Seattle Washington Building Expert Directory

Can General Contractors Make Subcontractors Pay for OSHA Violations?

March 05, 2015 — Craig Martin – Construction Contractor Advisor
OSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations. OSHA’s Multi-Employer Policy OSHA’s Multi-Employer Policy, a/k/a OSHA Instruction CPL 02-00-124, allows OSHA to cite multiple employers at a single worksite for creating a hazard, or for failing to prevent or correct a hazard, even if their own workers are not exposed to the hazard. A ‘‘controlling’’ or ‘‘correcting’’ employer is liable for hazards that it did not take ‘‘reasonable care’’ to detect and prevent. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Negligent Inspection Claim Against Supervising Design Professional / Consultant

August 07, 2023 — David Adelstein - Florida Construction Legal Updates
Can a negligence argument be created against consulting design professionals or entities that are involved in the inspection of a trade’s work? The recent opinion in Bautech USA, Inc. v. Resolve Equipment, Inc., 2023 WL 4186395 (S.D.Fla. 2023) contains an interesting fact pattern that touches upon this issue. While the case dealt with a motion to dismiss, it contains a number of issues that may be discussed in follow-up postings. Here, a prime contractor was hired by Broward County, Florida to install offshore reef mitigation units. The contractor entered into a subcontract with a concrete fabricator to fabricate the reef mitigation units. The contractor also separately hired consultants to inspect the units. The contractor and its consultants rejected the units even after the fabricator implemented design revisions. The fabricator was then terminated and not paid for contract work plus revisions it implemented to finished units. The fabricator sued the contractor and the contractor’s consultants for non-payment under many (ten) different theories of liability claiming it was damaged to the tune of millions of dollars. 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

Landlords Challenge U.S. Eviction Ban and Continue to Oust Renters

October 25, 2020 — Kriston Capps - Bloomberg
In September, the Trump administration announced a national moratorium on evictions, via an order by the Centers for Disease Control and Prevention aimed at reducing the spread of coronavirus. The four-month temporary suspension applies to any tenant who can’t make rent due to economic conditions and who presents a written declaration about their circumstances to their landlord. But the CDC ban now faces legal challenges on multiple fronts, even as landlords continue to routinely file evictions for nonpayment of rent — the very outcome that the order was designed to prevent. On Oct. 20, the U.S. District Court for the Northern District of Georgia heard the first case against the moratorium, Richard Lee Brown, et al. v. Secretary Alex Azar, et al.. That challenge, brought by a nonprofit called the New Civil Liberties Alliance, has been joined by the National Apartment Association, which represents some 85,000 landlords responsible for 10 million rental units. Lawyers and scholars working on behalf of plaintiffs in the cases say that the CDC lacks the constitutional authority to enact a policy affecting rents. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

Final Furnishing Date is a Question of Fact

November 10, 2016 — David Adelstein – Florida Construction Legal Updates
Construction liens need to be recorded within 90 days from the lienor’s final furnishing date on the project. This date is exclusive of punchlist or warranty work. The final furnishing date needs to be proven at trial to establish that the construction lien was timely recorded. If there is an evidentiary dispute as the final furnishing date (the contractor claims the date was “x” to establish the lien was timely and the owner claims the date was “y” to establish the lien was untimely), then the date is a question of fact to be determined by the jury. For instance, in Best Drywall Services, Inc. v. Blasczyk, 2016 WL 6246701 (Fla. 2d DCA 2016), a contractor and owner entered into an oral agreement for a residential renovation project. The contractor recorded a construction lien after its final two invoices went unpaid. During trial, the contractor offered conflicting evidence as to when its final furnishing date on the project was. Numerous dates were offered in the record including dates that were more than 90 days prior to the date the contractor recorded its lien, meaning the lien was arguably untimely. As a result, the trial judge entered a directed verdict in favor of the owner and against the contractor on the contractor’s lien claim finding the lien was untimely recorded. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

Congratulations to BWB&O’s 2023 Super Lawyers Rising Stars!

June 26, 2023 — Bremer Whyte Brown & O'Meara LLP
BWB&O is excited to announce Partner Courtney Serrato and Associates Andrew Arakelian, Pamchal Deylami, and Brian Taylor have been selected in the 2023 Southern California Super Lawyers list as Rising Stars for their work in Family Law and Civil Litigation. To read Super Lawyers’ digital publication, please click here. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Please join us in congratulating Courtney, Andrew, Pamchal, and Brian on achieving this level of recognition! Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

Think Twice Before Hedging A Position Or Defense On A Speculative Event Or Occurrence

July 13, 2020 — David Adelstein - Florida Construction Legal Updates
Sometimes, hedging a position on a potential occurrence is not prudent. Stated differently, hedging a position on a contingent event is not the right course of action. The reason being is that a potential occurrence or contingent event is SPECULATIVE. The occurrence or event may not take place and, even if it does take place, the impact is unknown. An example of hedging a defense on such a potential occurrence or contingent event can be found in a construction dispute involving a federal project out of the Eastern District of Virginia, U.S. f/u/b/o Champco, Inc. v. Arch Insurance Co., 2020 WL 1644565 (E.D.Va. 2020). In this case, the prime contractor hired a subcontractor to perform electrical work, under one subcontract, and install a security system, under a separate subcontract. The subcontractor claimed it was owed money under the two subcontracts and instituted a lawsuit against the prime contractor’s Miller Act payment bond. The prime contractor had issued the subcontractor an approximate $71,000 back-charge for delays. While the subcontractor did not accept the back-charge, it moved for summary judgment claiming that the liability for the back-charge can be resolved at trial as there is still over $300,000 in contract balance that should be paid to it. The prime contractor countered that the delays caused by the subcontractor could be greater than $71,000 based on a negative evaluation in the Contractor Performance Assessment Reporting System (“CPARS”). A negative CPARS rating by the federal government due to the delays caused by the subcontractor would result in a (potential) loss of business with the federal government (i.e., lost profit) to the prime contractor. The main problem for the prime contractor: a negative CPARs rating was entirely speculative as there had not been a negative CPARs rating and, even if there was, the impact a negative rating would have on the prime contractor’s future business with the federal government was unknown. To this point, the district court stated:

In this case, [prime contractor’s] claim for damages is wholly speculative. [Prime contractor] has not produced any evidence that its stated condition precedent—a negative CPARS rating—will actually occur and will have a negative impact on its future federal contracting endeavors. Specifically, [prime contractor] has not identified any facts that indicate that it will be subject to a negative CPARS rating or any indication of the Navy’s dissatisfaction with its work as the prime contractor on the Project… Further, a CPARS rating is only one aspect taken into consideration when federal contracts are awarded. In sum, there is no evidence of the following: (1) a negative CPARS rating issued to [prime contractor]; (2) [prime contractor’s] hypothetical negative rating will be the result of the delay [prime contractor] alleges was caused by [subcontractor]; or (3) [prime contractor’s] hypothetical negative CPARS rating will result in future lost profits.

U.S. f/u/b/o Champco, Inc., supra, at *2 (internal citation omitted).

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

Pine River’s Two Harbors Now Targets Non-Prime Mortgages

November 05, 2014 — Jody Shenn - Bloomberg
Count Two Harbors Investment Corp. (TWO) among investors looking for profits in riskier home loans -- and expecting a market for bonds backed by them to re-emerge even with safer issuance showing limited signs of life. The real-estate investment trust, whose 74 percent total return over the past three years is almost double that of peers, recently told the lenders that have been selling it big, high-quality mortgages that it’s now also seeking to purchase non-prime loans and those with low down payments, Chief Investment Officer Bill Roth said today during a conference call for analysts and investors. “Our expectation and certainly hope would be as this market opens up and becomes fairly meaningful that a securitization market would develop,” he said. Of course, he sees the timeline as “probably measured in years, not months.” Read the court decision
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Reprinted courtesy of Jody Shenn, Bloomberg
Ms. Shenn may be contacted at jshenn@bloomberg.net

From the Ashes: Reconstructing After the Maui Wildfire

November 27, 2023 — Grace Calengor - Construction Executive
On Tuesday, Aug. 8, a wildfire on the Hawaiian island of Maui ravaged the town of Lahaina, killing nearly 100 people and stranding thousands of survivors, many of whom remain displaced today. The loss of life makes this the deadliest American wildfire on record, while the material cost in property damage has been estimated at upwards of $5 billion. The response to the disaster has involved firefighters and other emergency personnel—and also engineering and construction professionals. One of them is Tam Kim, director of operations for West Maui Construction Inc., a civil contractor on the island. Originally from Oregon, Kim fell in love with Hawaii when he visited on a surfing vacation; eventually he took his technology background and helped found a startup company on Maui in 2008. Eight years later, the startup relocated to Oahu, but Kim stayed on Maui to forge a different path, one that would lead him somewhere he never imagined. Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES