Seattle Washington Building Expert Directory

Righting Past Wrongs Through Equitable Development

January 17, 2022 — Bruce Buckley & Pam Radtke Russell - Engineering News-Record
Standing on a dead-end street in Spartanburg, S.C., Harold Mitchell can plainly see the history of injustice in his community. On one side lies the remains of his childhood home. On the other, a shuttered fertilizer plant that was operational when Mitchell was growing up. He distinctly recalls smells of ammonia and sulfur emanating through the neighborhood that “were so pervasive, you didn’t even think about it.” He remembers his father regularly cleaning white dust off their cars, and workers emerging from the plant gates “looking like the Pillsbury Doughboy” covered in fertilizer dust from head to toe. Sometimes, he’d walk with the plant’s night watchman, strolling alongside neon green sewage lagoons located not far from his bedroom window. Reprinted courtesy of Bruce Buckley, Engineering News-Record and Pam Radtke Russell, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Housing Advocacy Group Moved to Dissolve New Jersey's Council on Affordable Housing

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
The New Jersey Law Journal reported that "[a]n affordable housing advocacy group in New Jersey is asking the state Supreme Court to remove from the administration of Gov. Chris Christie the authority to determine municipalities’ obligations for low- and moderate-income housing and to instead place that responsibility in the hands of trial judges." New Jersey's state constitution mandates affordable housing obligations (referred to as the Mount Laurel decisions). “It is no longer possible to trust that COAH can or will faithfully implement the Mount Laurel doctrine,” wrote the center’s associate director, Kevin Walsh, in the motion to enforce litigants’ rights, as quoted by the New Jersey Law Journal. “This should be the end; there should be no more extensions, no further last chances.” Municipalities are protected from being sued by developers, however, last year the court stated "that it would consider lifting that protection if COAH failed to adopt new regulations that passed constitutional muster," according to the New Jersey Law Journal. Read the court decision
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Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit

October 23, 2018 — David Adelstein - Florida Construction Legal Updates
Prior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132. Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:

(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.

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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Separation of Insureds Provision in CGL Policies

August 31, 2020 — David Adelstein - Florida Construction Legal Updates
CGL policies contain a “Separation of Insureds” provision. This provision oftentimes states:

As if each named insured were the only Named Insured; and
Separately to each insured against whom claim is made or “suit” is brought.

This provision is designed to “create separate insurable interests in each individual insured under a policy, such that the conduct of one insured will not necessarily exclude coverage for all other insured.” Evanson Ins. Co. v. Design Build Interamerican, Inc., 569 Fed.Appx. 739 (11th Cir. 2014). This provision also allows one insured under the policy (e.g., additional insured) to sue another (e.g., named insured) without violating potential coverage because there are separate insurable interests. This is a valuable provision in CGL policies. 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

Heads I Win, Tails You Lose. Court Finds Indemnity Provision Went Too Far

May 25, 2020 — Garret Murai - California Construction Law Blog
We all love David and Goliath stories. The underdog winning against the far stronger (and dastardly) opponent. Think Rocky Balboa versus Ivan Drago, the Star Wars Rebellion versus the Galatic Empire, Indiana Jones versus a good chunk of the Third Reich. And now, we have Margaret Williams. The Story of Margaret Williams and her LLC The story, told in Long Beach Unified School District v. Margaret Williams, LLC, Case No. B290069 (December 9, 2019), is about Margaret Williams. Ms. Williams (we’ll just call her “Margaret” going forward because it just sounds better when telling a story) worked for nearly ten years full-time for the Long Beach Unified School District, toiling day in and day out doing construction management and environmental compliance work, including work involving the clean up of material at a school construction site contaminated with arsenic. Although she worked full-time for the District for nearly ten years, she wasn’t an employee. Rather, she was a contractor. And, on top of it all, as a condition of working for the District, the District required that she form a company in order to contract with the District. According to Margaret, “In order to work with the District, I was directed . . . to form a corporation or partnership. This was the only way I could work for the District: I could not enter into a contract with the District as an individual.” So, in 2006, she formed a company, simply called Margaret Williams, LLC. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

October 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .

January 05, 2017 — Garret Murai – California Construction Law Blog
We’ve talked about the Privette doctrine before (see here, here, and here). The Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides in general that project owners and contractors are not responsible for worksite injuries suffered by employees of lower-tiered contractors they have hired, the rationale being that such workers should already be covered under their employers’ workers’ compensation insurance policies. In the twenty years since Privette was decided, however, several exceptions have evolved that have narrowed the doctrine. One exception, known as the retained control exception, allows a contractor’s employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198. Another exception, known as the nondelegable duty exception, permits an injured worker to recover against a hirer when the hirer has assumed a nondelegable duty, including statutory and regulatory duties, that it breaches in a manner that affirmatively contributes to the injury. Padilla v. Pomona College (2008) 166 Cal.App.4th 661. In a recently decided case, Khosh v. Staples Construction Company, Inc., Case No. B268937 (November 17, 2016), the California Court of Appeals for the Second District examined the application of the Hooker and Padilla exceptions where a general contractor was contractually responsible for overall site safety. 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

Sometimes you Need to Consider the Coblentz Agreement

January 19, 2017 — David Adelstein – Florida Construction Legal Updates
Since insurance, particularly liability insurance, is such an important component when it comes a construction project, understanding certain nuances such as a Coblentz Agreement (a what kind of agreement agreement?!?—keep reading) becomes helpful. If there is a construction defect claim / lawsuit, the implicated parties (e.g., contractor, design professional, subcontractor, sub-consultants) are going to tender the claim / lawsuit to their respective liability insurer. This is what they should be doing – notifying the insurer so that the insurer can defend them from the claim / lawsuit and indemnify them from covered damages associated with the claim / lawsuit. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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