SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

California Mechanics’ Lien Case Treads Both Old and New Ground

July 27, 2020 — Garret Murai - California Construction Law Blog
People do the darnedest things. The next case, Carmel Development Company v. Anderson, Case No. H041005, 6th District Court of Appeals (April 30, 2020), involving a 10-plus year oral design and construction contract, inconsistent accounting practices, two mechanics liens, and side-agreements, takes us down some well traveled paths but also covers some new ground. Carmel Development Company v. Anderson Carmel Development Company, Inc. provided design and construction services at a luxury subdivision known as Monterra Ranch located in Monterey under an oral contract with developer Monterra LLC which spanned over more than a decade. Between 1996 and 2008, Carmel was involved in the infrastructure design and construction of the subdivision including lot design and layout, the location of building envelopes on each lot, water and sewage system layout and design, and roadway design, construction and repair. When roughly half of the lots were developed and sold Monterra ran out of money and Carmel sued. 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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Worker’s Compensation Exclusivity Rule Gets “Trumped” by Indemnity Provision

October 27, 2016 — Garret Murai – California Construction Law Blog
Sorry, I couldn’t help myself with the title. The next case, Aluma Systems Concrete Construction of California v. Nibbi Bros., Inc., California Court of Appeals for the First District, Case No. A145734 (August 16, 2016), discusses the interplay between indemnity provisions and the worker’s compensation exclusivity rule. The worker’s compensation exclusivity rule generally provides that worker’s compensation insurance is the exclusive remedy of employees for injuries or death arising out of the course and scope of their employment. In the Aluma case, the California Court of Appeals, addressed what happens when a subcontractor’s employees are injured on a project, sue the general contractor, and the general contractor, pursuant to an indemnity provision in its subcontract, tenders the claim to the subcontractor whose worker’s compensation insurance has already paid the employees. Read the court decision
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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 Supreme Court Rules That Subsequent Purchaser of Home Is Bound by Original Homeowner’s Arbitration Agreement With Builder

May 29, 2023 — Kim Altsuler - Peckar & Abramson, P.C.
In a new opinion Lennar Homes of Texas Land and Construction, Ltd., et al. v. Kara Whiteley, Cause No. 21-0783, 66 Tex. Sup. Ct. J. 8740, issued May 12, 2023, the Texas Supreme Court partially reversed two lower court decisions and held that an arbitration provision contained in the original homeowner’s contract with the builder was binding on a subsequent homeowner. In the decision, the court found that Kara Whiteley—the second owner of the home in Galveston, Texas—was bound to arbitrate her construction defect claims with Lennar by virtue of the doctrine of “direct-benefits estoppel.” The rationale was based on the fact that Whitely was seeking benefits emanating from Lennar’s contract with the original homeowner. The residence in question was first purchased from Lennar in May 2014. Whiteley purchased the home in July 2015. The original contract documents included several arbitration provisions—one in the Purchase and Sale Agreement, one in the Limited Warranty issued by Lennar, and one in the general warranty deed. Whiteley sued Lennar in Galveston County District Court alleging mold growth and other defects at the property. Lennar moved for arbitration and its motion was granted. The parties arbitrated the case and Lennar received an award in its favor. Lennar then moved the District Court to confirm the arbitration award, and Whiteley filed a cross-motion to vacate the award, arguing that Lennar’s original motion to compel arbitration should not have been granted. The District Court agreed with Whiteley, vacating the arbitration award. Lennar appealed. The Court of Appeals affirmed the District Court’s vacatur, and Lennar appealed to the Texas Supreme Court. Read the court decision
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Reprinted courtesy of Kim Altsuler - Peckar & Abramson, P.C.
Ms. Altsuler may be contacted at kaltsuler@pecklaw.com

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Montrose III: Vertical Exhaustion Applies in Upper Layers of Excess Coverage

May 18, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Montrose Chemical Corp. of Cal. v. Superior Court (No. S244737, filed 4/6/20) (Montrose III), the California Supreme Court held that, as between excess insurers at differing levels of coverage, a rule of “vertical exhaustion” or “elective stacking” applies, whereby the insured may access any excess policy once it has exhausted other excess policies with lower attachment points in the same policy period. The Court limited the rule to excess insurance, stating that “[b]ecause the question is not presented here, we do not decide when or whether an insured may access excess policies before all primary insurance covering all relevant policy periods has been exhausted.” Montrose manufactured the insecticide DDT in Torrance from 1947 to 1982. In 1990, the state and federal governments sued Montrose for environmental contamination and Montrose entered into partial consent decrees agreeing to pay for cleanup. Montrose claimed to have expended in excess of $100 million doing so, and asserted that its future liability could exceed that amount. 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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Harrisburg Sought Support Before Ruinous Incinerator Retrofit

September 20, 2017 — Jonathan Barnes & Richard Korman - Engineering News-Record
When former Harrisburg, Pa., Mayor Stephen Reed (D) and his aides set out to retrofit the city’s aging incinerator in late 2000, the project spun out of control over the coming years, enlarging the debt the city owed on the facility to $300 million and sinking Harrisburg into financial ruin. Reprinted courtesy of Jonathan Barnes, ENR and Richard Korman, ENR ENR staff may be contacted at ENR.com@bnpmedia.com Read the court decision
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Ninth Circuit Upholds Corps’ Issuance of CWA Section 404 Permit for Newhall Ranch Project Near Santa Clarita, CA

April 11, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On April 9, the U.S. Court of Appeals for the Ninth Circuit, in a unanimous opinion, rejected the challenges to the U.S. Army Corps of Engineers’ (Corps) decision to issue a Clean Water Act (CWA) Section 404 permit to the Newhall Land and Farming Company (Newhall), which is planning a large residential and commercial project in Los Angeles County near Santa Clarita, CA (the Newhall Ranch project). The Newhall Ranch project, which involves the discharge of dredge and fill materials into the Santa Clara River, has been scaled back and modified, and the Ninth Circuit held that it is consistent with the CWA, the Corps’ regulations and procedures, as well as the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA). The Ninth Circuit provides an excellent primer on the Section 404 permitting process. The case is Friends of the Santa Clara River v. U.S. Army Corps of Engineers. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Plehat Brings Natural Environments into Design Tools

May 01, 2019 — Aarni Heiskanen - AEC Business
Natural elements are an essential part of the built environment. However, BIM tools offer almost no support to landscape architecture. Plehat is introducing a new solution that helps architects and decision-makers to understand the dynamics of nature and make smart design choices. Plehat used photogrammetric 3D models of Uunisaari islands, to the south of Helsinki. The experimenters modeled the buildings and the plants on the island and used game engine software to create a virtual reality (VR) experience. They called the app the “Landscape Time Machine”. The technology solution they developed paved the way for new software that the company will launch later this year. In 2018, Plehat, a landscape design startup, received funding from the Finnish national KIRA-digi digitalization project to carry out a test. The experimentation demonstrated how seasonal changes and weather conditions affect plants, and how the environment can be visualized and analyzed virtually. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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New York Appellate Court Restores Insurer’s Right to Seek Pro Rata Allocation of Settlements Between Insured and Uninsured Periods

March 28, 2022 — Patricia B. Santelle & Frank J. Perch, III - White and Williams LLP
In Liberty Mut. Ins. Co. v. Jenkins Bros., 2022 N.Y. App. Div. LEXIS 1846 (App.Div. 1st Dept. March 22, 2022), the New York Supreme Court, Appellate Division, First Department, issued a ruling reversing the trial court and holding that an insurer was entitled to allocate a portion of asbestos claim settlements it negotiated to time periods when its dissolved insured was without coverage. The decision overturns a trial court ruling that the insurer was barred from denying liability for the full amount of the settlements because the insurer had become the “real party in interest” as a result of a prior court order directing it to accept service of process on behalf of a dissolved insured. The trial court held that the insurer stood in the shoes of the insured for all purposes by accepting service and negotiating settlements, and was therefore estopped from denying liability for the full amount of the settlements. Reprinted courtesy of Patricia B. Santelle, White and Williams LLP and Frank J. Perch, III, White and Williams LLP Ms. Santelle may be contacted at santellep@whiteandwilliams.com Mr. Perch may be contacted at perchf@whiteandwilliams.com Read the court decision
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