SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Survey Finds Tough Labor Market Top-of-mind for Busy Georgia Contractors

July 30, 2019 — Scott Hazy - Construction Executive
In February 2019, the results of the third Annual Georgia Construction Outlook Survey were released. The survey respondents includes general contractors (44%), specialty contractors (53%) and heavy contractors (3%) with gross revenue size that ranged from in excess of $1 billion to less than $5 million. Three-quarters of respondents reported revenues of less than $25 million. Here’s what they had to say about the state of construction in Georgia. Financial Performance and 2019 Outlook It was no surprise to see the majority of respondents reporting increased revenues and margins in 2018. Average gross margins from all respondents increased to 11.3%, up from 9.33% in the prior year. Overall, 72% of respondents saw their gross margins increase and/or remain the same. The largest decrease in margins was seen in the heavy contractor sector, with 33% of respondents reporting a decrease in margins. When it comes to backlog, Georgia is seeing a record number of months in the pipeline and 57% of respondents reported higher backlogs than in the previous year. The increase in backlog helps explain why 84% of respondents are expecting increase in revenues in 2019 over 2018. Interestingly, of those expecting increase in revenue, 40% are anticipating an increase of more than 10% from the prior year. So, the overall financial health of Georgia contractors looks to remain strong at least through 2019. Reprinted courtesy of Scott Hazy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Hazy may be contacted at scott.hazy@btcpa.net

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California Appeals Court Remands Fine in Late Completion Case

November 18, 2011 — CDJ STAFF

The California Court of Appeals in Stanislaus County has reversed the decision of the lower court in Greg Opinski Construction Inc. v. City of Oakdale. The earlier court had awarded the city of judgment of $54,000 for late completion, $3,266 for repair of construction defects and interest, and $97,775 in attorneys’ fees. The late completion of the project was due to actions by the City of Oakdale, however, the court rejected Opinski’s argument that the California Supreme Court decision in Kiewit did not allow this, as his contract with the city established a procedure for claiming extensions.

The appeals court noted that the Kiewit decision has been “criticized as an unwarranted interference in the power of contracting parties to shift the risk of delays caused by one party onto the other party by forcing the second party to give the first notice of any intention to claim an extension of time based on delays caused by first.” They cited Sweet, a professor at Boalt Hall, UC Berkeley’s law school, that Kiewit “gutted” the “provision that conditions the contractor’s right to claim an extension of time for delays beyond his control.”

Further changes in California law in response to the Kiewit decision lead to the current situation which the court characterized as “if the contractor wished to claim it needed an extension of time because of delays caused by the city, the contractor was required to obtain a written change order by mutual consent or submit a claim in writing requesting a formal decision by the engineer.”

Opinski also argued that the lower court misinterpreted the contract. The Appeals court replied that “Opinski is mistaken.” He cited parts of the contract regarding the increase of time, but the court rejected these, noting that “an inability to agree is not the same as an express rejection.”

The court also rejects Opinski’s appeal that “the evidence the project was complete earlier than September 30, 2005, is weightier than the evidence to the contrary,” which they describe as “not a winning appellate argument.” The court points out that the role of an appeals court is not to reweigh the evidence, but to determine “whether the record contains substantial evidence in support of the judgment.”

The court did side with Opinski on one question of the escrow account. They rejected most of his arguments, repeating the line “Opinski is mistaken” several times. They decided that he was mistaken on the timing of the setoff decision and on whether the city was the prevailing party. However, the appeals court did find that Opinski was not liable for interest on the judgment.

The appeals court rejected the awarding of prejudgment interest to the city as the funds from which the judgment was drawn was held in an escrow account. The court noted that the city had access to the funds and could “access the funds when it determined that Opinski had breached the contract.” The appeals court noted that the judgment exhausted the escrow balance and remanded the case to the lower court to determine the amount own to Opinski.

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MDL for Claims Against Manufacturers and Distributors of PFAS-Containing AFFFs Focuses Attention on Key Issues

July 05, 2021 — Gregory S. Capps & Lynndon K. Groff - White and Williams LLP
Claims against manufacturers and distributors of per- and polyfluoroalkyl substances (PFAS)-containing aqueous film-forming foam (AFFF) are hurtling forward. Two important developments in this opening salvo of PFAS-related claims against numerous defendants could have important ramifications not only on future PFAS litigation, but on insurance coverage for potential PFAS liabilities as well. First, ten bellwether cases are progressing closer to trial. Second, the key “government contractor defense” has been slated for briefing. In December 2018, the Judicial Panel on Multi-District Litigation established a multi-district litigation (MDL 2873) for AFFF PFAS claims in the United States District Court for the District of South Carolina. Unlike previous PFAS lawsuits (primarily against DuPont and/or 3M), the lawsuits in MDL 2873 target dozens of defendants who manufactured and distributed AFFF and its constituent chemicals. MDL 2873 now houses approximately 1,200 member cases, which include the following categories of claims: (i) claims for property damage asserted by water providers, (ii) claims for property damage asserted by property owners, (iii) bodily injury claims, and (iv) claims for medical monitoring for potential future injury. Reprinted courtesy of Gregory S. Capps, White and Williams LLP and Lynndon K. Groff, White and Williams LLP Mr. Capps may be contacted at cappsg@whiteandwilliams.com Mr. Groff may be contacted at groffl@whiteandwilliams.com Read the court decision
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Florida Decides Against Adopting Daubert

January 28, 2019 — Rahul Gogineni - The Subrogation Strategist
In Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test. As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million. Read the court decision
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Reprinted courtesy of Rahul Gogineni, White and Williams
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

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Legal Disputes Soar as Poor Information Management Impacts the AEC Industry

July 03, 2022 — Ideagen Plc
Managers in Architecture, Engineering and Construction (AEC) are facing more disruptive disputes in 2022 compared to last year according to the latest independent research from regulatory compliance company Ideagen. The survey of business leaders from AEC firms in the US and UK revealed that 78% of respondents experienced some kind of dispute in the business, compared to 63% in 2021, with information accessibility and visibility, caused largely by high staff turnover, the main root causes. With the challenges that the industry continues to face following COVID and increasing costs of materials, this is an added but unnecessary challenge facing the industry. Stuart Rowe, Vice President of Collaboration Strategy at Ideagen, whose customers include the US Navy, Gensler, Arup and Ramboll, said: "The working world has continued to change in the last 12 months, which is reflected in the AEC industry's evolving priorities. The COVID-19 pandemic led to a huge shift to remote working which saw an increased need for effective collaboration tools, however, this year is appears that hybrid working is the new normal in the industry. "Four-fifths of the people we spoke to said email is still king for project correspondence. This is a huge concern as most project scope changes reside in email inboxes. Failing to properly manage all information and records also prevents a Golden Thread, or a Single Source of Truth, across projects and businesses." Ideagen undertook the independent survey to support developments to their Mail Manager software, used by 2,500 architecture, engineering and construction firms in 16 countries worldwide. It revealed a number of insights into how the industry is managing changing work patterns. Download the full research here. Read the court decision
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New Jersey Judge Found Mortgage Lender Liable When Borrower Couldn’t Pay

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the New Jersey Law Journal, Freedom Mortgage Corporation has to pay treble damages and legal fees after Bergen County Superior Court Judge Gerald Escala found the company “liable under New Jersey’s Consumer Fraud Act for providing a home refinance loan to a 70-year-old borrower it should have known would be unable to make the payments.” “Escala further ruled that Freedom Mortgage must hold off on obtaining a foreclosure judgment for a year to allow an opportunity for borrower Mamie Major to look for someone to buy the property or to obtain refinancing elsewhere,” the New Jersey Law Journal reported. Read the court decision
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U.S. Department of Justice Settles against Days Inn

February 18, 2015 — Beverley BevenFlorez-CDJ STAFF
According to a press release on the Pacific ADA Center website, the Department of Justice (DOJ) reached a settlement with Sairam Enterprises, Inc., the owner of the Tulsa, Oklahoma Days Inn. The DOJ alleged that Sairam violated the Americans with Disabilities Act (ADA) when it denied a room to a veteran and his family because of the veteran’s service dog. Under the settlement, “Sairam will pay $5,000 to the family and will provide its employees with training regarding the ADA and the protections it provides to guests with service animals; it will also post signs and other announcements at its hotel stating its willingness to lodge travelers with service animals.” Read the court decision
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Adjuster's Report No Substitute for Proof of Loss Under Flood Policy

July 30, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for flood coverage was denied when the insurer refused to accept an adjuster's report submitted without a proof of loss. Jackson v. Fid. Nat'l Ins. Co., 2015 U.S. Dist. LEXIS 66589 (E.D. La. May 21, 2015). Plaintiff's property was damaged by Hurricane Isaac. Defendant Fidelity provided flood coverage for the property through the National Flood Insurance Program (NFIP). After plaintiff submitted a flood claim, she executed a proof of loss for $53,803.02. A second proof of loss for contents was submitted in the amount of $26,556.13. Fidelity paid both these claims. Thereafter, an adjuster's estimate of plaintiff's damages, totaling $284,332.91, was submitted to Fidelity. Plaintiff did not submit a supplemental proof of loss for this claim. Fidelity refused to pay the claim and plaintiff filed suit. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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