Seattle Washington Building Expert Directory

The Miller Act: More Complex than You Think

October 07, 2016 — Beverley BevenFlorez-CDJ STAFF
Keith Bremer, senior partner of Bremer Whyte Brown & O’Meara LLP, has a feature article in the Fall 2016 issue of Construction Claims Magazine, and discusses how the Miller Act has been slowly changing: “This is a complex piece of legislation that is evolving and has been decided differently depending on the federal district a case is heard in,” Bremer wrote. Bremer explained how the courts continue to rule differently in regards to the Miller Act. “Currently it seems jurisdictions are split on the issue of whether or not subcontractors should be allowed to bring both a federal and state cause of action stemming from payment by a Miller Act bond. Therefore, any surety writing these bonds should pay strict attention to how broad or narrow the federal district that would hear the claim has interpreted the scope of a subcontractor’s remedies for Miller Act claims.” Read the court decision
Read the full story...
Reprinted courtesy of

Collapse of Improperly Built Deck Not An Occurrence

August 17, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The court found that the insured's faulty construction of an outside deck did not arise from an occurrence. Employers Mut. Cas. Co. v. West, 2017 U.S. Dist. LEXIS 113951 (N.D. Miss. July 21, 2017). D.L. Action Construction Company (DLA) constructed multifamily dwellings. They were sued by the homeowners after a deck collapsed at one of the dwellings. Also sued was the subcontractor, Littrell Construction, who installed the deck. The homeowners alleged that Littrell knew that college students would be residing in the units and that the decks would be heavily used. The decks were attached to the building structure using only nails instead of bolts. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly - Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Contractor’s Assignment of Construction Contract to Newly Formed Company Before Company Was Licensed, Not Subject to B&P 7031

October 04, 2021 — Garret Murai - California Construction Law Blog
Add one more to the Business and Profession Code section 7031 archives. In Manela v. Stone, Case No. B302660 (July 1, 2021), the 2nd District Court of appeal held that Section 7031 did not apply to a contractor licensed as a sole proprietor who assigned his contract to his newly formed company although at the time of the assignment the contractor’s individual contractor’s license had not yet been reissued to the incorporated company. The Manela Case On January 4, 2015, John Stone doing business as Stone Construction Company entered into a home remodeling contract with Yosef and Nomi Manela. At the time, Stone had held a contractor’s license since 1982. On February 11, 2015, after work on the project had begun, Stone formed JDSS Construction Company, Inc., and filed a fictitious business name using the same name Stone Construction Company. Stone applied to the Contractors State License Board to have his contractor’s license issued from himself personally to his new corporation. On March 15, 2015, while waiting for the CSLB to reissue his contractor’s license, Stone entered into an assignment agreement between himself and his new company assigning the Manela construction contract. The assignment agreement was signed by Stone in his personal capacity and as President of JDSS Construction. The assignment agreement was not signed by the Manelas. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Constructive Changes – A Primer

October 02, 2018 — Jonathan R. Mayo - Smith Currie
A “constructive change” occurs when an owner action or omission not formally acknowledged by the owner to be a change in the contact’s scope of work forces the contractor to perform additional work. Constructive changes are not formal change orders, but informal changes that could have been ordered under a contract’s changes clause if the change had been recognized by the owner. The constructive change doctrine recognizes that being informally required to do extra work is similar to a formal change order and should be governed by similar principles. Thus, if it is found that a constructive change order did occur, the contractor may be entitled to payment for additional costs incurred, and an extension to the contract performance period. Constructive changes most often arise where there is a dispute regarding contract interpretation, defective plans and specifications, acceleration or suspension of work, interference or failure to cooperate with the contractor, misrepresentation or nondisclosure of superior knowledge or technical information, over inspection, or a delay in providing requested information crucial to the contractor’s ability to continue work. Read the court decision
Read the full story...
Reprinted courtesy of Jonathan R. Mayo, Smith Currie
Mr. Mayo may be contacted at jrmayo@smithcurrie.com

Construction Litigation Roundup: “D’Oh!”

August 12, 2024 — Daniel Lund III - Lexology
The U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act. The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023. After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:

“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’

Read the court decision
Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Up in Smoke - 5th Circuit Finds No Coverage for Hydrochloric Acid Spill Based on Pollution Exclusion

October 19, 2020 — Kerianne E. Kane & David G. Jordan - Saxe Doernberger & Vita
The Fifth Circuit Court of Appeals recently held that an insurer was not obligated to pay damages associated with a hydrochloric acid spill based on a pollution exclusion in the policy. In Burroughs Diesel, Inc. v. Travelers Indemnity Co. of America,1 a trucking company sued its property insurer, Travelers Indemnity Company of America (“Travelers”) when it refused to pay a claim for a storage tank leak which resulted in over 5,000 gallons of hydrochloric acid entering the property and causing significant damage to buildings, vehicles, tools, and equipment. The acid was initially dispensed in liquid form, but quickly became a cloud that engulfed the property. Travelers denied coverage for the claim based on the pollution exclusion because “acids” fell within the policy’s definition of “pollutants.” The trucking company sued Travelers in the United States District Court for the Southern District of Mississippi, alleging breach of contract and breach of good faith and fair dealing for refusing to pay the claim. The trucking company argued that coverage was warranted because there is an exception to the pollution exclusion if “the discharge, dispersal, seepage, migration, release or escape is itself caused by any of the ‘specified causes of loss,’” and the hydrochloric acid cloud was a form of “smoke,” which is a specified cause of loss covered by the policy. The District Court entered summary judgment in favor of Travelers, finding that the trucking company failed to demonstrate that an exception to the pollution exclusion applied. The trucking company appealed to the Fifth Circuit Court of Appeals. Reprinted courtesy of Kerianne E. Kane, Saxe Doernberger & Vita and David G. Jordan, Saxe Doernberger & Vita Ms. Kane may be contacted at kek@sdvlaw.com Mr. Jordan may be contacted at dgj@sdvlaw.com Read the court decision
Read the full story...
Reprinted courtesy of

Proving & Defending Lost Profit Damages

June 09, 2016 — David Adelstein – Florida Construction Legal Updates
I have written numerous articles regarding the challenge in proving lost profit damages. Yes, lost profits are a form of damages in business disputes, but they are a form of damages that are subject to a certain degree of conjecture and speculation. For this reason, lost profit evidence is oftentimes precluded from being presented at trial or lost profit damages are reversed on appeal. This is why it is imperative to ensure i’s are dotted and t’s are crossed when it comes to proving lost profit damages. It is also imperative, when defending a lost profit claim, to put on evidence and establish the speculative nature of the lost profit damages. Read the court decision
Read the full story...
Reprinted courtesy of David M. Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Landlords Beware: Subordination Agreements

May 03, 2017 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In the recent Arizona Court of Appeals case Earle Investments, LLC v. Southern Desert Medical Center Partners, 762 Ariz. Adv. Rep. 12 (2017), the Court of Appeals addressed the question of the scope of a subordination agreement signed by the property owner (Lessor/Landlord) at the request of the Lessee/Tenant and Lessee/Tenant’s Lender. In general, by subordination, Party No. 1 with a higher/better lien priority agrees to allow Party No. 2 (usually a lender providing construction funds for the overall betterment of the property) to get a lien position in front of Party No. 1. Party No. 1 presumably believes the switch of lien position in return for someone else paying for the property improvements will benefit Party No. 1 in the long run by resulting in an increase in the value of Party No. 1’s position. Read the court decision
Read the full story...
Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES