Seattle Washington Building Expert Directory

Construction Law: Unexpected, Fascinating, Bizarre

April 25, 2012 — CDJ STAFF

Guy Randles offers an amusing set of odd construction law cases in the Daily Journal of Commerce, which he describes as “the unexpected, the fascinating and even the bizarre.” He noted that in one case “a whistleblower claimed he was terminated for reporting to the owner that the contractor’s painters had not applied the required coating thickness.” The whistleblower was the project manager and “was responsible for ensuring the proper coating thickness.”

A less amusing case was that of an architect who was arrested for manslaughter. Gerard Baker “told investigators that the considered the fireplaces to be merely decorative.” Randles notes that “the mansion’s fireplaces were built of wood framing and lined with combustible drywall.” Further, a “gas fireplace even vented into the house’s interior.” Building officials called the house “a death trap.” According to the LA police chief this may be the only case in which building defects lead to a manslaughter charge.

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Can’t Get a Written Change Order? Document, Document, Document

August 29, 2018 — Todd M. Heffner - Smith Currie
Most construction contracts require that any changes to the work be made formally, in writing, via a change order, work directive, or similar written document. Frequently, however, changes to the work or extra work are communicated orally by the architect, engineer, or owner’s representative, instead of in writing. What is the contractor to do in such a situation? The best option is follow the provisions of the contract and demand a written change order before performing changed work. Unfortunately, the realities of construction sometimes make it impossible to get the changes in the proper format in a timely manner. Savvy contractors will maintain schedule and produce written documentation of the change in lieu of a formal change order or directive. But many contractors will simply proceed with the changed work, relying on the owner, architect, or engineer to do the right thing and stand by their oral instructions. Read the court decision
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Reprinted courtesy of Todd M. Heffner, Smith Currie
Mr. Heffner may be contacted at tmheffner@smithcurrie.com

Action Needed: HB24-1230 Spells Trouble for Colorado Construction Industry and its Insurers

March 25, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
In an apparent gift to plaintiffs’ construction defect lawyers, Representatives Parenti and Bacon introduced House Bill 24-1230 on February 12, 2024. The bill was assigned to the House Judiciary Committee and is scheduled for hearing on March 6th, during the afternoon session beginning at 1:30 pm. To date, the bill does not have any senate sponsors, perhaps because the senators are more interested in serving their constituents’ needs for attainable housing than in lining the pockets of their plaintiffs’ construction defect attorney friends. According to the bill’s summary, HB 24-1230 contains the following provisions: Current law declares void any express waivers of or limitations on the legal rights or remedies provided by the “Construction Defect Action Reform Act” or the “Colorado Consumer Protection Act.” Sections 1 and 4 make it a violation of the “Colorado Consumer Protection Act” to obtain or attempt to obtain a waiver or limitation that violates the aforementioned current law. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

English v. RKK. . . The Rest of the Story

December 04, 2018 — Christopher G. Hill - Construction Law Musings
Back in February, I discussed a case relating to indemnity and ambiguity. The opinion in that case, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al., allowed a breach of contract and indemnity claim to move forward despite the fact that conflicting term sheets between the plaintiff and defendant could have been read to violate Virginia law by requiring indemnity for English’s own negligence. In other words, the ambiguity worked in English’s favor (though that is not something to count on). The Court did not however address whether there was any negligence on English’s part and if there was, what was the contractual effect. I’ll bet you were wondering what happened later in that case. Well, here’s the answer. In a subsequent opinion, the Court looked at the same ambiguous and conflicting term sheets between and among those defendants that were required to provide quality assurance services for the construction of a bridge in western Virginia. For the full procedural and factual analysis, be sure to read the full memorandum opinion linked above. Read the court decision
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Reprinted courtesy of Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

A Recession Is Coming, But the Housing Market Won't Trigger It

June 12, 2023 — Edward Harrison - Bloomberg
One big reason to continue to believe this is no 2008-style financial crisis in the making is the housing market, which has held up well. That means, we’re more likely to experience a garden-variety recession, and I think it will happen sometime later this year. Why this isn’t another 2008-style crisis Residential property was famously the trigger for a cataclysmic global financial crisis a decade and a half ago. That’s because residential property is one of the principal assets of the middle classes across the globe. And it’s a leveraged investment to boot because of the money borrowed through mortgages. That makes large and pervasive house-price declines toxic for the economy. But not that many people are worrying about house prices today. So I thought I’d take a breather from the doom and gloom surrounding commercial real estate, banks and the debt ceiling to focus on house prices and why they aren’t worrying us this go round. And I’ll use one of the pricier markets, the UK, as a first example. Read the court decision
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Reprinted courtesy of Edward Harrison, Bloomberg

Pollution Created by Business Does Not Deprive Insured of Coverage

November 26, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court determined that coverage was properly denied under the pollution exclusion of the policies. Headwaters Resources, Inc. v. Illinois Union Ins. Co., 2014 U.S. App. LEXIS 20060 (10th Cir. Oct. 20, 2014). Over 400 residents of Chesapeake, Virginia, filed two lawsuits against the insured, Headwaters, alleged property damage and bodily injury due to pollution generated in connection with the development of a golf course. The complaints alleged that between 2002 and 2007, the defendants used 1.5 million tons of toxic fly ash during construction of a golf course. The insured allegedly transported the fly ash to an open pit adjacent to residential neighborhoods. The chemicals from the fly ash leached into the ground water, damaging the private wells. The fly ash pit also released airborne contaminants that produced a strong smell of ammonia. As a result of the alleged contamination, the property values of plaintiffs' homes depreciated and members of the community faced increased risk of serious bodily injuries caused by exposure to the fly ash. 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

Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
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Does the Implied Warranty of Habitability Extend to Subsequent Purchasers? Depends on the State

October 08, 2014 — Beverley BevenFlorez-CDJ STAFF
Attorneys for Traub Liberman Straus & Shrewsberry LLP (in JD Supra Business Advisor), discussed how state courts have come to different conclusions as to “whether a subsequent purchaser of a previously inhabited residence can recover contract damages from a builder or general contractor for breach of the implied warranty of habitability.” Recently, a Pennsylvania “sided with the builder, holding that the implied warranty of habitability was grounded in contract law. Thus, the Court reasoned that an action for breach of the implied warranty of habitability required a showing of contractual privity between the parties. Because there was no contractual privity between the Conways and the builder, the Conways could not pursue an action against the builder based on a breach of the implied warranty of habitability.” However, other state courts have made other conclusions. “Iowa permits an action for breach of the implied warranty of workmanlike construction by subsequent purchasers and does not require a showing of contractual privity. Rhode Island also does not require contractual privity, but limits liability to latent defects discovered within 10 years of construction.” Vermont and Connecticut, however, require contract privity. Read the court decision
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