SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Eleven Payne & Fears Attorneys Honored by Best Lawyers

September 06, 2023 — Payne & Fears LLP
Congratulations to the ten Payne & Fears attorneys included in the 2024 Edition of Best Lawyers® In America and Best Lawyers: Ones to Watch. Attorneys have been recognized in the following practice areas: Best Lawyers in America (2024) Irvine, CA Employment Law – Management Labor Law – Management Litigation – Labor and Employment Jeffrey K. Brown Daniel F. Fears Commercial Litigation Litigation – Real Estate Daniel M. Livingston Thomas L. Vincent Read the court decision
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Reprinted courtesy of Payne & Fears LLP

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OSHA Reinforces COVID Guidelines for the Workplace

March 08, 2021 — Joseph P. Paranac Jr. & Robert M. Pettigrew - White and Williams LLP
On January 29, 2021, the Occupational Safety and Health Administration (OSHA) updated its existing guidelines concerning coronavirus protection measures for the workplace. Focusing on the implementation of workplace protection programs, OSHA’s updated advisory guidance seeks to reinforce the benefits of implementing workplace policies along with the critical role employees have in combatting workplace spread. These guidelines are “intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement.” OSHA maintains that the implementation of a strong coronavirus protection program is the most effective way to combat virus spread in the workplace. OSHA has identified 16 categories or elements that an effective coronavirus protection program should address, which include appointing a workplace coordinator and conducting a workplace specific hazard assessment. This assessment should begin by identifying risks in the workplace and developing control measures to mitigate them. The guidance stresses that workers are often the most valuable source of information relating to conditions that contribute to the risk of spread. Reprinted courtesy of Joseph P. Paranac Jr., White and Williams LLP and Robert M. Pettigrew, White and Williams LLP Mr. Paranac may be contacted at paranacj@whiteandwilliams.com Mr. Pettigrew may be contacted at pettigrewr@whiteandwilliams.com Read the court decision
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Keeping Detailed Records: The Best Defense to Constructive Eviction

October 24, 2023 — Ben T. Welch & Ken Brown - Snell & Wilmer
Inevitably, commercial property owners and managers will be faced with a claim by a tenant of constructive eviction. This article is intended to describe what constructive eviction is and to suggest what owners and managers can do to prepare for, and ward off, such claims. Constructive eviction occurs where a tenant’s “right of possession and enjoyment” of the leasehold is disrupted by the landlord in a manner that renders the premises “unsuitable for the purposes intended.”i Put another way, it is interference that is so “substantial nature and so injurious as to deprive the tenant of the beneficial enjoyment of a part or the whole of the demised premises.”ii Although easy to describe in theory, constructive eviction can be devilishly difficult to determine in the real world. In litigation, determining when interference crosses over the line to constructive eviction is intensely fact-sensitive and resists sweeping generalizations.iii For instance, Utah courts have held that tenants have been constructively evicted when they have been subjected to continual harassment or insults by the landlord or the landlord’s agent,iv prevented or impaired in their access to the leased premises during operating hours,v or when a landlord fails to provide an operable elevator (or other essential commercial amenities) necessary for a tenant’s business operations.vi By contrast, claims of “discomfort” or “inconvenience” have been rejected as a basis for constructive eviction.vii The same goes for claims that a landlord wrongfully served a three-day notice to pay or quit.viii Generally, constructive eviction is an affirmative defense made in response to a landlord’s lawsuit for nonpayment of rent.ix It is not, as is commonly supposed, a basis for a tenant’s premature abandonment of the premises. In other words, the defense is raised after the tenant has vacated as a result of being effectively “evicted.”x Further, the defense requires the tenant to actually abandon the premises and do so within a “reasonable time” after the alleged interference.xi A tenant cannot stay in possession and simply refuse to pay rent on the basis of constructive eviction.xii The key consideration in preparing for, and responding to, a claim of constructive eviction is keeping good records. A tenant claiming constructive evicting likely must prove that the issue was raised in a timely manner and, despite multiple entreaties, was never resolved.xiii As such, it is critical that landlords acknowledge tenant complaints as well as document in writing their efforts to ameliorate those complaints. While a landlord does not carry the burden of proof for constructive eviction, detailed documentation can thwart a tenant’s claim that a landlord has been inattentive or unwilling to address the tenant’s concerns. Detailed records are also useful in disputes where a tenant claims substantial interference. “The whole point of constructive eviction is that the landlord basically drove the tenant out through the landlord’s action or inaction.”xiv As such, a landlord that is unable to document the steps taken in response to complaints will be grossly disadvantaged whereas the tenant, which had control and knowledge of the premises, will have a much easier time describing how the alleged interference deprived them of enjoying the premises. Even with meticulous records, however, owners and managers may still face claims of construction eviction. In such instances, counsel should be retained to properly advise on compiling, preserving, and employing the evidence necessary to refute the tenant’s claims. i Gray v. Oxford Worldwide Grp., Inc., 139 P.3d 267, 269 (Utah Ct. App. 2006). ii Gray, 139 P.3d at 270 (citing Neslen, 254 P.2d at 850) (internal formatting omitted). iii See Gray, 139 P.3d at 269–70 (citing Thirteenth & Washington Sts. Corp. v. Neslen, 254 P.2d 847, 850 (Utah 1953)); Brugger v. Fonoti, 645 P.2d 647, 648 (Utah 1982). iv See Gray, 139 P.3d at 270–71. v Thirteenth & Washington Sts. Corp. v. Neslen, 254 P.2d 847 (Utah 1953). vi See Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368, 375, 378 (Utah 1996) (citing Union City Union Suit Co. v. Miller, 162 A.D.2d 101, 556 N.Y.S.2d 864 (1990)). vii See Myrah v. Campbell, 163 P.3d 679, 682–84 (Utah Ct. App. 2007). viii Barton v. MTB Enterprises, 889 P.2d 476, 477 (Utah Ct. App. 1995); see also Brugger, 645 P.2d at 648 (stating that the tenant’s complaints revolved around standard problems commonly associated with building maintenance and did not rise to the level of substantial interference); viv Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 898–900 (Utah 1989) (upholding trial court’s findings of fact concerning insufficiency of disruption so as to justify claim for constructive eviction). ix See Kenyon v. Regan, 826 P.2d 140, 142 (Utah Ct. App. 1992). x See Kenyon, 826 P.2d at 142. xi See Kenyon, 826 P.2d at 142; see also Barton v. MTB Enterprises, Inc., 889 P.2d 476, 477 (Utah Ct. App. 1995); Brugger, 645 P.2d at 648. xii See Kenyon, 826 P.2d at 142 (citing Fernandez v. Purdue, 518 P.2d 684, 686 (Utah 1974)). xiii See Brugger, 645 P.2d at 648 (noting that while the tenant had raised legitimate issues concerning state of the premises, the landorld had taken steps to remedy the problems within a reasonable time) (citing 49 Am.Jur.2d, Landlord and Tenant, § 617). xiv Barton, 889 P.2d at 477. Reprinted courtesy of Ben T. Welch, Snell & Wilmer and Ken Brown, Snell & Wilmer Mr. Welch may be contacted at bwelch@swlaw.com Read the court decision
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Economy in U.S. Picked Up on Consumer Spending, Construction

October 02, 2015 — Shobhana Chandra – Bloomberg
The world’s largest economy expanded more than previously forecast in the second quarter, boosted by gains in consumer spending and construction that may help the U.S. withstand a global slowdown. Gross domestic product rose at a 3.9 percent annualized rate, compared with a prior estimate of 3.7 percent, Commerce Department figures showed Friday in Washington. The median forecast of 76 economists surveyed by Bloomberg called for a 3.7 percent gain. Strong hiring, cheaper gasoline and higher home prices will probably sustain household purchases, which account for about 70 percent of the economy. That helps bolster Federal Reserve Chair Janet Yellen’s view that the U.S. will overcome any fallout from cooling overseas markets and swings in global financial and commodity markets. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg

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How Many Homes have Energy-Efficient Appliances?

October 08, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ Eye on Housing analyzed data from the Census Bureau’s 2011 American Housing Survey to “reveal the share of owner-occupied homes that contain various Energy Star related appliances.” Eye on Housing reported that in “new homes, the leading shares of Energy Star rated appliances were refrigerators (70%), washing machines (69%), dishwashers (65%), and central air conditioning (52%).” In “owner-occupied homes,” the survey demonstrated that “refrigerators are the most common Energy Star appliance.” Read the court decision
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Wilke Fleury Attorneys Featured in 2022 Northern California Super Lawyers and Rising Stars Lists

September 05, 2022 — Wilke Fleury LLP

Wilke Fleury is extremely proud that 14 of its incredibly talented attorneys are featured in the Annual List of Top Attorneys in the 2022 Northern California Super Lawyers magazine! Super Lawyers rates attorneys in each state using a patented selection process and publishes a yearly magazine issue that produces award-winning features on selected attorneys. Congratulations to this talented group:

Super Lawyers of 2022!	Rising Stars of 2022!
Daniel L. Egan	Islam M. Ahmad
David A. Frenznick	Kathryne E. Baldwin
George A. Guthrie	Adriana C. Cervantes
Ronald L. Lamb	Aaron R. Claxton
Neal C. Lutterman	José L. Parra
Stephen K. Marmaduke
Matthew W. Powell
Trevor L. Stapleton
Steven J. Williamson

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Pine Island Bridge in Place as Florida Pushes Barrier Island Access in Ian's Wake

October 10, 2022 — Derek Lacey - Engineering News-Record
A temporary bridge is in place for Pine Island, Fla., after state officials mobilized crews to restore mainland access to barrier islands cut off when Hurricane Ian washed away roads and bridges last month. President Joe Biden (D) joined Florida Gov. Ron DeSantis (R) on Oct. 5 in touring the hardest-hit parts of the state, with the governor announcing the five-day emergency Pine Island project and plans to finish repair of the causeway to Sanibel Island by the end of October. Reprinted courtesy of Derek Lacey, Engineering News-Record Mr. Lacey may be contacted at laceyd@enr.com Read the full story... Read the court decision
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Can a Lease Force a Tenant's Insurer to Defend the Landlord?

October 10, 2022 — Kerianne Kane Luckett - Saxe Doernberger & Vita, P.C.
Can an indemnification clause in a commercial lease obligate a tenant’s insurer to defend a landlord? Recently, the United States District Court for the Northern District of New York said, “Yes!” On August 9, 2022, the district court issued a decision in ConMed Corp. vs. Federal Insurance Company, holding that the indemnification clause in a policyholder’s lease triggered the insurer’s duty to defend the landlord in an action arising out of the tenant’s negligence. Facts of the Case ConMed is a medical technology company that leases warehouse space in Georgia from Breit Industrial Canyon (“the Landlord”) to sterilize its medical equipment. ConMed’s employees filed suit against ConMed and a contractor that performed the sterilization, alleging injuries caused by exposure to excessive amounts of chemicals used in the sterilization process (the “ConMed Action”). Thereafter, ConMed’s employees filed a separate lawsuit against the Landlord, alleging that the Landlord permitted storage of unsafe levels of the chemicals at the warehouse without adequate ventilation (the “Landlord Action”). The lease agreement required ConMed to indemnify the Landlord “except in the event of, and to the extent of, Landlord’s negligence or willful misconduct.” Read the court decision
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Reprinted courtesy of Kerianne Kane Luckett, Saxe Doernberger & Vita, P.C.
Ms. Luckett may be contacted at KKane@sdvlaw.com

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