Seattle Washington Building Expert Directory

#6 CDJ Topic: Construction Defect Legislative Developments

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper of Chapman Glucksman Dean Roeb & Barger discussed Right to Repair developments occurring in Nevada, Arizona, Florida, and Colorado in their article, “Right to Repair Reform: Revisions and Proposals to State’s ‘Right to Repair Statutes.” Read the full story... Texas also had changes that affected construction defect claims, as covered by David H. Fisk of Coleman & Logan PC: “Before filing a lawsuit or initiating an arbitration proceeding pertaining to a construction defect, a condominium association in Texas with eight or more units must now comply with the newly added Section 82.119 to Chapter 82 of the Texas Property Code. This is in addition to compliance with the Texas Residential Construction Liability Act (RCLA) and any preconditions included in the condominium association’s declarations.” Read the full story... Read the court decision
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Formal Request for Time Extension Not Always Required to Support Constructive Acceleration

April 25, 2022 — David Adelstein - Florida Construction Legal Updates
Does a constructive acceleration claim require the contractor to always request an extension of time which is then denied by the owner? While this is certainly the preference and the contractor should be requesting an extension of time as a matter of course for an excusable delay, the answer is NO! in certain circumstances. This is conveyed in the factually detailed case discussed below where a formal request for an extension of time was not required for the contractor to support its constructive acceleration claim. But first, what is constructive acceleration: Constructive acceleration “occurs when the government demands compliance with an original contract deadline, despite excusable delay by the contractor.” The Federal Circuit in Fraser defined the elements of constructive acceleration as follows: (1) that the contractor encountered a delay that is excusable under the contract; (2) that the contractor made a timely and sufficient request for an extension of the contract schedule; (3) that the government denied the contractor’s request for an extension or failed to act on it within a reasonable time; (4) that the government insisted on completion of the contract within a period shorter than the period to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it regarded the alleged order to accelerate as a constructive change in the contract; and (5) that the contractor was required to expend extra resources to compensate for the lost time and remain on schedule. Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, *42 (Fed.Cl. 2022) quoting Fraser Constr. Co. v. U.S., 384 F.3d 1354, 1361 (Fed. Cir. 2004) (internal citations omitted). 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

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

ADP Says Payrolls at Companies in U.S. Increase 200,000

October 02, 2015 — Sho Chandra – Bloomberg
Companies stepped up hiring in September, indicating the U.S. job market is standing firm in the face of weaker global demand, according to a private report based on payrolls. A 200,000 increase in employment followed a revised 186,000 rise in the prior month, figures from the ADP Research Institute showed Wednesday. The median projection of economists surveyed by Bloomberg called for an advance of 190,000. The additions to company headcounts are consistent with resilient demand in the U.S. even as some industries face challenges of weaker overseas sales. Labor Department data on Friday are projected to show payroll gains accelerated this month compared with August. “The U.S. job machine continues to produce jobs at a strong and consistent pace,” Mark Zandi, chief economist at Moody’s Analytics Inc. in West Chester, Pennsylvania, said in a statement. Moody’s produces the figures with ADP. “Despite job losses in the energy and manufacturing industries, the economy is creating close to 200,000 jobs per month. At this pace, full employment is fast approaching.” Estimates in the Bloomberg survey ranged from gains of 120,000 to 215,000 after a previously reported August advance of 190,000. Goods Producers Goods-producing industries, which include manufacturers and builders, increased headcounts by 12,000, the ADP report showed. Hiring in construction climbed by 35,000, almost twice the 18,000 gain a month earlier. Factories cut 15,000 jobs in September, which was the biggest decline since December 2010. Payrolls at service providers increased by 188,000. Read the court decision
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Reprinted courtesy of Sho Chandra, Bloomberg

Court Slams the Privette Door on Independent Contractor’s Bodily Injury Claim

May 06, 2019 — Brett G. Moore, Michael C. Parme, Lindsey N. Ursua & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Johnson v. The Raytheon Company, Inc., Case No. B281411 (2019) WL 1090217, plaintiff Laurence Johnson (Johnson) was a maintenance engineer employed by an independent contractor that provided control room staff to defendant Raytheon Company, Inc. (“Raytheon”). Johnson was monitoring the computers in the control room when he received low water level alarms pertaining to the water cooling towers. Johnson went to the cooling tower wall in order to look over the wall and verify the water level. Johnson saw the upper half of an extension ladder leaning against the cooling tower’s wall. The ladder had a warning sign which said, “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Despite these warnings, Johnson used the ladder. As he was climbing the ladder it slid out causing him to fall and suffer injuries. Johnson sued Raytheon, the hirer of the independent contractor, arguing the ladder, among other things, was unsafe and lead to Johnson’s injuries. Johnson believed that Raytheon’s course of conduct of leaving a platform ladder (as opposed to the extension ladder) at the wall constituted an implied agreement to always have one present, on which the independent contractor’s employees relied. Johnson further argued that Raytheon was negligent in providing a dangerous extension ladder, as opposed to a platform ladder, at the wall on the night of the accident. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Brett G. Moore, Michael C. Parme, Lindsey N. Ursua and Lawrence S. Zucker II Mr. Moore may be contacted at bmoore@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Ms. Lindsey may be contacted at lursua@hbblaw.com Mr. Lawrence may be contacted at lzucker@hbblaw.com Read the court decision
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CDC Issues Moratorium on Residential Evictions Through 2020

October 05, 2020 — Steven E. Ostrow, C. Jason Kim, & Marissa Levy - White and Williams LLP
On September 1, 2020, the Centers for Disease Control and Prevention (CDC) announced that it was issuing an order (CDC Order) to temporarily halt residential evictions to prevent the further spread of COVID-19. The CDC Order became effective on September 4, 2020 and will remain in effect through December 31, 2020. The purpose of the CDC Order is to keep tenants in their residences to reduce crowding in shelters or other shared housing and to reduce the number of unsheltered homeless, as those conditions have been shown to increase the spread of COVID-19. APPLICABILITY & PROTECTIONS The CDC Order is broader than the previous eviction moratorium under the Coronavirus Relief and Economic Security Act (CARES Act), which applied only to federally-funded housing and expired on July 24, 2020. Eligible renters include those who qualified for a stimulus check under the CARES Act and individuals who expect to make less than $99,000 this year or a joint-filing couple that expects to make less than $198,000. Reprinted courtesy of Steven E. Ostrow, White and Williams LLP, C. Jason Kim, White and Williams LLP, and Marissa Levy, White and Williams LLP Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com Mr. Kim may be contacted at kimcj@whiteandwilliams.com Ms. Levy may be contacted at levymp@whiteandwilliams.com Read the court decision
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Congratulations to Arezoo Jamshidi & Michael Parme Selected to the 2022 San Diego Super Lawyers Rising Stars List

April 04, 2022 — Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLP
Congratulations to Arezoo Jamshidi and Michael Parme who were selected for the 2022 San Diego Super Lawyers Rising Stars list. The 2022 San Diego Rising Stars list is an honor reserved for lawyers who exhibit excellence in practice. Only 2.5% of attorneys in San Diego receive this distinction. Reprinted courtesy of Arezoo Jamshidi, Haight Brown & Bonesteel, LLP and Michael C. Parme, Haight Brown & Bonesteel, LLP Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Read the full story... Read the court decision
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Construction Litigation Roundup: “Too Soon?”

July 02, 2024 — Daniel Lund III - Lexology
Not at all, said the Louisiana Supreme Court, in a case dealing with the timing of filing of a claim for indemnity. In the case, a Louisiana intermediate appellate court had earlier ruled in very short order on a supervisory writ application (reversing the trial court) that a claim for indemnity (based upon an indemnity clause in a construction contract) was “premature” until a “determination that damages are actually owed and the indemnitee sustains a loss. … At this time, the lawsuit is still pending against [the putative indemnitee], and no determination of liability had been made; thus, there is no obligation for indemnity and defense costs. … Stated differently, indemnity (or reimbursement) is not available at this time because [the indemnitee] has not discharged a liability which [the indemnitor] should have assumed or otherwise suffered any loss or damages. … Accordingly, [the] cause of action for indemnity and defense is not ripe for adjudication.” Bennett v. Demco Energy Servs., LLC, 2023-0581 (La. App. 1 Cir. 09/11/23); 2023 La. App. LEXIS 1449. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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