SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Oregon agreement to procure insurance, anti-indemnity statute, and self-insured retention

March 05, 2011 — CDCoverage.com

In Continental Casualty Ins. Co. v. Zurich American Ins. Co., No. 09-35484 (9th Cir. Oct. 28, 2010), general contractor TCR was sued by an employee of subcontractor Safeway for bodily injuries suffered while working on the project. In the subcontract, Safeway agreed to procure primary insurance providing coverage for TCR for liability arising out of Safeway’s negligence. Safeway’s CGL policy included a self-insured retention that had to be satisfied before the insurer had a duty to defend. TCR filed suit against Safeway alleging that

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Ignoring Employee ADA Accommodation Requests Can Be Costly – A Cautionary Tale

March 29, 2021 — Peter Shapiro - Lewis Brisbois
As all employers should well know by now, the Americans with Disabilities Act (ADA) and many state and local counterparts may require employers to engage in an interactive process in response to a disabled employee’s request for a workplace accommodation. A recent ruling by the First Circuit Court of Appeals illustrates why employers have a very strong financial incentive to be proactive in adopting and rigorously enforcing their disability accommodation policies. In Burnett v. Ocean Properties, decided on February 2, 2021, a wheelchair user employed by a hotel chain call center complained internally that the office’s entrance was not accessible to him. It had heavy doors beyond which was a downward slope that caused the plaintiff’s wheelchair to roll backwards as the door closed on him, requiring him to exert greater force as he struggled to enter. He asked that push-button automatic doors be installed. The employer did not take any meaningful steps to address the complaint with the plaintiff. Eventually he was injured as he tried to open the door. Still, the employer did not follow up on his accommodation request. The plaintiff eventually filed an administrative charge with the Maine Human Rights Commission. The employer met with the plaintiff at that time, but claimed lack of familiarity with ADA compliance requirements and took no action to address the complaint. The plaintiff eventually resigned and filed suit in federal court when the administrative process was completed. Read the court decision
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Reprinted courtesy of Peter Shapiro, Lewis Brisbois
Mr. Shapiro may be contacted at Peter.Shapiro@lewisbrisbois.com

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Electrical Subcontractor Sues over Termination

November 13, 2013 — CDJ STAFF
Millennium Plus, Inc. has sued the contractor for the Efrain A. Duran Water Treatment Plant Facility and Rio Grande City for failing to pay money due to them and terminating the contract. According to the lawsuit, Millennium is claiming that they are owed $161,781 for their work on the water treatment facility. According to the city, the project’s contractor was “very unsatisfied with Millennium’s work.” Although the city disclaims any involvement, Millennium claims it was a “joint enterprise.” Read the court decision
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Subcontract Should Flow Down Delay Caused by Subcontractors

December 21, 2020 — David Adelstein - Florida Construction Legal Updates
A general contractor’s subcontract with its subcontractor should include a provision that entitles it to flow down liquidated damages assessed by the owner stemming from delays caused by the subcontractor. Such a provision does not mean the general contractor does not have to prove delays caused by the subcontractor or can arbitrarily allocate the amount or days it claims the subcontractor is liable. The general contractor still will need to reasonably establish the delays the subcontractor caused the critical path of the schedule, i.e., delayed the job. In addition to the right to flow down liquidated damages, the subcontract should also entitle the general contractor to recover its actual extended general conditions caused by the subcontractor’s delays (regardless of whether the owner assesses liquidated damages). The objective is that if the subcontractor delays the job, the subcontractor is liable for liquidated damages the general contractor is liable to the owner for in addition to the general contractor’s own delay damages. This is an important subcontractual provision so that the risk of delay caused by subcontractors is clearly flowed down to them in the subcontract. In a 1987 case, Hall Construction Co., Inc. v. Beynon, 507 So.2d 1225 (Fla. 5th DCA 1987), the subcontract at-issue contained language that stated, “The parties hereto agree that a supplier who delays performance beyond the time agreed upon in this Purchase Order shall have caused [general contractor] liquidated damages in the amount required of [general contractor] by their contract per day for each day such delay continues which sum the supplier hereby agrees to pay.” 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

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Pass-Through Subcontractor Claims, Liquidating Agreements, and Avoiding a Two-Front War

April 26, 2021 — Bradley Sands, Jones Walker LLP - ConsensusDocs
Subcontractor claims happen. When those subcontractor claims are prompted by owner actions or responsibilities, the general contractor must always be vigilant to plan for and work to avoid a two-front war in which the general contractor is pushing the owner for recovery while at the same time disputing the subcontractor’s entitlement. Cooperation between the general contractor and the subcontractor and avoiding that two-front war can be accomplished through pass-through claims and ideally liquidating agreements. A pass-through claim is a claim by the subcontractor who has suffered damages by the owner with whom it has no contract, presented by the general contractor. A liquidating agreement or subcontract “liquidating language” goes a step further than simply a pass-through claim by “liquidating” the general contractor’s liability for the subcontractor’s claim and limiting the general contractor’s liability to the value recovered against the owner. The distinction between pass-through claims generally and use of liquidating agreements or language is described in greater detail below. Pass-through subcontractor claims are routine in construction and an important, common sense approach to deal with ever-present changes and the unexpected that can have cost and time implications. Despite the common sense basis for subcontractor pass-through claims, there are important legal considerations that must be addressed, and critical planning required, starting with the subcontract clauses. Read the court decision
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Reprinted courtesy of Bradley Sands, Jones Walker LLP
Mr. Sands may be contacted at bsands@joneswalker.com

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Judge Halts Sale of Brazilian Plywood

June 06, 2022 — Beverley BevenFlorez – CDJ Staff
A permanent injunction was issued by Judge Roy Altman in a Ft. Lauderdale federal court on May 24th that requires the revocation of all PS 1 certificates that were issued by PFS-TECO to more than a dozen Brazilian mills that produced structural plywood for the U.S. market, reported Business Wire. “This case highlights how a few bad actors profited by essentially looking the other way while substandard, and potentially dangerous plywood was imported into the U.S. and used to build homes and businesses,” Michael Haglund, counsel representing the U.S. Structural Plywood Integrity Coalition, of Haglund Kelley, LLP, told Business Wire. Building codes throughout the U.S. require the use of PS 1 structural plywood in construction. "If product standards are not being met, there can be serious implications for all homes constructed using those substandard wood panel products," Tyler Freres, VP of Sales for Freres Engineered Wood, told CDJ. "Contractors and homeowners should be able to trust that U.S. certification agencies are doing their due diligence to accurately inspect panels, ensuring consumers' health and safety." The U.S. Structural Plywood Integrity Coalition, including nine family-owned U.S. plywood manufacturers, alleged that PFS-TECO falsely certified that plywood from Brazil met U.S. structural integrity requirements. This substandard plywood has been used throughout the U.S. In particular, it was used during the hurricane reconstruction efforts in Florida and Puerto Rico due to its cheaper price. In 2021, Brazilian plywood made up 11% of the U.S. supply with nearly 1.2 billion square feet sold. Read the court decision
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Home Buyer Disclosures, What’s Required and What Isn’t

February 05, 2015 — Beverley BevenFlorez-CDJ STAFF
According to Sandy Gadow of the Washington Post, while all states require a property disclosure statement, “the extent of what must be revealed can vary from state to state, county to county and even city to city.” Gadow stated that while, “Federal law requires certain disclosures, such as the existence of asbestos or lead-based paint in the home or other known health or safety risks. But the enforcement of other disclosures (such as reporting certain environmental conditions pertinent to the area, or the existence of Megan’s Law offenders) will be determined by local ordinance or law.” Gadow recommends home buyers go to their state’s Department of Real Estate to discover the Seller Disclosure requirements. Read the court decision
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Patriarch Partners Decision Confirms Government Subpoenas May Constitute a “Claim” Under D&O Policy; Warns Policyholders to Think Broadly When Representing Facts and Circumstances to Insurers

January 08, 2019 — Michael S. Levine, Sergio F. Oehninger, & Joshua S. Paster - Hunton Andrews Kurth
The Second Circuit recently confirmed in Patriarch Partners, LLC v. Axis Insurance Co. that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation, which ripened into a “Claim” prior to the policy’s inception date. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy. Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Sergio F. Oehninger and Joshua S. Paster Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Paster may be contacted at jpaster@HuntonAK.com Read the court decision
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