Seattle Washington Building Expert Directory

Warning! Danger Ahead for Public Entities

July 30, 2019 — Michael J. Baker - Snell & Wilmer Under Construction Blog
Public entities are known to assert False Claims actions “to up the ante” to intimidate and aggressively address contractor construction claims. This strategy in the case of John Ross of Industrial Sheet Metal, Inc. (JRI) V. City of Los Angeles Department of Airports (LAWA), 29 Cal. App. 5th 378 (2018), backfired on the public entity, LAWA, in a big way and should serve as a warning to public entities about expanding claims to include False Claim actions. In this case, LAWA was awarded $1 in contract damages, its California False Claims Act (CFCA) claim was rejected by the jury as were JRI’s claims against LAWA. Despite losing on the substantive contract claims, the trial court found that JRI “prevailed in the action” under the relevant CFCA fee provision, Government Code 12652, subd. (g)(9)(B), regardless of JRI’s failure to prevail in the action as a whole. The California Appellate Court (hereinafter “Court”) affirmed the trial court’s finding. The CFCA is analogous to the federal False Claims Act (FFCA; 31 U.S.C. 3729 et seq.). Since the CFCA is patterned on similar federal legislation, it was appropriate for the Court to look to precedent construing this similar federal act in interpreting the CFCA provisions. Accordingly, the Court looked at the False Claims Act cases for guidance in upholding the trial court’s decision in its determination that JRI was the “prevailing party” for determining an attorney’s fees award against LAWA. Read the court decision
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Reprinted courtesy of Michael J. Baker, Snell & Wilmer
Mr. Baker may be contacted at mjbaker@swlaw.com

Texas Allows Wide Scope for Certificate of Merit

January 07, 2025 — Lian Skaf - The Subrogation Strategist
The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate. Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant. In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Common Construction Contract Provisions: No-Damages-for-Delay Clause

March 16, 2017 — David Cook & Chadd Reynolds - Autry, Hanrahan, Hall & Cook, LLP Blog
In continuing our series on common contract provisions found in construction contracts, this post highlights no-damages-for-delay clauses. Parties to a contract – particularly a construction contract – may agree that the performance of the contract must occur within a set amount of time. When a party is delayed in performing a contract, it may incur additional costs due to the delay. In most circumstances, unless the parties agree otherwise, the delayed party would be entitled to an extension of time to perform the contract. But it may also seek to recover the additional costs resulting from the delay. A no-damages-for-delay clause attempts to prevent the delayed party from recovering those additional costs. In construction contracts, an upstream party, such as an owner or prime contractor, typically relies on a no-damages-for-delay clause when presented with a delay claim by a downstream party, such as a subcontractor. Reprinted courtesy of David Cook, Autry, Hanrahan, Hall & Cook, LLP and Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLP Mr. Cook may be contacted at cook@ahclaw.com Mr. Reynolds may be contacted at reynolds@ahclaw.com Read the court decision
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In a Win for Design Professionals, California Court of Appeals Holds That Relation-Back Doctrine Does Not Apply to Certificate of Merit Law

December 20, 2017 — Garret Murai - California Construction Law Blog
The year was 1995. The old guard was still in power in Sacramento. “Button-Down” Pete Wilson was Governor. Willie Brown, the self-nicknamed “Ayatollah of the Assembly,” was Speaker of the Assembly. And Bill “Huggy” Lockyer was Senate Pro Tem. Names that, for many reasons as of late, seem . . . well . . . let’s just say, “quaint.” Their time, however, was coming to an end. Three years earlier, California voters approved Proposition 140, which instituted term limits for the first time in California. And by 1996, the first slate of legislators would be “termed out.” The immediate impact: It was the time for making deals because you didn’t know who would be keeping house next. 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

Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

August 10, 2021 — Karen C. Bennett - Lewis Brisbois
Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing. The opinion conflicts with the Environmental Protection Agency's (EPA) 2020 final rule that sought to limit state and tribal certifying authorities’ ability to delay federal projects through various tolling schemes. 85 Fed. Reg. 42210 (Jul. 13, 2020). EPA’s rule, codified in existing regulations, states that the CWA imposes a strict one-year deadline for certification decisions, otherwise certification is waived. However, the Fourth Circuit’s view suggests that this waiver is not triggered in cases where the certifying authority has acted on the application, even if it takes longer than a year to make a final certification decision. The court ultimately decided the case on other grounds, leaving a resolution on the statutory interpretation question for another day. Read the court decision
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Reprinted courtesy of Karen C. Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

Recent Changes in the Law Affecting Construction Defect Litigation

October 19, 2017 — David M. McLain - Colorado Construction Litigation
On May 23, 2017, Governor Hickenlooper signed HB17-1279 into law. The bill states that before an HOA’s executive board can institute a construction defect action, it must provide notice of the anticipated commencement of the action to each of the HOA’s unit owners, along with certain disclosures about the anticipated action. The bill also requires that the HOA executive committee convene a meeting of the unit owners to consider the action, and that the construction professionals against which the claim is being brought have the opportunity to address the members of the HOA. The bill also states that the HOA executive committee may only initiate a construction defect action if it is approved by “owners of units to which a majority of votes in the association are allocated.” Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Data Is Critical for the Future of Construction

April 19, 2022 — Raghi Iyengar - Construction Executive
According to a recent study, real-time visibility and access to critical data and insights are vital for rapid construction decision-making. Notably, inaccurate and missing data cost the industry almost $2 trillion in 2020. Even more surprising, construction companies often don’t know if they’ve made or lost money until the job is complete or if they’re on schedule until they start falling behind. These findings portray an important reality for the industry: Construction needs to establish and optimize data strategies to ensure it has the visibility control, and transparency needed to improve efficiency and productivity on projects. Luckily, while historically slow to change, the construction industry has begun to adopt technologies that help firms improve efficiency and productivity on projects. With this technology, contractors can establish and optimize data strategies to ensure they have visibility, control and transparency. Embracing data is a game changer as the industry continues to expand. In fact, the report from Autodesk and FMI cited above found that the construction companies using data technologies and strategies saw fewer project delays, less rework and fewer change orders. Reprinted courtesy of Raghi Iyengar, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Window Manufacturer Weathers Recession by Diversifying

October 28, 2011 — CDJ STAFF

American Openings, a Tuscon-based window manufacturer, has responded to the loss of its sales of windows for new home construction by moving into new markets. The Arizona Daily Star reports that American Openings used to see providing windows for new homes as half their business. Now, Tom Regina, the founder and president says “single family is just dead.”

Their products are insulated windows, designed to comply with Energy Star standards. Without new homes being built, now the company is focusing on homeowners and building owners looking for more energy efficient windows. As the windows have two or three panes and special coatings, homeowners using them are eligible for tax credits.

One of their newer products combines their energy-saving coatings with “break resistant” glass. The article notes that the windows repel “all but the most determined burglars.” However, the company is still awaiting special equipment to cut the glass.

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