Seattle Washington Building Expert Directory

Be Careful with Continuous Breach and Statute of Limitations

January 21, 2019 — Christopher G. Hill - Construction Law Musings
If you are a construction attorney like me (or anyone that takes cases to court), you deal with statutes of limitation on a daily basis. These statutes seem pretty simple. A party has “X” amount of time in which to file its lawsuit after accural of the cause of action. In a breach of contract suit, the accrual is the date of breach. Easy, right? Wrong, at least in some circumstances. Take for example, the case of Fluor Fed. Sols., LLC v. PAE Applied Techs., LLC out of the 4th Circuit Court of Appeals. In this unpublished opinion the Court looked at “continuous breach” versus “series of separate breaches.” The basic facts are that in 2000 Flour entered into a contract with PAE whereby PAE requested and claims to have received consent from Flour to a 2.3% administrative cost cap on Flour’s work on an Air Force contract. Flour claimed that it did not agree to this cap. In 2002, Flour begain billing PAE for its costs plus the 2.3% administrative markup and billed in this fashion for the first full year. However, in subsequent years and for the next 11 years, Flour billed PAE at a higher markup rate than the 2.3%. PAE disputed the increased markup and paid Flour at the 2.3% rate. Flour periodically protested but made no move to court until it filed suit in March of 2016. After a bench trial, the district court found that Flour had agreed to the cap and found for PAE. 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

Effectively Managing Project Closeout: It Ends Where It Begins

August 06, 2019 — William E. Underwood - ConsensusDocs
Project closeout is sometimes one of the last things on a contractor’s mind at the beginning of a project, but project closeout can have a huge impact on a contractor’s overall profitability and success. Effectively managing the closeout process is critical, and it all begins with the negotiation and execution of the project contract. This contract can, and should, provide a complete roadmap for project closeout, as addressing these issues on the front end can set up the parties for successful project completion. It is then equally important to re-review the terms of the contract as project closeout approaches to ensure that everyone, including the owner, adheres to all contractual requirements. This article examines several pertinent issues related to project closeout that should be addressed during the contracting stage, including defining substantial and final completion, inspection and acceptance, punch lists, and warranties. Defining Substantial and Final Completion Having clear definitions for both substantial and final completion in your construction contract is an important and necessary early step in achieving successful project closeout. Read the court decision
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Reprinted courtesy of William E. Underwood, Jones Walker LLP
Mr. Underwood may be contacted at wunderwood@joneswalker.com

Study Finds Mansion Tax Reduced Sales in New York and New Jersey

May 13, 2014 — Beverley BevenFlorez-CDJ STAFF
A study by two Columbia University economists demonstrated that “the extra 1% ‘mansion’ tax New York state and New Jersey impose on home sales above $1 million actually reduce[d] the number of total real estate transactions, in addition” it pushed “home sales that might have taken place for above $1 million to below that threshold,” Forbes reported. The “mansion” tax only occurs when the residential sale is above $1 million, “meaning a buyer who pays $999,999 for a house, condo or coop would owe no mansion tax.” The study showed a “dramatic” gap “in sales of homes for between $1 million and $1,040,000 (with more sales missing in that range than bunched just below $1 million).” The economists’ concluded that “the mansion tax causes an ‘unraveling’ effect, actually disrupting some sales of properties that would otherwise have taken place.” Read the court decision
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Reprinted courtesy of

The EPA’s Renovation, Repair, and Painting Rule: Are Contractors Aware of It?

March 12, 2015 — Beverley BevenFlorez-CDJ STAFF
Remodeling Magazine reported recently that some remodelers are unaware of the U.S. Environmental Protection Agency’s (EPA) Renovation, Repair and Painting (RRP) rule despite that it took effect back in April of 2010. “There are still quite a few remodelers who have never heard of RRP,” Mark Schlager, president of Access Training Services, an EPA and Occupational Safety and Health Administration (OSHA) trainer in Pennsauken, N.J. told Remodeling Magazine. According to the article, “The RRP rule applies to homes, apartments, and child-occupied commercial facilities built before 1978.” There are two RRP certifications required on every job: “a “Firm” certification for the company that contracts to do the work, and a “Renovator” certification for the person overseeing the work. A solo operator needs both certifications, which are good for five years.” Read the court decision
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Reprinted courtesy of

Texas Construction Firm Officials Sentenced in Contract-Fraud Case

August 07, 2018 — Tom Ichniowski – Engineering News-Record
Two top officials of a Texas construction company—Honest, Experienced, Reliable Contracting Solutions LLC—have been sentenced to federal prison terms for defrauding the State Dept. through a plan to steer more than $1 million in contracts to the company, the Dept. of Justice says. Read the court decision
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Reprinted courtesy of Tom Ichniowski, ENR
Mr. Ichniowski may be contacted at ichniowskit@enr.com

Anti-Assignment Provision Unenforceable in Kentucky

December 20, 2012 — TRED EYERLY, INSURANCE LAW HAWAII
On a certified question from the Federal District Court, the Supreme Court of Kentucky decided that an anti-assignment provision in a policy is unenforceable.Wehr Constructors v. Paducah Div. Assur. Co. of Am., 2012 Ky. LEXIS 183 (Ky. Oct. 25, 2012). Before building an addition to its hospital, Murray Calloway County Hospital purchased a builder's risk policy from Assurance Company of America.The policy provided, "Your rights and duties under this policy may not be transferred without Assurance's written consent . . . ." The Hospital contracted with Wehr Constructors to install concrete subsurfaces and vinyl floors in order to expand the hospital. After installation, a portion of the floors and subsurface work was damaged. The Hospital submitted a claim to Assurance for $75,000, but the claim was denied. Wehr sued the Hospital to recover money for its work on the construction project. In settling the case, the Hospital assigned to Wehr any claim or rights the Hospital had against Assurance. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii.
Mr. Eyerly can be contacted at te@hawaiilawyer.com

Be Careful with “Green” Construction

March 18, 2019 — Christopher G. Hill - Construction Law Musings
As readers of Construction Law Musings can attest, I am an enthusiastic (if at times skeptical) supporter of sustainable (or “green”) building. I am solidly behind the environmental and other benefits of this type of construction. However, I have likened myself to that loveable donkey Eeyore on more than one occasion when discussing the headlong charge to a sustainable future. While I see the great benefits of a privately built and privately driven marketplace for sustainable (I prefer this term to “green” because I find it less ambiguous) building stock and retrofits of existing construction, I have felt for a while that the glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward. Another example reared it’s ugly head recently and was pointed out by my pal Doug Reiser (@douglasreiser) at his Builders Counsel Blog (a great read by the way). Doug describes a project that I mentioned previously here at Musings and that is well described in his blog and in a recent newsletter from Stuart Kaplow (@stuartkaplow), namely, the Chesapeake Bay Foundation’s Philip Merrill Environmental Center project. I commend Doug’s post for a great description of the issues, but suffice it to say that the Chesapeake Bay Foundation sued Weyerhauser over some issues with a sustainable wood product that failed. While the case was dismissed on statute of limitations grounds, the case illustrates issues that arise in the “new” sustainable building world. 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

BWB&O’s Los Angeles Office Obtains Major Victory in Arbitration!

July 25, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara Partner Patrick Au and Senior Associate Theresa Mallen recently achieved a major victory in binding Arbitration. The subject action involved a construction project in the backyard of homeowner’s residence. Homeowner maintained that BWB&O’s contractor client abandoned the project. Furthermore, homeowner alleged that the work performed by BWB&O’s client was deficient. The primary construction defect claim is that the pool deck is not properly sloped which is preventing surface water from running off the top of the retaining wall as designed. The Arbitrator ultimately sided with BWB&O’s client finding that BWB&O’s client did not abandon the project, but rather was terminated by homeowner. Additionally, BWB&O successfully proved that despite the fact that the three pertinent elevations that determine the slope of the concrete pool slab were pre-established before BWB&O’s client even got on the project, that BWB&O’s client properly installed the concrete pool slab and would have established the necessary slope of the pool deck had it not been terminated from the project. Homeowner asserted many other secondary construction defect claims and the Arbitrator found in BWB&O’s client’s favor on each and every issue. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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