Seattle Washington Building Expert Directory

Hurdles with Triggering a Subcontractor Performance Bond

April 05, 2017 — David Adelstein – Florida Construction Legal Updates
There have been a couple of decisions as of late, particularly in federal court, that have gone in favor of a performance bond surety and against a general contractor’s claim against a subcontractor’s performance bond. These decisions have been so unfavorable that they may be swaying certain internal decisions to move to subcontractor default insurance with, perhaps, subcontractors that pose less risk. From the general contractor’s perspective, if they have to stop the management of the job and progress to jump through hoops to trigger the performance bond’s obligations, rightfully or wrongfully, the bond may not provide them the value they need. Performance bonds are an appropriate product in many instances, but there should be more consistency regarding the actual trigger of a subcontractor’s performance bond obligations. Project teams need to absolutely understand what efforts they need to take, and how they need to take such efforts, in order to properly trigger a performance bond’s obligations. This is a must (and I have presented many seminars on this very issue). Or, the general contractor should move away from the traditional AIA /standard performance bond form, which is the direction I always go when I am involved in the drafting of a performance bond. 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

2019 Legislative Session

June 03, 2019 — Steve Heisdorffer – Colorado Construction Litigation
Two bills under consideration as the end of the session nears contain significant changes to Colorado’s Consumer Protection Act (“CCPA”). The bills broaden remedies, make more conduct a breach of the CCPA, and include purely private transactions in the type of conduct that falls within the scope of the CCPA. The bills are House Bill 19-1289 (“House Bill”) and Senate Bill 19-237 (“Senate Bill”). As of April 29, 2019, the House Bill has passed the House. The Senate Bill has not progressed past introduction. It is unclear if both houses of the legislature will have an opportunity to vote on either or both bills before the session ends. The House Bill makes a person liable for CCPA violations based on conduct engaged in “recklessly,” not just knowing conduct. No definition of the term “recklessly” is provided in the House Bill, but Colorado’s attorney general testified “recklessly” “means a company or person acted with reckless disregard for the truth.” (Page 2). No explanation was given of what the word “reckless” in the definition of “recklessly” meant in this context. Another provision of the House Bill adds a “catch all” prohibition that labels as a deceptive trade practice knowingly or recklessly engaging in any unfair, unconscionable, deceptive, deliberately misleading, false or fraudulent act or practice. There is no indication how a person could “recklessly” engage in “deliberately misleading” acts or practices. Read the court decision
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Reprinted courtesy of Steve Heisdorffer, Higgins, Hopkins, McLain & Roswell
Mr. Heisdorffer may be contacted at heisdorffer@hhmrlaw.com

Miller Act Payment Bond Surety Bound to Arbitration Award

December 29, 2020 — David Adelstein - Florida Construction Legal Updates
Here is an interesting case binding a Miller Act payment bond surety to an arbitration award against its prime contractor (bond principal) that it received sufficient notice of. Notice is the operative word. The surety could have participated in the arbitration, elected not to, and when its prime contractor (bond principal) lost the arbitration, it was NOT given another bite out of the apple to litigate facts already been decided. In BRC Uluslararasi Taahut VE Ticaret A.S. v. Lexon Ins. Co., 2020 WL 6801933 (D. Maryland 2020), a prime contractor was hired by the federal government to make security upgrades and interior renovations to a United States embassy in the Czech Republic. The prime contractor hired a subcontractor to perform all of the installed contract work. The prime contractor terminated the subcontractor for default during the course of construction. The subcontractor demanded arbitration in accordance with the subcontract claiming it was wrongfully terminated. The subcontractor also filed a lawsuit asserting a Miller Act payment bond claim against the prime contractor’s surety (as well as a breach of contract action against the prime contractor). The subcontractor made clear it intended to pursue its claims in arbitration and hold the payment bond surety jointly and severally liable. The parties agreed to stay the lawsuit since the facts were identical to those being arbitrated. The arbitration went forward and an award was entered in favor of the subcontractor and against the prime contractor for approximately $2.3 Million. 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

Extreme Rainfall Is Becoming More Frequent and Deadly

November 11, 2024 — Lou Del Bello - Bloomberg
Torrential rains that triggered floods and landslides have killed hundreds of people and displaced millions across parts of Africa, Europe, Asia and the US in recent months. The unprecedented deluges overwhelmed even communities accustomed to extreme weather and showed the limitations of the early-warning systems and emergency protocols established in many countries to avoid major loss of life. Climate scientists have warned that an accelerated water cycle is locked into the world’s climate system due to past and projected greenhouse gas emissions, and is now irreversible. The communities that tend to pay the highest price are often in poorer countries, where environments can be more fragile and governance more patchy, and there are fewer resources to bounce back after a disaster. Read the court decision
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Reprinted courtesy of Lou Del Bello, Bloomberg

Texas “your work” exclusion

January 06, 2012 — CDCoverage.com

In American Home Assurance Co. v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011), claimant Ergon hired insured Cat Tech to perform service on a reactor at Ergon’s refinery. During a start-up of the reactor after Cat Tech had completed its work, the reactor suffered damage. Cat Tech performed additional service and repairs. However, again upon start-up of the reactor, it suffered additional damage. Ergon hired another contractor to repair the reactor. Ergon initiated arbitration proceedings against Cat Tech. Cat Tech’s CGL insurer American Home defended Cat Tech against the Ergon arbitration under a reservation of rights.

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Reprinted courtesy of CDCoverage.com

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Amazon Feels the Heat From Hoverboard Fire Claims

January 20, 2020 — William L. Doerler - The Subrogation Strategist
In State Farm Fire & Cas. Co. v. Amazon.com, Inc., No. 3:18CV166-M-P, 2019 U.S. Dist. LEXIS 189053 (Oct. 31, 2019), the United States District Court for the Northern District of Mississippi considered a Motion for Judgment on the Pleadings filed by defendant Amazon.com, Inc. (Amazon). Amazon argued that, because it was a “service provider” who cannot be held liable under Mississippi’s Product Liability Act (MPLA), Miss. Code § 11.1.63, the negligence and negligent failure to warn claims filed against it by plaintiff State Farm Fire & Casualty Company (State Farm) failed as a matter of law. The court, looking beyond the MPLA, held that State Farm’s complaint stated a claim against Amazon. In State Farm, Taylor and Laurel Boone (the Boones), State Farm’s subrogors, purchased two hoverboards from third parties in transactions facilitated by Amazon. They purchased the first hoverboard on October 31, 2015 and the second on November 10, 2015. The Boones started using the hoverboards on or about December 25, 2015. On March 16, 2016, the hoverboards caught fire and the fire spread to destroy the Boones’ home. As alleged in the amended complaint, the hoverboards were “manufactured by unknown manufacturers from China.” State Farm, as the Boones’ subrogee, filed suit asserting negligence and negligent failure to warn claims against Amazon. Amazon filed a Motion for Judgment on the Pleadings, arguing that State Farm’s claims against it were governed by the MPLA and, as a service provider, it was not liable under the MPLA. In response, State Farm argued that Amazon was liable because it acted as a “marketplace” and that, rather than MPLA claims, Amazon is subject to common law negligence and failure to warn claims. The District Court agreed with State Farm. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Six Reasons to Use Regular UAV Surveys on Every Construction Project

October 14, 2019 — Dustin Price - Construction Executive
UAVs are the future of the construction industry. From accurate 3D modeling simulations to regular safety and maintenance checks, UAVs can improve construction projects in many ways—and the value and applications for UAVs is consistently growing. Drones are agile, cost-effective and safe. Here are some reasons why UAV surveys should be part of any construction project. 1. UAV scans are much faster than human inspections Drones can cover large territory much faster than human inspectors can. They can also be used over more difficult terrain, and they can survey areas that are otherwise inaccessible. A drone survey can be completed in a day; not only does this mean that the territory is well-surveyed each time, but it also means surveys can be done more frequently. Construction projects need to be inspected regularly and on time if the project is to meet its deadlines. Delayed construction projects can cost a company millions of dollars, as construction projects need to be completed stage by stage, usually on a strict timeline. Drones will improve the consistency of the project and, in turn, this will improve the reputation of the company itself. Reprinted courtesy of Dustin Price, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Construction Defects through the Years

July 31, 2013 — CDJ STAFF
Builder has an article on the some building changes over the years that have led to construction defect problems. Is insulation evil? Well, that what some thought in the 1930s. Early attempts at insulating walls trapped moisture causing paint to peel. Then in the 1960s, the rise of aluminum wire lead to an even more serious problem: house fires. And it continues. The plastic piping that was though to last forever when it was installed in the late 70s turned out to have about a decade of life. It’s a short forever. Eventually, polybutylene plumbing was forbidden by building codes. The article has a series of building innovations that seemed like great ideas at the time, but were later found to be problematic. Read the court decision
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SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES