SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

District of Oregon Predicts Oregon’s Place in “Plain Meaning” Pollution Camp

March 29, 2017 — William S. Bennett – Saxe Doernberger & Vita, P.C.
The Federal District Court for the District of Oregon recently decided that Carbon Monoxide constitutes a pollutant within the meaning of a pollution exclusion in a Commercial General Liability (“CGL”) policy. In Colony Ins. V. Victory Constr. LLC, No. 3: 16-cv-00457-HZ (Mar. 14, 2017), the District Court considered whether there was coverage for a pool company that allegedly failed to warn of the “risks of carbon monoxide poisoning associated with operating the heater in an insufficiently ventilated area,” leading to carbon monoxide sickness. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

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Is Your Design Professional Construction Contract too Friendly? (Law Note)

July 09, 2014 — Melissa Dewey Brumback – Construction Law North Carolina
My husband often travels the back roads between Chapel Hill and Fuquay Varina to visit friends. En route (a circuitous route that goes past Sharon Harris Nuclear Power Plant, among other places), he passes by the “Friendly Grocery.” [Sign] No *Loitering*Littering*Alcoholic Beverages on Premises*Bike*Skateboard* *10 minutes Parking Limit*Towing Enforced* I’m not sure which is the “friendly” part of that sign. In fact, the sign seems to be the antithesis of friendly. What does this have to do with your construction contracts? Sometimes, in an effort to please the client and/or secure the project, architects and engineers have the habit of being too friendly in their contract language. That is, you make promises or proposals that may promise too much of a good thing for the client. This can cause big problems. Bigger than being towed away from a rural grocery store in the middle of nowhere. You could be putting your insurance coverage at risk. Have you ever promised to use “best efforts” in your design or plans? Promised to design to a specific LEED standard? Guaranteed 100% satisfaction? You might be putting your errors & omission coverage at issue. By warrantying or guaranteeing something, you are assuming a level of liability well beyond the standard of care required by law. By law, you only need to conform to the standard of care, and your insurance will only provide coverage up to that standard of care. In other words, if you make guarantees or promise “best efforts,” you are contracting to something that will *not* be insured. If something goes wrong, you will be without the benefit of your professional liability coverage. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Colorado Court of Appeals Enforces Limitations of Liability In Pre-Homeowner Protection Act Contracts

February 14, 2013 — Heidi Gassman — Higgins, Hopkins, McLain & Roswell, LLC
Keirns Construction Co. (“Keirns”) hired Landmark Engineering, Ltd. (“Landmark”) to provide a geotechnical investigation and foundation designs for two duplexes Keirns built in Larimer County. Keirns and Landmark signed one contract in 2001 for the geotechnical work and two separate contracts in 2005 for the foundation design of the two duplexes. Each contract contained an identical “risk allocation clause,” which had language specifically limiting Landmark’s liability to Keirns. The risk allocation clause also had language specifically prohibiting claims against individuals and only allowing claims against a corporation. After the two duplexes were built, foundation problems developed, and Keirns filed suit against Landmark for breach of contract and negligence. Keirns also filed suit against two individual employees of Landmark, Wayne Thompson and Larry Miller, for negligence. Messrs. Thompson and Miller performed the geotechnical and design services pursuant to the contracts. Landmark and Messrs. Thompson and Miller filed a motion seeking to enforce the risk of allocation clauses in the contracts, thereby limiting Landmark’s liability. Messrs. Thompson and Miller also filed a summary judgment motion seeking their dismissal from the case based on the prohibition in the risk allocation clause against asserting claims against individuals. Read the court decision
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Reprinted courtesy of Heidi Gassman
Ms. Gassman can be contacted at gassman@hhmrlaw.com

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Inspired by Filipino Design, an Apartment Building Looks Homeward

May 22, 2023 — Sarah Holder - Bloomberg
Austerity and efficiency aren’t the first words that come to mind when you see the angled sawtooth bays of Tahanan Supportive Housing, or catch a glimpse of a rainbow through its lobby. But the dramatic exterior and joyful interior of this San Francisco building are both products of their constraints. When David Baker Architects was approached to design the six-story development, the goal was aggressive: Produce 145 units of permanent supportive housing at under $400,000 a unit, and have the operation up and running in less than three years. The firm accepted the challenge, and by 2022, Tanahan was fully leased to residents, all of whom are San Franciscans who have struggled with chronic homelessness. In a city where affordable units typically cost $600,000 to $700,000 each to construct, keeping in budget and meeting the deadline meant turning to the modular building company Factory OS. It also meant keeping variation at a minimum. The studios are identical, like Lego blocks; instead of being mirrored across a hallway, they’re just rotated 180 degrees. But nothing else about the building feels utilitarian. Read the court decision
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Reprinted courtesy of Sarah Holder, Bloomberg

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Lewis Brisbois’ Houston Office Selected as a 2020 Top Workplace by the Houston Chronicle

December 21, 2020 — David Oubre - Lewis Brisbois
Lewis Brisbois’ Houston office was recently selected for inclusion in the Houston Chronicle’s 2020 Top Workplaces section. To determine the recipients of this honor, the publication surveyed more than 37,000 Houston-area employees regarding their organization’s leadership, cooperation, communication, work-life balance, pay, and benefits. Based upon the employees’ feedback, the publication selected its Top Workplaces winners and announced them during a virtual awards ceremony in November. Houston Office Administrator Kristi Kraeger expressed excitement concerning this honor, explaining, “In the two years I have been with Lewis Brisbois, we have more than doubled in size. We have created a friendly, professional, team-oriented environment, and we strive to provide growth and opportunity to our employees.” Read the court decision
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Reprinted courtesy of David Oubre, Lewis Brisbois
Mr. Oubre may be contacted at David.Oubre@lewisbrisbois.com

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Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717

April 12, 2021 — Tony Carucci - Snell & Wilmer Real Estate Litigation Blog
California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “[i]n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing party is the party specified in the contract or not. But what about an action that alleges tort causes of action against an alter ego of a contracting party but that does not include a breach of contract claim against the alter ego? This was the question facing the California Court of Appeal in 347 Group, Inc. v. Philip Hawkins Architect, Inc. (2020) 58 Cal.App.5th 209. In that case, the plaintiff 347 Group sued and obtained a default judgment for breach of contract against defendant Philip Hawkins Architect, Inc. Id. at 211–12. 347 Group had also sued Philip Hawkins individually as well as Design-Build, Inc., the company Hawkins founded after putting Philip Hawkins Architect, Inc. into bankruptcy. Id. at 212. 347 Group originally alleged claims for breach of contract, fraudulent conveyance, and conspiracy against Hawkins and Design-Build, seeking to establish that Hawkins and Design-Build were the alter egos of the contracting party, Philip Hawkins Architect, Inc., but later dismissed the breach of contract claim. Id. Hawkins and Design-Build eventually prevailed on the tort causes of action, and moved for attorneys’ fees. Id. Read the court decision
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Reprinted courtesy of Tony Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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One Colorado Court Allows Negligence Claim by General Contractor Against Subcontractor

December 20, 2012 — HEATHER ANDERSON , HIGGINS, HOPKINS, MCLAIN & ROSWELL
Judge Paul King of the Douglas County District Court recently confirmed that subcontractors in residential construction owe an independent duty, separate and apart from any contractual duties, to act without negligence in the construction of a home in Colorado. See Order, dated September 7, 2010, Sunoo v. Hickory Homes, Inc. et al., Case No. 2007CV1866; see also Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983); A.C. Excavating v. Yacht Club II Homeowners Ass’n, Inc., 114 P.3d 862 (Colo. 2005). He also verified that the holding in the B.R.W. Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004)[1] case does not prohibit general contractors, such as Hickory Homes, from enforcing a subcontractor’s independent duty to act without negligence in the construction of a home. Read the court decision
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Reprinted courtesy of Heather Anderson, Higgins, Hopkins, McLain & Roswell, LLC.
Ms. Anderson can be contacted at anderson@hhmrlaw.com

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Insurance Telematics and Usage Based Insurance Products

October 29, 2014 — Robert Ansehl – White and Williams LLP
The New York State Department of Financial Services (the "DFS") issued Insurance Circular Letter No. 4 on May 27, 2014 (the “Circular Letter”). The purpose of the Circular Letter was to alert stakeholders of the DFS’ interest in obtaining information about products that use embedded telematic devices, including usage-based insurance products (“UBI”) that provide benefits to insurers and policyholders. As data capture and transmission technology become more advanced, and as user interfaces become increasingly sophisticated, many insurers are considering UBI and other programs that rely upon telematic devices to monitor the behavioral patterns, tendencies and habits of insureds. For example, when these devices are installed in an insured's vehicle, a telematic device can gather driving data, including miles driven, the time of day the driver used the vehicle, and his/her speed, acceleration and braking patterns. This data can be captured and transmitted on a real-time basis that allows insurers to make more effective underwriting determinations and to better align pricing with an insured’s driving tendencies and the resulting attendant risks. Other insurers have applied UBI to homeowner’s insurance where, for example, smoke and other alarms and monitoring devices can monitor and transmit details regarding the resident's risk-based activities (for example, whether and how often and how long the insured uses ovens and stoves on an attended and unattended basis). This data can be used to facilitate an insurer’s ability to correlate insurance coverage decisions with the insured’s actual behavior (as opposed to self-reported behavior) as measured by sophisticated home-based telematic devices. In addition, UBI and other programs provide the data on a real-time basis, as opposed to collecting information via traditional means, principally based upon post-claim reporting. Tempering increased UBI usage are countervailing privacy and data protection concerns and risks. Regulators, insurers and consumers have significant stakes in the availability, access and applications of this information. Read the court decision
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Reprinted courtesy of Robert Ansehl, White and Williams LLP
Mr. Ansehl may be contacted at ansehlr@whiteandwilliams.com

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