Seattle Washington Building Expert Directory

A Classic Blunder: Practical Advice for Avoiding Two-Front Wars

August 23, 2021 — William Underwood - ConsensusDocs
“Ha ha! You fool! You fell victim to one of the classic blunders – the most famous of which is ‘never get involved in a land war in Asia’ – but only slightly less well-known is this: ‘Never go in against a Sicilian when death is on the line.’”[1] Vizzini forgot to include “never fight a two-front war with your owner and a subcontractor” on his list of classic blunders, but it certainly belongs there. This article examines practical tips and tricks for general contractors to avoid the classic blunder of a two-front war, including recommended contract provisions and sound project documentation practices. Admittedly, general contractors face a wide array of obligations on a project. And perhaps one of the most delicate balancing acts is managing relationships with the owner and your subcontractors. But far too often general contractors find themselves in the difficult position of fighting a two-front war against one (or more) of their subcontractors and the project owner. But this does not always have to be the case—there are ways for general contractors to reduce the risk of finding themselves in a two-front war. And every project does not have to devolve in a circular firing squad with you in the middle. That said, this article comes with the caveat that a general contractor cannot avoid a two-front war in every instance, nor does this article examine every imaginable way to reduce the risk of a two-front war (see e.g. https://www.consensusdocs.org/pass-through-subcontractor-claims-liquidating-agreements-and-avoiding-a-two-front-war/). But this article will provide an overview of several key tools that can be used to minimize the risk of falling into a classic blunder. Read the court decision
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Reprinted courtesy of William Underwood, Jones Walker LLP
Mr. Underwood may be contacted at wunderwood@joneswalker.com

New Standard Addresses Wind Turbine Construction Safety Requirements and Identifies Hazards

October 09, 2018 — Christopher Daniels - Construction Executive
American Society of Safety Professionals’ industry consensus standard, ANSI/ASSP A10.21 – 2018 Safety Requirements for Safe Construction and Demolition of Wind Generation/Turbine Facilities, is the first standard to identify and address hazards specific to wind turbine construction. It includes nearly a dozen appendices that provide additional consideration and guidance for hazards that vary between projects, turbines and geographical areas. The new A10.21 standard starts by requiring a site hazard identification prior to construction commencing. It establishes the general contractor as the responsible party for site hazard identification assessment. This is because the general contractor is usually one of the first entities on site able to assess the various challenges/concerns such as: geography, utilities, environmental, etc. This assessment is usually done by driving the project site and identifying GPS coordinates of specific challenges. Reprinted courtesy of Christopher Daniels, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Daniels may be contacted at chris.daniels@mortenson.com

KF-103 v. American Family Mutual Insurance: An Exception to the Four Corners Rule

October 29, 2014 — Zach McLeroy – Colorado Construction Litigation
In Colorado, the “complaint rule,” also known as the “four corners rule,” requires an insurer to provide a defense when an underlying complaint alleges any set of facts that may fall within an insurance policy. This can result in a situation where an insurer has a duty to defend although the underlying facts ultimately do not fall within the policy. In KF-103 v. American Family Mutual Insurance, 2014 WL 4409876, District Court Judge Richard P. Matsch recognized an exception to the complaint rule. In doing so, Judge Matsch determined that a court may look beyond the complaint to judicial orders preceding the filing of the complaint to determine whether an insurer has a duty to defend. Therefore, a party may not be able to assert unsupported facts in a complaint for the sole purpose of triggering an insurance policy. KF 103 v. American Family arose out of an underlying easement dispute. In the underlying case, KF 103-CV, LLC (“KF 103”) purchased a piece of property from the Infinity Group. As a condition of the purchase agreement, Infinity Group was required to complete improvements to boundary streets and the intersection of Ski Lane and Sorpresa Lane. Several adjoining property owners (the “neighbors”) objected to the modification of the intersection because it violated an express easement (the “easement”) that provided access to their properties. Read the court decision
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Reprinted courtesy of Zach McLeroy, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLeroy may be contacted at McLeroy@hhmrlaw.com

NJ Condo Construction Defect Case Dismissed over Statute of Limitations

June 11, 2014 — Beverley BevenFlorez-CDJ STAFF
According to an article by Matthew D. Stockwell of the firm Pillsbury Winthrop Shaw Pittman, LLP published in Lexology, “a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations.” Stockwell stated that the “aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.” Read the court decision
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National Engineering and Public Works Roadshow Highlights Low Battery Seawall Restoration Project in Charleston

April 29, 2024 — Engineering and Public Works Roadshow
CHARLESTON, SC — On Thursday, the nationwide Engineering and Public Works Roadshow stopped at the Low Battery Seawall Restoration Project in Charleston. The event highlighted the role engineers and public works professionals play in infrastructure projects like the local seawall improvements that increase coastal resiliency along the historic urban shoreline. The event, which took place along the newly constructed battery wall section between King Street and Battery Place along Murray Boulevard, marked the latest stop of the Engineering and Public Works Roadshow – a joint effort by the American Council of Engineering Companies, the American Public Works Association, and the American Society of Civil Engineers to bring public attention to the essential role engineers and public works professionals play in making our modern world possible. The battery project underscores the importance of innovative engineering solutions in addressing the challenges of climate change and rising sea levels. Thursday's event was also a chance to spotlight the engineering, construction, and public officials involved in the project, whose work often goes unrecognized. About the Engineering and Public Works Roadshow: The Engineering and Public Works Roadshow is a series of nationwide events highlighting critical infrastructure projects and the skilled professionals who make them possible. It is an opportunity to learn about the importance of infrastructure investment, showcase the work of engineers and public works professionals, and celebrate these projects' positive impact on our communities. Learn more at www.infrastructureroadshow.org. Read the court decision
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"On Second Thought"

October 28, 2024 — Daniel Lund III - Lexology
Rehearing requests are seldom granted by courts, and when they are, there’s usually something uniquely compelling in the request and the granting. So is the case in a matter involving monies deposited in the registry of the federal court in New Orleans related to work performed on cleanup after Hurricanes Maria and Irma in the U.S. Virgin Islands. The party depositing monies – which represented subcontract sums paid to it by the general contractor – held back several hundred thousand dollars based on withholding provisions in the various contracts in play. The Court was tasked with evaluating not only a pay-when-paid provision in the subcontract of the claiming party, but also incorporation of the terms of a higher tiered contract which allowed for the withholding. The Court initially granted summary judgment allowing the monies to be withheld. However, on request for rehearing, it was pointed up that while monies could be retained for purposes of covering attorney’s fees and costs related to litigation initiated by the plaintiff subcontractor’s vendors, there was a particular process for that withholding – and an assertion that the process was not followed. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Franchisors Should Consider Signing a Conditional Lease Assignment Rather Than a Franchisee’s Lease

November 17, 2016 — Richard H. Herold – Real Estate Litigation Blog
In Franchise & High Properties, LLC v. Happy’s Franchise, LLC, a 2015 decision issued by the Court of Appeals in Michigan, the franchisor, Happy’s Pizza Franchise, LLC, signed a five-year lease for the commercial space to be occupied by its franchisee, Happy’s Pizza #19, Inc. The franchisor did so to secure a right of first refusal to purchase the property and to enforce the franchise agreement to have the lease assigned to the franchisor if the franchisee defaulted. The issue in the case was whether the term “tenant” referred solely to Happy’s Pizza #19 or whether it also included Happy’s Franchise as a co-tenant. “Tenant” was defined as follows: “Happy’s Pizza #19, Inc., 29102 Telegraph Road, Suite 607, Southfield, MI 48034, the lessee, and Happy’s Pizza Franchise, LLC, a Michigan limited liability company (hereinafter referred to as `Franchisor’), hereinafter designated as the Tenant.” Read the court decision
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Reprinted courtesy of Richard H. Herold, Real Estate Litigation Blog
Mr. Herold may be contacted at rherold@swlaw.com

Prevailing Payment Bond Surety Entitled to Statutory Attorneys’ Fees Even if Defended by Principal

January 09, 2023 — Garret Murai - California Construction Law Blog
For contractors involved in California public works projects the scenario is not uncommon: The general contractor awarded the public works project is required to obtain a payment bond for the benefit of subcontractors and suppliers and the payment bond surety issuing the payment bond requires the general contractor to defend and indemnify the surety from and against any claims against the payment bond. In Cell-Crete Corporation v. Federal Insurance Company, 82 Cal.App.5th 1090 (2022), the 4th District Court of Appeal examined whether a payment bond surety, who prevails in a claim against the payment bond, is entitled to statutory attorneys’ fees when the party actually incurring the attorneys’ fees was the general contractor, pursuant to its defense and indemnity obligations, as opposed to the surety itself. The Cell-Crete Case General contractor Granite Construction Company was awarded a public works contract issued by the City of Thermal known as the Airport Boulevard at Grapefruit Boulevard and Union Pacific Railroad Grade Separation Project. We’ll just call it the “Project.” Subcontractor Cell-Crete Corporation entered into a subcontract with Granite for lightweight concrete and related work. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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