SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

NY Appellate Court Holds Common Interest Privilege Applies to Parties to a Merger

January 07, 2015 — Jay Shapiro, Lori S. Smith and Brittney Edwards – White and Williams LLP
The common interest privilege is a doctrine that operates to maintain the confidentiality of communications between parties and counsel that have aligned interests. It is designed to encourage the free flow of information between these parties, and has historically been utilized primarily in the context of litigation. However, in Ambac Assurance Corp., et al. v. Countrywide Home Loans, Inc., et al., the New York Supreme Court, Appellate Division, First Department recently expanded the common interest privilege by holding that it is applicable in transactional contexts. 2014 WL 6803006, No. 651612/10 (1st Dep’t 2014). The Ambac court defined the common interest doctrine as “a limited exception to waiver of the attorney-client privilege” when a third party is present during a communication between an attorney and his or her client. The doctrine shields such communications from disclosure when they are (1) protected by the attorney client privilege and (2) “made for the purpose of furthering a legal interest or strategy common to the parties.” Until Ambac, New York courts touched on, but never squarely addressed, whether a third requirement must be satisfied before the common interest doctrine can be invoked: “that the communication must affect pending or reasonably anticipated litigation.” The Ambac court addressed and rejected this purported third requirement while reversing the decision of the trial court which found that defendant Bank of America failed “to cite any New York case that applied the common-interest doctrine outside of either joint-representation of two parties by one attorney, or where parties reasonably anticipated litigation.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Jay Shapiro, Lori S. Smith and Brittney Edwards Mr. Shapiro may be contacted at shapiroj@whiteandwilliams.com Ms. Smith may be contacted at smithl@whiteandwilliams.com Ms. Edwards may be contacted at edwardsb@whiteandwilliams.com Read the court decision
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Colorado’s Abbreviated Legislative Session Offers Builders a Reprieve

October 26, 2020 — David M. McLain – Colorado Construction Litigation
Would you believe me if I told you that this year could have been worse for builders? Had COVID-19 not hit, the Colorado Legislature may have passed bills that would have had a severely negative impact on the home building industry. In response to the COVID-19 pandemic, the Legislature temporarily adjourned in mid-March, 67 days into the 120-day legislative session. After a two-month recess, the Legislature returned for approximately one month to pass critical bills including the state budget, the school finance act and what to do with the money from the federal CARES Act. Of the bills on the calendar when the Legislature temporarily adjourned, legislators focused on those that were “fast, free, and friendly,” and let the others fall by the wayside. Bills that died included SB 20-138, which would have extended Colorado’s statute of repose for construction defect claims from six plus two years to 10 plus two years. The bill also contained a number of accrual and tolling provisions, which would have made it harder for builders to convince tribunals that claims were untimely. This bill died on the Senate floor, for lack of support. We will see whether plaintiffs’ attorneys will revive this effort next year. SB 20-093, while not an outright ban on arbitration or a legislative overturning of the Vallagio decision, would have made it harder to administer and more difficult to get cases into arbitration. The bill died under the “fast, free, and friendly” test, i.e., it faced too much opposition. I expect to see this bill again next year, in some form. 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

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What You Need to Know About the Recently Enacted Infrastructure Bill

December 06, 2021 — Garret Murai - California Construction Law Blog
This past week, President Biden signed the Infrastructure Investment and Jobs Act. The bill, commonly referred to as the Infrastructure Bill, provides for $1.2 trillion in spending over the next five years on the nation’s infrastructure and is one of two major legislative initiatives of the Biden Administration, the other being Biden’s $1.75 billion Build Back Better Bill focused on “soft” assets such money to fight climate change, for universal free preschool, for paid family and medical leave, etc. While the Infrastructure Bill contains its fair share of pet projects, economists and historians generally agree that the Infrastructure Bill is the largest investment in the nation’s infrastructure since President Franklin D. Roosevelt’s “New Deal” in 1933. 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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Texas Supreme Court Holds that Invoking Appraisal Provision and Paying Appraisal Amount Does Not Insulate an Insurer from Damages Under the Texas Prompt Payment of Claims Act

September 16, 2019 — John C. Eichman & Grayson L. Linyard - Hunton Insurance Recovery Blog
In two cases decided June 28, 2019, the Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the Texas Prompt Payment of Claims Act (“TPPCA”). But, on the other hand, the court also held that the insurer’s payment of the appraisal award does not as a matter of law establish its liability under the policy for purposes of TPPCA damages. In Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2666484, at *1 (Tex. June 28, 2019), State Farm Lloyds issued property insurance to Barbara Technologies Corporation for a commercial property. A wind and hail storm damaged the property, and Barbara Tech filed a claim under the policy. State Farm denied the claim, asserting that damages were less than the $5,000 deductible. Barbara Tech filed suit against State Farm, including for violation of the TPPCA. Six months later, State Farm invoked the appraisal provision of the policy. More than a year after the suit was filed, appraisers agreed to a value of $195,345.63. State Farm then paid that amount, minus depreciation and the deductible. Barbara Tech amended its petition to include only TPPCA claims. Reprinted courtesy of John C. Eichman, Hunton Andrews Kurth and Grayson L. Linyard, Hunton Andrews Kurth Mr. Eichman may be contacted at jeichman@HuntonAK.com Mr. Linyard may be contacted at glinyard@HuntonAK.com Read the court decision
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No Coverage For Damage Caused by Chinese Drywall

October 28, 2011 — Tred R. Eyerly - Insurance Law Hawaii

The pollution exclusion barred coverage for alleged property damage and bodily injury in Evanston Ins. Co. v. Harbor Walk Dev., LLC, No. 2:10cv312 (E.D. Va. Sept. 9, 2011).

Homeowners sued the insured, Harbor Walk, in three lawsuits, alleging the Chinese drywall installed in their homes emitted sulfides and other noxious gases. This caused corrosion and damage to the air-conditioning and ventilation units, refrigeration coils, copper tubing, faucets, metal surfaces, electrical appliances and other personal items. The homeowners also alleged the compounds emitted by the drywall caused bodily injury, such as allergic reactions, headaches, etc.

Harbor Walk’s insurer, Evanston, filed for a declaratory judgment that the pollution exclusion precluded coverage.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Back to Basics: What is a Changes Clause?

July 18, 2018 — J. Cole Phillips – Smith Currie
The Changes Clause is one of the most important, perhaps the most important, provision in any construction contract. Project designs are rarely perfect. A Changes Clause provides a mechanism for dealing with such imperfections as well as allowing project owners the flexibility to update a project’s design as the project progresses. A good Changes Clause specifies when an owner can change the original scope of the contract, how the parties should resolve the value of the changed scope and when payment should be made to the contractor or a credit given to the owner. A good Changes Clause will also provide a mechanism for the contractor to notify the owner when it believes a change order is due and specify the time within which such notice must be given. For the contractor, failure to pay attention to the requirements of the Changes Clause can lead to forfeiture of the right to seek an adjustment to the contract value or contract completion date. For an Owner, failure to pay attention to and enforce the requirements of the Changes Clause can result in unnecessary payments to the Contractor. Read the court decision
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Reprinted courtesy of J. Cole Phillips, Smith Currie
Mr. Phillips may be contacted at jcphillips@smithcurrie.com

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Industrialized Construction News 7/2022

August 15, 2022 — Aarni Heiskanen - AEC Business
The AEC Business newsletter’s Industrialized Construction edition in July featured the following news stories: The Pros and Cons of Offsite Construction – A French Research Study The study is titled The current use of industrialized construction techniques in France: Benefits, limits and future expectations. The authors are Emna Attouri, Zoubeir Lafhaj, Laure Ducoulombierb and Bruno Linéatte. Read more Rise of the machines? For Construction, Not Yet Matthew Thibault’s article examines the opportunities and challenges of construction robotics. Robots can improve safety and productivity, but the ROI is still unclear to many contractors. Read more 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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Don’t Get Caught Holding the Bag: Hold the State Liable When General Contractor Fails to Pay on a Public Project

June 21, 2017 — Sean Minahan - Construction Contractor Advisor
According to a quick Google search the term “holding the bag” comes from the mid eighteenth century and means be left with the onus of what was originally another’s responsibility. Nobody wants to be left holding the bag. But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying the remaining amount due and owing to our client. Under Nebraska law, liens are not allowed against public projects. Instead the subcontractor is to make a claim on the payment and performance bond secured by the general contractor at the start of the project. In our case, the general contractor never secured a bond on which to make a claim; consequently leaving our client holding the bag. Fortunately, we were able to hand the bag back to the State and obtain full payment for the services and materials provided. Read the court decision
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Reprinted courtesy of Sean Minahan, Lamson, Dugan and Murray, LLP
Mr. Minahan may be contacted at sminahan@ldmlaw.com

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