SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Quick Note: Independent Third-Party Spoliation Of Evidence Claim

June 18, 2019 — David Adelstein - Florida Construction Legal Updates
In an earlier posting I discussed the difference between first-party spoliation of evidence and third-party spoliation of evidence. There is NO independent cause of action for first-party spoliation of evidence because that can be dealt with directly in the underlying lawsuit. This deals with the assertion that an actual party to a lawsuit spoiled evidence. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---

Revisiting Statutory Offers to Compromise

August 28, 2023 — Kathryne Baldwin - Wilke Fleury
The fourth appellate district published an opinion earlier this year in Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450 that serves as an excellent refresher on requirements of the “998 Offer,” or a statutory offer to compromise pursuant to Code of Civil Procedure (“CCP”) §998. In Smalley, set in the context of a Lemon Law action, Defendant Subaru made a 998 Offer for $35,001.00, together with attorneys’ fees and costs totaling either $10,000.00 or costs and reasonably incurred attorneys’ fees, in an amount to be determined by the Court. (Smalley, supra, 87 Cal.App.5th at 454.) Plaintiff objected that the offer was not reasonable and the case proceeded to trial. At trial, a jury found in favor of Plaintiff and awarded him a total judgment award of $27,555.74 – far short of the $35,001.00 offer. The trial court found Plaintiff had failed to beat the 998 at trial and that Subaru’s earlier 998 offer was reasonable. Plaintiff appealed the post-judgment order awarding Plaintiff pre-offer costs and Defendant post-offer costs on the grounds that the 998 was not reasonable in that it did not specify whether Plaintiff would be deemed the prevailing party for purposes of a motion for attorneys’ fees. The fourth district affirmed the trial court’s order and engaged in a helpful review of 998 requirements. Read the court decision
Read the full story...
Reprinted courtesy of Kathryne Baldwin, Wilke Fleury
Ms. Baldwin may be contacted at kbaldwin@wilkefleury.com

---

UPDATE: ACS Obtains Additional $13.6 Million for General Contractor Client After $19.2 Million Jury Trial Victory

June 27, 2022 — Kristina Southwell - Ahlers Cressman & Sleight PLLC
In March 2022, ACS obtained a $19.2 million jury verdict in favor of its general contractor client after a lengthy trial against the project owner. Since that time, ACS has successfully obtained awards through post-trial motion practice for an additional $13.6 million in favor of the general contractor. These awards increased to total judgment to more than $32 million. When moving to enter judgment on the jury verdict, ACS successfully argued for and obtained more than $5 million in prejudgment interest on the jury verdict to compensate the general contractor for having to go years without payment for work performed. ACS also successfully obtained a decree of foreclosure on its construction lien and incorporated language in the judgment requiring the owner to pay an additional $1.9 million in Washington State sales tax on the jury award. Finally, under the authority of the Washington construction lien statute (RCW 60.04.181), ACS sought to recover the attorneys’ fees, costs, and expenses incurred by the general contractor client during the course of litigation. ACS succeeded in obtaining an award for more than $6.6 million for various expenses and costs including ACS’s attorney fees, all the costs of hiring expert witnesses, costs and expenses related to subcontractors’ presentation of pass-through claims against the owner, and other litigation costs and expenses. Read the court decision
Read the full story...
Reprinted courtesy of Kristina Southwell, Ahlers Cressman & Sleight PLLC
Ms. Southwell may be contacted at wendy.wheatmccoy@acslawyers.com

---

EPA Will Soon Issue the Latest Revision to the Risk Management Program (RMP) Chemical Release Rules

February 10, 2020 — Anthony B. Cavender - Gravel2Gavel
On November 21, 2019, EPA released a pre-publication copy of its Reconsideration of the revised Risk Management Program (RMP) Rules. In an accompanying statement, the agency noted that it has taken steps to “modify and improve” the existing rule to remove burdensome, costly and unnecessary requirements while maintaining appropriate protection (against accidental chemical releases) and ensuring responders have access to all of the necessary safety information. This action was taken in response to EPA’s January 13, 2017 revisions that significantly expanded the chemical release prevention provisions the existing RMP rules in the wake of the disastrous chemical plant explosion in West, Texas. The Reconsideration will take effect upon its publication in the Federal Register. Background As recounted by the D. C. Circuit in its August 2018 decision in the case of Air Alliance Houston, et al. v. EPA, in 1990, the Congress amended the Clean Air Act to force the regulation of hazardous air pollutants (see 42 USC Section 7412). An initial list of these hazardous air pollutants was also published, at Section 7412 (b). Section 112(r) (codified at 42 USC Section 7412 (r)), authorized EPA to develop a regulatory program to prevent or minimize the consequences of a release of a listed chemical from a covered stationary source. EPA was directed to propose and promulgate release prevention, detection, and correction requirements applicable to stationary sources (such as plants) that store or manage these regulated substances in amounts determined to be above regulated threshold quantities. EPA promulgated these rules in 1996 (see 61 FR 31668). The rules, located at 40 CFR Part 68, contain several separate subparts devoted to hazard assessments, prevention programs, emergency response, accidental release prevention, the development and registration of a Risk Management Plan, and making certain information regarding the release publicly available. EPA notes that over 12.000 RMP plans have been filed with the agency. In January 2017, in response to the catastrophe in West, EPA issued substantial amendments to these rules, covering accident prevention (expanding post-accident investigations, more rigorous safety audits, and enhanced safety training), revised emergency response requirements, and enhanced public information disclosure requirements. (See 82 FR 4594 (January 13, 2017).) However, the new administration at EPA, following the submission of several petitions for reconsideration of these revised rules, issued a “Delay Rule” on June 14, 2017, which would have extended the effective date of the January 2107 rules until February 19, 2019. On August 17, 2018, the Delay Rule was rejected and vacated by the D.C. Circuit in the aforementioned Air Alliance case (see 906 F. 3d 1049 (DC Circuit 2018)), which had the effect of making the hotly contested January 2017 RMP revisions immediately effective. Read the court decision
Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

---

Storm Breaches California River's Levee, Thousands Evacuate

March 20, 2023 — Associated Press - Engineering News-Record
WATSONVILLE, Calif. (AP) — A Northern California agricultural community famous for its strawberry crop was forced to evacuate early Saturday after the Pajaro River’s levee was breached by flooding from a new atmospheric river that pummeled the state. Across the Central Coast's Monterey County , more than 8,500 people were under evacuation orders and warnings Saturday, including roughly 1,700 residents — many of them Latino farmworkers — from the unincorporated community of Pajaro. Reprinted courtesy of Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

---

Couple Perseveres to Build Green

August 27, 2013 — CDJ STAFF
Most homeowners don’t want to make their way through the mountain of paperwork required for LEED certification. But according to the Patriot News, Jens and Donna Damgaard aren’t most homeowners. The Damgaards set out to build a LEED-certified home, and struck with it to the end. The Damgaards started out by assembling a team so there wouldn’t be any questions down the road. They also kept going green as a goal, no matter what. Don Park, their contractor, said that “it worked out well. There was never a cost issue.” Jens Damgaas is an attorney in Harrisburg, and he put his skills as a lawyer to work in going through the paperwork, as if he were the projet’s LEED consultant. One further takeaway from the contractor, “everyone wants two-button toilets.” Read the court decision
Read the full story...
Reprinted courtesy of

---

Class Actions Under California’s Right to Repair Act. Nope. Well . . . Nope.

January 15, 2019 — Garret Murai - California Construction Law Blog
It’s the holidays. A time when family and friends, and even neighbors, gather together. And nothing brings neighbors closer together than class action residential construction defect litigation. In Kohler Co. v. Superior Court, Case No. B288935 (November 14, 2018), the Second District Court of Appeal addressed whether neighbors can bring class action lawsuits under the Right to Repair Act. For those who are regular readers of the California Construction Law Blog you’re familiar with the Right to Repair Act codified at Civil Code sections 895 et seq. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

---

Preserving your Rights to Secure Payment on Construction Projects (with Examples)

March 22, 2017 — David Adelstein – Florida Construction Legal Updates
All participants across the construction industry should understand what efforts they should take to maximize and collateralize payment. No one wants to work for free and, certainly, no one in the construction industry wants to work without ensuring there is some mechanism to recover payment in the event they remain unpaid. Being proactive and knowledgeable can go a long way when it comes to recovering your money. Your Contract – It starts with the contract. You should understand those risks that are allocated to you and those that are allocated to another party. And, you should understand the contractual mechanism to resolve claims and disputes and whether your contract has a prevailing party attorney’s fees provision. In addition to contractual rights, there are tools for you to maximize your collection efforts. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

---