeals Rules that a Statutory Notice of Claim Triggers an Insurer’s Duty to Defend.

October 23, 2012 — David M. McLain, Higgins, Hopkins, McLain & Roswell

Gene and Diane Melssen d/b/a Melssen Construction (“Melssen”) built a custom home for the Holleys, during which period of time Melssen retained a CGL insurance coverage from Auto Owners Insurance Company. Soon after completion of the house, the Holleys noticed cracks in the drywall and, eventually, large cracks developed in the exterior stucco and basement slab. Thereafter, the Holleys contacted Melssen, the structural engineer, an attorney, and Auto-Owners, which assigned a claims adjuster to investigate the claim.

In April 2008, the Holleys sent Melssen a statutory notice of claim pursuant to C.R.S. § 13-20-803.5 (“NOC”). In this NOC, the Holleys claimed approximately $300,000 in damages related to design and construction defects. The Holleys also provided a list of claimed damages and estimated repairs, accompanied by two reports from the Holleys’ consultant regarding the claimed design and construction defects. In June 2008, Melssen tendered the defense and indemnity of the claim to Auto-Owners. While Auto-Owners did not deny the claim at that time, it did not inspect the property or otherwise adjust the claim. Thereafter, in October 2008, Auto-Owners sent Melssen a letter denying coverage on the basis that the damage occurred outside of the applicable policy period.

Ultimately, Melssen settled the claims against it for $140,000.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC. Mr. McLain can be contacted at mclain@hhmrlaw.com

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Did the Court of Appeals Just Raise the Bar for California Contractors to Self-Report Construction-Related Judgments?

June 10, 2015 — Garret Murai – California Construction Law Blog
An interesting construction case just came out from the California Court of Appeals for the Second District this past month – Pacific Caisson & Shoring, Inc. v. Bernards Bros., Inc., California Court of Appeals for the Second District, Case No. B248320 (May 19, 2015) – which discusses a number of intertwining issues that can be faced by contractors in California and concludes with a result that I’m not sure I quite agree with. Among the issues discussed by the Court of Appeal were:

The application of the dreaded Business and Professions Code section 7031 which: (1) precludes a contractor from making a claim for payment for work performed; and (2) requires a contractor to disgorge all monies received for work performed, if the contractor was not properly licensed at all times that work was performed;
The impact of an unsatisfied judgment against one contractor on the license of another “related” contractor; and
Whether a stipulated judgment providing for payments over time is an unsatisfied final judgment under the Licensing Law.

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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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