SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Natural Disasters’ Impact on Construction in the United States

December 14, 2020 — Robert S. Peckar & Crystal T. Dang - Construction Executive
In these times of easy and instant access to news from around the globe, the effects of major earthquakes in Indonesia and Mexico, cyclones in Southeast Asia, Tsunamis around the world, volcanoes in Europe in unexpected places and, of course, raging forest fires and hurricanes in the United States are frequently in the news. Accompanying each of these disasters are immediate threats to construction projects, both physical and those affecting the safety and health of personnel. However, after the dust settles or the waters recede, myriad issues will become obstacles to the road to recovery for a contractor to navigate. In 2020 alone, the volume of strong storms and forest fires have focused so much attention on the impact of disasters. The purpose of this article is to provide guidelines in anticipation of disasters, for reviewing the impact of a disaster as it is happening, and developing a mitigation plan to limit losses. Anticipating Disasters The best time to prepare for a disaster on a project is before the project starts. Reviewing contract rights, insurance policies and company disaster response protocols while a category 3 hurricane is a day away is not a best practice. To avoid falling into that situation, a contractor should follow the following guidelines. Doing so facilitates proper action during the actual disaster itself and in the aftermath. Reprinted courtesy of Robert S. Peckar & Crystal T. Dang, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Peckar may be contacted at rpeckar@pecklaw.com Ms. Dang may be contacted at cdang@pecklaw.com Read the court decision
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Construction Worker Dies after Building Collapse

November 18, 2011 — CDJ STAFF

A Bronx construction worker died when the pillars gave way in the basement where he was working. The two-story commercial building collapsed, burying Mr. Kebbeh under about six feet of rubble. The New York Times reports that firefighters dug him out with their bare hands. Mr. Kebbeh was taken to Jacobi Medical Center where he died. Two other construction workers escaped unharmed.

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Congratulations to Partner John O’Meara for Being Named as One of America’s Top 100 Civil Defense Litigators for Three Consecutive Years!

September 20, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Please join Bremer Whyte Brown & O’Meara, LLP in congratulating Woodland Hills Partner John O’Meara for being selected as one of America’s Top 100 Civil Defense Litigators for the third year in a row! Membership among America’s Top 100 Civil Defense Litigators highlights the accomplishments of the nation’s most esteemed and skilled Civil Defense attorneys. Only 100 attorneys in each state receive this honor and candidates for membership are identified through third-party research or peer nominations by America’s Top 100 or elite attorneys in the community. Candidates are judged by the attorney’s lifetime legal achievements, professional experience, significant case results, peer reputation, client satisfaction, other notable honors, media notoriety, and community impact. Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP Read the full story... Read the court decision
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Measure of Damages for a Chattel Including Loss of Use

November 16, 2020 — David Adelstein - Florida Construction Legal Updates
In a non-construction case, but an interesting case nonetheless, the Second District Court of Appeals talks about the measure of damages when dealing with chattel (property) including loss of use damages. Chattel, you say? While certainly not a word used in everyday language, a chattel is “an item of tangible movable or immovable property except real estate and things (such as buildings) connected with real property.” Equipment, machinery, personal items, furniture, etc. can be considered chattel. With respect to the measure of damages for a chattel:

“Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value,” the plaintiff may make an election out of two theories of recovery in addition to compensation for the loss of use. Badillo v. Hill, 570 So. 2d 1067, 1068 (Fla. 5th DCA 1990) (quoting Restatement of Torts § 928 (Am. Law Inst. 1939)). In addition to compensation for the loss of use, the plaintiff may elect either “the difference between the value of the chattel before the harm and the value after the harm” or “the reasonable cost of repairs or restoration where feasible, with due allowance for any difference between the original value and the value after repairs.” Id. (quoting Restatement of Torts § 928).

Sack v. WSW Rental of Sarasota, LLC, 45 Fla.L.Weekly D2306a (Fla. 2d DCA 2020). Sack is a good example of a case dealing with the measure of damages with a chattel, here, an aircraft, including loss of use damages. Read the court decision
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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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Exculpatory Provisions in Business Contracts

May 30, 2018 — David Adelstein - Florida Construction Legal Updates
An exculpatory provision in a contract is a provision that relieves one party from liability for damages. It shifts the risk of an issue entirely to the other party. Such a provision is generally drafted by the party preparing the contract that is looking to eliminate or disclaim liability associated with a particular risk, oftentimes a risk within their control. These provisions are also known as limitation of liability provisions because they do exactly that — limit liability as to a risk. For this reason, they can be useful provisions based on the context of certain risks, and are provisions that are included in business contracts (such as construction contracts). While such clauses are disfavored, they are enforceable if they are drafted clearly, unambiguously, and unequivocally. If they are unclear, ambiguous, or equivocal, they will construed against enforcement. See Obsessions In Time, Inc. v. Jewelry Exchange Venture, LLP, 43 Fla.L.Weekly D1033a (Fla. 3d DCA 2018) (finding exculpatory clause in lease ambiguous and, therefore, unenforceable as to lessor looking to benefit from the exculpatory clause). 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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California Governor Signs SB 496 Amending California’s Anti-Indemnity Statute

June 05, 2017 — William S. Bennett - Saxe Doernberger & Vita, P.C.
The bill amends Cal. Civ. Code § 2782.8 as it applies to indemnity agreements with design professionals. The pre-existing § 2782.8 prohibited public agencies from requiring indemnity from design professionals for anything other than claims arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of the design professional. Under the newly passed bill, the indemnity restrictions imposed on public agencies when contracting with design professionals will now apply to all parties contracting with design professionals for professional services (effective Jan. 1, 2018). These restrictions also apply to a party contractually imposing a defense obligation on the design professional. The revised statute specifically identifies architects, landscape architects, professional engineers, and professional land surveyors as included within the meaning of “design professional,” however it is unclear whether that is the extent of the phrase’s meaning. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

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Insurance Company Must Show that Lead Came from Building Materials

August 17, 2011 — CDJ STAFF

The Fourth Circuit Court of Appeals for Louisiana has reversed the summary judgment of a lower court in the case of Widder v. Louisiana Citizens Property Insurance Company. Judge Roland L. Belsome wrote the opinion for the panel of three judges. Ms. Widder discovered that her home and its content were contaminated by lead. She applied to her insurer, Louisiana Citizens Property Insurance, which denied her claim.



In response to Ms. Widder’s suit, LCPIC applied for a summary judgment on the grounds that there was no physical loss and that the policy did not cover defective material, latents defects, and pollution damage.



The appeals court found that the lead contamination of Widder’s home did meet the standards of a direct physical loss, citing a recent Chinese Drywall case. There, it was found, “when a home has been rendered unusable or uninhabitable, physical damage is not necessary.”



The lower court addressed only one of LCPIC’s exclusions, addressing only the exclusion on basis of “faulty, inadequate or defective material.” The appeals court noted that the evidence offered at trial does not show that the building materials were the source of the lead. This provided the appeals court with a matter of fact to remand to the lower court.

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Florida’s Statute of Limitations / Repose for Actions Founded on Construction Improvement Modified

April 25, 2023 — David Adelstein - Florida Construction Legal Updates
On April 13, 2023, Florida’s all-important four-year statute of limitations–Florida Statute s. 95.11(3)(c)–relating to actions founded on construction of an improvement of real property was modified. This is a key statute of limitations for ALL construction practitioners because it also includes the statute of repose for latent construction defects. At the bottom of this posting is the current version fo s. 95.11(3)(c) with the underlined section being recent additions. (They hyperlink above will identify the deletions and additions.) Important things to note:

• Statute of Repose. The statute of repose has been reduced from 10 years to 7 years. There is now an objective date for when the repose period commences: “within 7 years after the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, or the date of abandonment of construction if not completed, whichever date is earliest.”

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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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