SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Wildfire Smoke Threatens to Wipe Out Decades of Air Pollution Progress

August 28, 2023 — Linda Poon & Immanual John Milton - Bloomberg
The US is on track to experience its worst year for smoke exposure in decades, after wildfires in Canada sent toxic plumes drifting across the border to the Midwest and the East Coast earlier this summer. In June and July, New York and Chicago saw more “very unhealthy” and “hazardous” air quality days for fine particle pollution (PM2.5) than in the same months every year since the Environmental Protection Agency began tracking PM2.5 nationally in 2000, a Bloomberg CityLab analysis of federal data found. In Washington, DC, the number of “very unhealthy” days reached the highest in over a decade. On the EPA’s air quality index scale, these days correspond with the highest levels of public health concern. Extensive exposure to PM2.5 particles, the main pollutant found in smoke, can increase the risk of a variety of problems, including heart and respiratory disease, as well as premature death. Reprinted courtesy of Linda Poon, Bloomberg and Immanual John Milton, Bloomberg Read the court decision
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TOP TAKE-AWAY SERIES: The 2023 Fall Meeting in Washington, D.C.

November 13, 2023 — Marissa L. Downs & Jennifer M. Kanady - The Dispute Resolver
Over 500 construction lawyers, experts, and consultants descended on Washington last week for the Forum’s 2023 Fall Meeting. Newly minted Forum Chair John Cook and Program Coordinators Catherine Delorey and Brian Zimmerman put together a stellar program focused on navigating government construction. For this installation of the post-meeting post, I'm teaming up with guest contributor, Jennifer Kanady, to bring you 10 of our top take-aways from this unique program. 10. Contracting with the government is replete with risk that could easily trap the unwary. Nobody likes to be taken advantage of. But hell hath no fury like the U.S. Government scorned. Erin Cannon-Wells and Aaron Silberman, gave a (truly) delightful, Indiana-Jones-inspired presentation on the regulations that can doom the unwitting contractor who is less than perfectly forthright in its dealings. The government has created financial incentives for members of the public to report your company’s violations as part of a qui tam action. When you consider the number of potential whistleblowers in the bidding process and the contracting chain, a qui tam action would seem more likely than not. Add to that the sanctions contractors might face for even innocent errors either by their own companies or their downstream subs, and government contracting begins to sound increasingly like the Temple of Doom. Oh, and in case you were only focused on affirmative claims, beware the “reverse false claim” which is concealing information that would rightfully entitle the government to a credit… Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP and Jennifer M. Kanady, FAC Services, LLC Ms. Downs may be contacted at mdowns@lauriebrennan.com Ms. Kanady may be contacted at JKanady@facfin.com Read the court decision
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Judge Rejects Extrapolation, Harmon Tower to Remain Standing

November 07, 2012 — CDJ STAFF
CityCenter has filed an emergency motion asking the Nevada Supreme Court to intervene in Judge Elizabeth Gonzalez’ order that the building’s defects cannot be extrapolated from those tested. CityCenter’s structural engineering expert “evaluated 397 of the Harmon’s critical structural elements and found all but one defective,” according to the article on Vegas.Inc. Judge Gonzalez would not permit this to be extrapolated to the untested 1,072, as the locations tested were not random. Judge Gonzalez also ruled that if CityCenter does additional testing, they may not appeal her order that ruled the extrapolation inadmissible. CityCenter argued to the Nevada Supreme Court that “the notion that CityCenter should be forced to incur additional millions of dollars in testing costs and sanctions – on the condition that it waive its right to appeal this ruling – just to be permitted to present its own damages evidence, shocks the conscience.” Gonzalez gave the okay to CityCenter to demolish the building, but its demolition would make any further testing impossible. Under Gonzalez’ ruling, the untested structural elements cannot b assumed to be defective. Read the court decision
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Named Insured’s Liability Found Irrelevant to Additional Insured’s Coverage Under a Landlords and Lessors Additional Insured Endorsement

November 16, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Truck Ins. Exchange v. AMCO Ins. Co. (No. B298798, filed 10/26/20), a California appeals court held that even though the named insured restaurant-lessee was found not liable for premises liability to injured restaurant patrons, the respective liability of the named and additional insured was irrelevant to the landlord-lessor’s coverage for injuries “arising out of” the lessee’s “use” of the premises under a landlords, managers or lessors of premises additional insured endorsement on the lessee’s general liability policy. In Truck v. AMCO, restaurant patrons were injured when a vehicle crashed into the restaurant while they were dining. The landlord was aware of a similar accident that happened several years before, but the current lessee operating the restaurant was not. The patrons sued the lessee, alleging negligence and premises liability for failing to take precautionary measures and safeguard the patrons. On learning of the prior incident, the patrons added the landlord, alleging that it should have protected the property from a recurrence by reinforcing the door and installing bollards by the street. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Arbitration—No Opportunity for Appeal

October 22, 2014 — Craig Martin – Construction Contractor Advisor
Last week I presented to the Great Plains Chapter of the American Society of Professional Estimators on arbitration and litigation. Some of the questions related to the difficulty of appealing an arbitrator’s decision. A Florida appellate court recently confirmed this difficulty. In Village at Dolphin Commerce Center, LLC v. Construction Service Solutions, LLC, a contractor filed an arbitration claim against the owner to get paid for its work. The owner claimed that the contractor could not maintain the claim to get paid because the contractor was not licensed. Apparently, there is a law in Florida that a contractor unlicensed at the time of the contract cannot maintain an action in Florida for unpaid work. 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

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Construction Contract Clauses That May or May Not Have Your Vote – Part 3

November 23, 2016 — Garret Murai – California Construction Law Blog
Scope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The third in a multi-part series, here are some other important construction contract clauses that may determine whether you come out a winner.

Provision: Supervisory Personnel, Employees, and Authority to Bind Provisions

• Typical Provision: ”At all times during performance of the Work, Subcontractor shall have at the job site a competent supervisor approved by Owner. Subcontractor’s supervisor shall be deemed a representative of Subcontractor and all communications given to Subcontractor’s supervisor shall be as binding as if such communications were given to Subcontractor. Should Contractor object to Subcontractor’s supervisor’s presence at the job site, or the presence at the job site, or the presence at the job site of any other employee or agent of Subcontractor or any employee or agent of Subcontractor of Subcontractor, Subcontractor shall cause such persons to be replaced immediately as directed by Contractor.”
• What it Means: Higher-tiered parties have a legitimate interest in ensuring that only competent individuals are allowed to perform work on a project and in ensuring that there are peaceable relations at a job site. Higher-tiered parties also have an interest in ensuring that directives and agreements made and reached in the field are followed. However, it is unreasonable for higher-tiered party or to require that such personnel be able to bind that lower-tiered party to agreements best decided by others.
• What You Can Do: Lower-tiered parties should seek to include language which provides that only “reasonable” changes to personnel are allowed and, as necessary, limit by category or issue the types of items on-site personnel can bind the lower-tiered party to.

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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Texas contractual liability exclusion

May 18, 2011 — CDCoverage.com

In Ewing Construction Co., Inc. v. Amerisure Ins. Co., No. C-10-256 (S.D. Tex. April 28, 2011), insured Ewing was the general contractor for an athletic facility constructed for a school district. The school district sued Ewing alleging defective construction of the project. The underlying complaint included contract and negligence causes of action, and sought damages for the repair of the damages and loss of the use of the project. The complaint did not allege damage to any property other than the project itself. Ewing tendered its defense to its CGL insurer Amerisure. Amerisure denied a defense and Ewing filed suit against Amerisure. The federal district trial court entered summary judgment for Amerisure. Applying Texas law, the court held that all of the damages fell within the “contractual liability” exclusion precluding any duty to defend or indemnify.



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North Carolina Appeals Court Threatens Long-Term Express Warranties

April 09, 2014 — Beverley BevenFlorez-CDJ STAFF
Jonathan Massell of the firm Nexsen Pruet explained how a “recent holding by the North Carolina Court of Appeals is threatening to render many long-term express warranties ineffective,” in the online publication Lexology. In Christie v. Hartley Construction, Inc., “the court held that the six-year North Carolina statute of repose for improvements to real property trumps the bargained-for duration terms of an express warranty.” In the Christie case, this meant that even though the homeowners had a twenty year warranty, because of the statute of repose, the warranty effectively expired after six years. Massell stated to “be mindful of jurisdiction.” If the express warranty is in a state other than North Carolina, it’s possible that the claim could be filed in that state instead of North Carolina. For instance, according to Massell, South Carolina’s “statue of repose does not expire until eight years after the date of substantial completion for an improvement to real property.” Furthermore, “long-term warranties are not trumped by the South Carolina statute of repose.” Read the court decision
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