Seattle Washington Building Expert Directory

Construction Defect Headaches Can Be Avoided

February 21, 2013 — CDJ STAFF
Construction defect claims can be an avoidable headache, if builders apply some forethought. Mark J. Peschel of Johnson & Lindberg, a Bloomington, Minnesota law firm, points out that simply says that windows should be weatherproofed by appropriate flashing, without any guidance on accomplishing that. He notes that “builders tend not to know the weatherproofing code provisions as well as they should.” Another lawyer, Eric S. Hayes of Brown and Carlson in St. Louis Park extends this, “it’s not just the building codes that need to be followed, but also the standards in the industry.” Hayes notes that another way builders can avoid headaches is by being proactive. “I often hear, once things have gone sour and moved toward litigation, that the homeowner contacted the contractor a dozen times about a leaking basement and nothing was done, so they were forced to sue.” His advice for builders: “Don’t let it fester.” Read the court decision
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Construction Contract Terms Matter. Be Careful When You Draft Them.

February 01, 2022 — Christopher G. Hill - Construction Law Musings
In a prior post, I discussed the case of Fluor Fed. Sols., LLC v. Bae Sys. Ordinance Sys in the context of the interplay between fraud, contract, and statutes of limitation. Some cases just keep on giving. This time the case illustrates the need for careful drafting of those pesky, and highly important, clauses in your construction documents. In the current iteration of this ongoing saga, the Court considered the contractual aspects of the matter. As a reminder, the facts are as follows: In May 2011, the United States Army (“Army) awarded BAE Systems Ordnance Systems, Inc. (“BAE”) a contract to design and construct a natural gas-fired combined heating and power plant for the Radford Army Ammunition Plant (“RAAP”). On October 7, 2015, BAE issued a request for a proposal from Fluor Federal Solutions, LLC (“Fluor”) to design and build a temporary boiler facility at a specific location on the RAAP property. On October 13, 2015, the Army modified the prime contract to change the location of the boiler facility. On December 10, 2015, the Army modified the prime contract to require BAE to design and construct a permanent boiler facility. On December 30, 2015, Fluor and BAE executed a fixed-price subcontract for Fluor to design and construct the temporary boiler. Throughout 2016, BAE issued several modifications to Fluor’s subcontract to reflect the modifications BAE received from the Army on the prime contract. On March 23, 2016, BAE directed Fluor to build a permanent – rather than temporary – boiler facility. On March 28, 2016, Fluor began construction of the permanent facility and began negotiations with BAE about the cost of the permanent facility. On September 1, 2016, the parties reached an agreement on the cost for the design of the permanent facility, but not on the cost to construct the permanent facility. On November 29, 2016, the parties executed a modification to the subcontract, officially replacing the requirement to construct a temporary facility with a requirement to construct a permanent facility and agreeing to “negotiate and definitize the price to construct by December 15, 2016.” The parties were unable to reach an agreement on the construction price. 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

Federal District Court Dismisses Property Claim After Insured Allows Loss Location to Be Destroyed Prior to Inspection

September 29, 2021 — James M. Eastham - Traub Lieberman
In BMJ Partners LLC v. Arch Specialty Insurance Co., No. 20-CV-03870, 2021 WL 3709182 (N.D. Ill. Aug. 20, 2021), the United States District Court for the Northern District of Illinois dismissed, with prejudice, a coverage action filed by an insured based on a failure to comply with a request to inspect the involved property under Rule 34 of the Federal Rules of Civil Procedure. The loss at issue involved a hail-damaged building in Carpentersville, Illinois. During the discovery phase of the litigation, the property insurer served a request to inspect the subject property under FRCP Rule 34. After ignoring numerous requests to schedule the inspection, the insurer filed a motion to dismiss for failure to prosecute or, alternatively, to compel an inspection. After the motion was filed, a status hearing was conducted where the insured’s counsel advised the Court of his intention to file a motion to withdraw from representation of the insured. After the date set to file the motion to withdraw passed without anything being filed, the Court entered an order directing the insured to show cause why the matter should not be dismissed for lack of prosecution. In response to the order to show cause, the insured advised the Court that instead of responding to the property insurer’s discovery requests, the insured sold the property to a buyer who subsequently tore down the building. In light of what the Court described as the insured’s “flabbergasting admission”, the Court was compelled to grant the motion to dismiss and do so with prejudice. In support of the “extreme sanction” of dismissing the matter with prejudice, the Court first noted that the insured had not come close to justifying a discharge of the pending show-cause order. Rather, the insured’s responsive filing refers to the Court's show cause order only indirectly and does not deny, or offer any justification for, disregarding case-related communications for several months. Even if that were not enough, the Court further held that the insured’s spoliation of evidence likewise provides sufficient basis for dismissal given that Courts have inherent authority to sanction parties for failure to preserve potential evidence. According to the Court, dismissal with prejudice was the only appropriate sanction in light of the insured’s violation of the obligation to preserve the property. Not only did the insured ignore multiple requests from the insurer to inspect, but during the same time frame the insured found time to allow inspections of the building as part of the sale by both the Village of Carpentersville and the property's buyer. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!

May 10, 2017 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April 15, 2017). It turns out, the note controls. The Facts In ZB, ZB, N.A. (ZB), a Utah bank, lent money to the Hoellers to purchase a commercial property in Missouri. The note included a choice-of-law provision stating that Utah law governed the debt. The deed of trust securing the commercial property, however, provided that Missouri law controlled “procedural matters related to the perfection and enforcement of [ZB’s] rights and remedies against the [p]roperty.” In 2012, the Hoellers defaulted, and the bank recovered the property through a trustee’s sale. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

Identifying and Accessing Coverage in Complex Construction Claims

September 29, 2021 — Jeffrey J. Vita & Michael V. Pepe - Saxe Doernberger & Vita, P.C.
I. Introduction First-party, third-party, builder’s risk, professional liability, commercial general liability, wrap-ups, and additional insured status are all potential sources of insurance coverage for a large construction loss. Therefore, it is critical for construction industry participants, from owners and developers to general contractors and their subcontractors, to have a functional knowledge of the different types of insurance coverage available to them and how those coverages intersect to respond to a loss. This paper presents a brief overview of the various types of coverage available to contractors, construction managers, and owners in a large construction loss and the risks each coverage is designed to insure. In general, there are two forms of coverage: (1) First-party liability coverage, which protects an insured’s own losses on a project during construction; and (2) Third-party liability coverage, which insures the project participants for losses that become the subject of claims or suits brought against the project participants by third parties. When a loss occurs, such as property damage, both types of coverage can be implicated. For example, if a fire burns down a building under construction, the contractor likely would incur first-party losses such as cleanup costs. The contractor may also have third-party exposure if the owner alleges that the contractor was responsible for the fire. On the other hand, when a bodily injury occurs, all losses to the contractor will be third-party losses. A broad overview of each of these policies is provided below. Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita and Michael V. Pepe, Saxe Doernberger & Vita Mr. Vita may be contacted at JVita@sdvlaw.com Mr. Pepe may be contacted at MPepe@sdvlaw.com Read the court decision
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Construction Defect Claim Survives Insurer's Summary Judgment Motion Due to Lack of Evidence

December 23, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court denied the insurer's motion for summary judgment on a construction defect claim due to lack of evidence. Statesboro Erectors, Inc. v. Owners Ins. Co., 2024 U.S. Dist. LEXIS 176555 (N.D. Ga. Sept. 30, 2024). Griffco was the general contractor for a construction project. King Steel was hired as the "steel fabricator." King Steel subcontracted with Statesboro Erectors to complete certain construction work at the site. Statesboro agreed to the complete, proper and safe erection of the structural steel. A steel collapse occurred at the construction site. According to King Steel, the collapse "appeared to have occurred due to lack of temporary cables or bracing for steel columns." Because of the collapse, King Steel was required to supply additional materials to replace the structural damage caused by the collapse. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Court Holds That One-Year SOL Applies to Disgorgement Claims Under B&P Section 7031

November 23, 2020 — Garret Murai - California Construction Law Blog
We’ve talked before about Business and Professions Code section 7031 which courts have referred to as “harsh[ ],” “unjust[ ]” and even “draconian.” Under Section 7031, a contractor performing work requiring a contractor’s license, but who doesn’t: (1) is prohibited from suing to recover payment for work performed; and (2) is required to disgorge all money paid by the project owner for work performed. This is true even if the project owner knew that the contractor was unlicensed, the contractor was only unlicensed during part of the time it performed work requiring a license, and even if the work performed by the contractor was free of defects. In short, it’s the nuclear bomb of remedies against a contractor. However, until now, no court has addressed when a project owner is permitted to raise a Business and Professions Code section 7031 claim against a contractor. In the next case, Eisenberg Village of the Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, Inc., Case No B297247 (August 26, 2020), the 2nd District Court Appeal finally answers this question. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Couple Sues for Construction Defects in Manufactured Home

July 31, 2013 — CDJ STAFF
A West Virginia couple has sued the manufacturer of their home for construction defects and damage. Darrell and Teri Pearson claim that the home they purchased from Giles Industries was defective. They further claim that Kitchen’s Construction failed to set the home up properly and that the firm did not repair damaged sections of home. The suit also names the firm that sold the home and others. Read the court decision
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