Seattle Washington Building Expert Directory

Prefabrication Contract Considerations

March 08, 2021 — David Adelstein - Florida Construction Legal Updates
Prefabrication (also referred to as modular construction in instances), is a form of offsite construction where certain construction activities occur at an offsite manufacturing facility or location. Construction components or units are preassembled (prefabricated) at this offsite location prior to being delivered to the project site and then integrated into the project. When preparing a prefabrication contract (including a prefabrication subcontract), there are a number of complex considerations that need to be weighed, and these considerations are bullet-pointed below. The purpose of these bullet-points is to give you considerations to discuss and vet when preparing, negotiating, and agreeing to a prefabrication contract or subcontract. 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

Reminder: Pay if Paid Not All Encompassing (but Could it be?)

December 09, 2019 — Christopher G. Hill - Construction Law Musings
On numerous occasions, I have discussed the need to be careful with so called “pay if paid” clauses in construction contracts. While such clauses are enforceable in Virginia (when phrased correctly), there are exceptions and limitations (for instance in the Miller Act context). One such exception (that I frankly would have thought to be obvious) is that such clauses do not protect a general contractor from paying all subcontractors. Such a clause only protects a general contractor from payment to those subs for whose work the general contractor has not been paid. In other words, if a general contractor has been paid by an owner for a particular subcontractors work, it cannot use the pay if paid clause to deny payment even in the event that other subcontractors were deficient in their work or the owner has failed to pay the general contractor in full. In Precision Contractors Inc. v. Masterbuilt Companies Inc. (PDF) the Fairfax, VA Circuit Court reiterated this principal stating that nothing in the contract suggests that either party to the lawsuit had any intention to shift the risk of non-payment by the owner or non-performance of other subcontractors to the plaintiff (Precision). 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

Appeals Court Reverses Summary Judgment over Defective Archway Construction

February 10, 2012 — CDJ STAFF

A judge has ruled that a plaintiff can go forward with her suit that she was injured by a defective archway during a birthday party. A three-judge panel of the California Court of Appeals issued this ruling on January 23, 2012, in the case of Trujillo v. Cosio.

Ms. Trujillo attended a birthday party at the home of Maria Cosio and Joel Verduzco. A piñata was hung between a tree and a brick archway. Ms. Trujillo went to get candy that had fallen from the piñata, during which the archway fell on her hand. Subsequent examination of the archway showed that it had not been “properly anchored to the supporting pillars to protect the arch from falling.”

Ms. Cosio and Mr. Verduzco argued that they could not have been aware of the defective nature of the archway’s construction, as it had been built at the request of the prior property owner. The structure was constructed without building permits. Mark Burns, a civil engineer testifying for the plaintiff, said that “a reasonable property owner would have thoroughly tested the archway to ensure it was capable of withstanding such horizontal forces before allowing children to enter into the area.” Mr. Burns noted that twenty rope pulls would have been sufficient to demonstrate the structure’s instability.

The trial court rejected Mr. Burn’s statements, finding that the respondents did not have any knowledge of the defect and that a visual inspection should have sufficed. The court noted that this a triable issue, whether visual inspection suffices, or whether the property owners should have done as Mr. Burns suggested and yank a rope twenty times. The court noted that “although a jury may ultimately disagree with Burn’s opinion, it was supported by sufficient foundation and was not speculative.”

The opinion was written by Judge Flier, with Judges Rubin and Grimes concurring.

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Business Risk Exclusions (j) 5 and (j) 6 Found Ambiguous

April 22, 2019 — Tred R. Eyerly - Insurance Law Hawaii
Reversing the district court's grant of summary judgment in favor of the insurer, the Tenth Circuit found that exclusions (j) 5 and (j) 6 were ambiguous as applied to the facts of the case. MTI, Inc. v. Emplrs. Ins. Co., 2019 U.S. App. LEXIS 2543 (10th Cir. Jan. 25, 2019). Western Farmers Electrical Cooperative (WFEC) owned cooling towers which were serviced by MTI, Inc. Wausau provided a CGL policy to MTI. In 2011, MTI found that anchor bolts in Cooling Tower 1 were corroded. WFEC hired MTI to make repairs by installing new anchor castings with anchor bolts and anchor adhesive. On May 23, 2011, MTI employees removed all of the corroded anchor bolts in Tower 1. Because the adhesive applicator had not yet arrived, MTI did not immediately install new anchor bolts. On the night of May 24, strong winds struck the tower, causing it to lean and several structural components broke. Due to the extent of the structural damage, removal and replacement of the tower was determined to be the only viable option. 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

Georgia Federal Court Holds That Pollution Exclusion Bars Coverage Under Liability Policy for Claims Arising From Discharge of PFAS Into Waterways

December 18, 2022 — Paul Briganti - White and Williams
On December 5, 2022, the U.S. District Court for the District of Georgia held that a total pollution exclusion (TPE) in a CGL policy relieved the insurer of any obligation to defend or indemnify a recycling company in a putative class action alleging PFAS contamination of Georgia waterways. See Grange Ins. Co. v. Cycle-Tex Inc., et al., Order, Civ. A. No. 4:21-cv-00147-AT (N.D. Ga. Dec. 5, 2022). The decision adds to a slowly-developing body of case law addressing coverage issues arising out of PFAS-related claims. In Grange, the insured, Cycle-Tex, Inc., was the operator of a thermoplastics recycling facility in Dalton, Georgia. Cycle-Tex and other defendants – which included chemical suppliers, carpet manufacturers, intermediaries, the City of Dalton and the Dalton-Whitfield Solid Waste Authority – were named in a putative class action complaint alleging that residents of Dalton had been injured as a result of the defendants’ discharge of PFAS into local waterways. The complaint sought damages for: (1) alleged harm to the residents’ health by virtue of ingesting contaminated water; (2) alleged property damage resulting from the contamination of the public water supply; and (3) the payment of surcharges and heightened water rates as a result of the alleged contamination. Read the court decision
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Reprinted courtesy of Paul Briganti, White and Williams
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com

Wilke Fleury Attorneys Highlighted | 2019 Northern California Super Lawyers

September 16, 2019 — Wilke, Fleury, Hoffelt, Gould & Birney, LLP
Wilke Fleury is proud to announce that 14 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2019 Northern California Super Lawyers magazine. Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys. Reprinted courtesy of Wilke, Fleury, Hoffelt, Gould & Birney, LLP Read the court decision
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Connecticut Supreme Court Further Refines Meaning of "Collapse"

January 13, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Connecticut courts have been inundated with collapse cases the past couple of years due to insureds' living in homes that were constructed with defective concrete manufactured by J.J. Mottes Concrete Company. In a duo of cases, the Connecticut Supreme Court responded to a certified question from the U.S. District Court, holding that collapse required that the building be in imminent danger of falling down. Vera v. Liberty Mut. Fire Ins. Co., 2019 Conn. LEXIS 339 (Conn. Nov. 12, 2019). Plaintiffs had resided in their home since 2009. The home was built in 1993. In August 2015, after learning about the problem of crumbling basement walls affecting homes in their community due to cement manufactured by Mottes, they retained a structural engineer to evaluate their basement walls. The engineer found spider web cracking approximately 1/16 of an inch wide in the basement walls and three small vertical cracks. There were no visible signs of bowing. The engineer did not find that the walls were in imminent danger of falling down, but recommended that the basement walls be replaced. Plaintiffs submitted a claim under their homeowners policy to Liberty Mutual. The claim was denied. The policy did not define collapse, but stated that collapse did not include "settling, cracking, shrinking, bulging or expansion." 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

"Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)

February 22, 2021 — Angeline Ioannou, Kenneth Walton, Colin Hackett, Gregory Katz & Lauren Motola-Davis - Lewis Brisbois
The winter storm that recently brought several feet of snow to the Northeast signaled that we are, indeed, in the middle of winter. Moreover, our nation’s favorite groundhog, Punxsutawney Phil, saw his shadow on Groundhog Day this year, indicating that winter will be with us for six more weeks. As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws. Connecticut It is well settled in Connecticut that, in the absence of unusual circumstances, in fulfilling their duty to invitees on their property, property owners may wait a reasonable time after the conclusion of a storm to perform ice and snow removal from outside walkways and steps. Kraus v. Newton, 211 Conn. 191, 197-198 (1989). A property owner’s duty to perform reasonable snow and ice removal of outside walkways does not arise until after a reasonable period of time has passed after a storm ends. Umsteadt v. G.R. Realty, 123 Conn. App. 73, 83 (2010). The ongoing storm doctrine does not apply, however, if the defective condition arises from preexisting ice or snow, and not from the ongoing storm. Whether the alleged defective condition was caused by preexisting ice or snow and whether a storm has concluded are both questions of fact that may be decided by a jury. Kraus at 197-198. Reprinted courtesy of Angeline Ioannou, Lewis Brisbois, Kenneth Walton, Lewis Brisbois, Colin Hackett, Lewis Brisbois, Gregory Katz, Lewis Brisbois and Lauren Motola-Davis, Lewis Brisbois Ms. Ioannou may be contacted at Angeline.Ioannou@lewisbrisbois.com Mr. Walton may be contacted at Ken.Walton@lewisbrisbois.com Mr. Hackett may be contacted at Colin.Hackett@lewisbrisbois.com Mr. Katz may be contacted at Greg.Katz@lewisbrisbois.com Ms. Motola-Davis may be contacted at Lauren.MotolaDavis@lewisbrisbois.com Read the court decision
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