Seattle Washington Building Expert Directory

Catching Killer Clauses in Contract Negotiations

January 29, 2024 — James T. Dixon - Construction Executive
Risk-management personnel who are in the business of reviewing and negotiating construction contracts have some simple tools at their disposal to make sure their edits are addressing all of the killer risk-shifting clauses in those contracts. One of those is the index to that document. But not all authors of construction contract documents are kind enough to include an exhaustive index in their form agreements. One of the most popular sets of general conditions, the A201 General Conditions published by the American Institute of Architects, includes one that is fairly comprehensive. It identifies the six terms that include a reference to indemnification, for example. On the other end of the spectrum are the innumerable custom forms created by public and private project owners, and these rarely have an index. Even more powerful than an index is the search or find functions that are available in word processing applications and now in Adobe, the publisher of documents in portable document format, more commonly known as PDF. But with PDF documents, one must be careful to make sure the document under review is in fact searchable. Because every letter counts, it is important to have full confidence in the integrity of the search. Reprinted courtesy of James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Court of Appeals Upholds Default Judgment: Serves as Reminder to Respond to Lawsuits in a Timely Manner

October 02, 2023 — Anna Basnaw - Ahlers Cressman & Sleight PLLC
In Cyrus Way Partners, LLC. (“Cyrus”) v. Cadman, Inc. (“Cadman”), the primary issue on appeal was whether the trial court erred in denying Cadman’s motion to vacate the default judgment under Civil Rules 55 and 60. A default judgment is a legal ruling that can be entered in favor of the plaintiff when the defendant fails to respond to a lawsuit. If that happens, the court may resolve the lawsuit without hearing from the other side. In Washington, a party typically has 20 days to appear in a suit before being at risk for default judgment. If a default judgment is entered for the plaintiff, the defendant can move to vacate the default judgment, meaning the defendant hopes the court will set aside the default judgment as if it never happened. In this case, Cadman, the defendant, presents several ultimately unsuccessful arguments for why the default judgment in favor of Cyrus, the plaintiff, should be vacated. Cyrus and Orca Beverage Inc. (“Orca”) are under common ownership. In 2018, Cyrus began a project to build a warehouse for Orca, which included the construction of a large concrete slab. Cadman was hired to supply the concrete. Cyrus hired Olympic Concrete Finishing Inc. (“Olympic”) to finish the concrete. On April 1, 2018, Cadman poured the concrete, and Olympic finished the slab. The next day, Cyrus noticed several problems with the slab, which experts hired by both Cyrus and Cadman opined were caused by an abnormally high air content in the concrete. Read the court decision
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Reprinted courtesy of Ahlers Cressman & Sleight PLLC

Texas Supreme Court Rules on Contractual Liability Exclusion in Construction Cases

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
The Texas Supreme Court ruled on Ewing v. Amerisure Ins. Co. on January 17th, a “much-anticipated” decision according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP. “Construction projects are always the subject of contracts among owners and contractors” Salisbury stated in his article on Lexology.com. The recent decision demonstrates that “an exclusion in the standard Comprehensive Liability Insurance policy that precludes coverage for ‘liabilities assumed under contract’” does not usually “apply to construction contracts.” In 2008, Ewing Construction Company built a set of tennis courts in Corpus Christi, according to Salisbury. “Shortly after construction was complete, according to the school district, ‘the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events.’” After the school district sued Ewing in state court, Ewing “turned the suit over to Amerisure, its CGL insurer, seeking a defense and indemnity. Amerisure denied all coverage, citing the contractual liability exclusion in its policy. This inspired Ewing to sue the carrier in federal district court for the Southern District of Texas.” After several rulings and appeals, the case eventually reached the Texas Supreme Court: “According to the Ewing court, the contract claims that Ewing failed to perform in a good and workmanlike manner ‘are substantively the same as its claims that Ewing negligently performed under the contract because they contain the same factual allegations and alleged misconduct.’ Failure to perform in a ‘good and workmanlike manner’ is functionally and substantively the same as performing negligently. ‘Accordingly,’ the Ewing court said, ‘we conclude that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.’” Read the court decision
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Who is a “Contractor” as Used in “Unlicensed Contractor”?

June 08, 2020 — Taylor Orgeron - Autry, Hall & Cook, LLP
A recent Georgia Court of Appeals case established a rule concerning the effect of an unlicensed contractor failing to disclose that he is unlicensed. In Fleetwood v. Lucas,[1] the contractor was hired by the homeowners to perform renovations on two homes. One of the projects went over budget, and the homeowners failed to pay the remaining balances on both projects. Following their failure to pay, the contractor sued the homeowners for breach of contract, and the jury delivered a verdict in his favor. The homeowners appealed on the grounds that the contractor was barred from bringing suit because the contractor did not have a license to perform the work. Generally, if a contractor does not have a residential or general contractor’s license but performs work when a license is required, the contract is unenforceable. O.C.G.A. § 43-41-17(b). However, under O.C.G.A. § 43-41-17(g), a contractor may perform repair work without a license if the contractor discloses that he does not have a license, and the work does not affect the structural integrity of the project. In this case, the contractor failed to disclose that he did not have a license. Read the court decision
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Reprinted courtesy of Taylor Orgeron, Autry, Hall & Cook, LLP
Mr. Orgeron may be contacted at orgeron@ahclaw.com

A Construction Stitch in Time

October 28, 2015 — Christopher G. Hill – Construction Law Musings
It’s a cliche for a reason that “A Stitch in Time Saves Nine.” Why? Because it is almost always cheaper and more efficient in the long run to get something right the first time than to fix it later. This old adage is true in life, and particularly true in the world of construction. Whether it’s measuring twice before making your bid, checking with your subcontractors and suppliers to be sure they haven’t missed anything when giving you a price, or yes (and you knew this was coming), being sure that your contracts are written as they should be and cover the bases. To use another construction related analogy, these types of basic practices create a great foundation for your construction project(s) that will (hopefully) see you through to a successful and profitable construction project. Aside from the last of my examples, how can adding a knowledgeable construction attorney help with laying this foundation? We construction lawyers spend our days either dealing with problems that have occurred (not ideal), anticipating risks that could occur (better, though can lead to a relatively cynical world view), and advising clients before the fact of the potential risks and how to best avoid them (best). Speaking from experience, I would much rather spend my time keeping my construction clients making money and avoiding the pitfalls of the “Murphy’s Law” governed world of construction than spend time with them in court. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Carbon Monoxide Injuries Caused by One Occurrence

April 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Injuries from carbon monoxide poisoning to two families living in the insured's apartment complex arose from a single occurrence. Kosnoski v. Rogers, No. 13-0494, Memorandum and Decision (W. Va. Feb. 18, 2014). The families lived in two apartments in the same complex owed by Marc Rogers. Members of the two families suffered serious injuries from carbon monoxide poisoning and one family member died. A gas boiler furnace in the basement of the apartment complex created the carbon monoxide. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Missouri Asbestos Litigation Reform: New Bill Seeks to Establish Robust Disclosure Obligations

March 15, 2021 — Jennifer B. Pigeon - Lewis Brisbois
Missouri State Senator Eric Burlison is reviving attempts to reform asbestos litigation in the State of Missouri through the introduction of SB 331. This bill was pre-filed on December 29, 2020 and first read on January 6, 2021. The bill establishes disclosure procedures for claimants in asbestos-related lawsuits. Specifically, the bill, if passed, would require claimants in civil asbestos-related lawsuits to file a sworn information form within 30 days of filing an asbestos-related lawsuit. The required disclosures under SB 331 include, but are not limited to (1) each asbestos-containing product to which the exposed person was exposed and each physical location at which the exposure occurred; (2) the identity of the manufacturer or distributor of specific asbestos-containing products for each named exposure; (3) the specific location and manner of each exposure; (4) the beginning and end dates of each exposure, the frequency and length of each exposure, and the proximity of the asbestos-containing product or its use to the exposed person; and (5) a certification that any claim that can be made with a bankruptcy trust concerning any asbestos injury to the exposed person has been filed. Read the court decision
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Reprinted courtesy of Jennifer B. Pigeon, Lewis Brisbois
Ms. Pigeon may be contacted at Jenna.Pigeon@lewisbrisbois.com

Sixth Circuit Rejects Claim for Reverse Bad Faith

June 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Sixth Circuit rejected the insurer's claim for reverse bad faith against its insured who made a fraudulent claim after her home was destroyed by fire. State Auto Property and Cas. Ins. Co. v. Hargis, 2015 U.S. App. LEXIS 7475 (6th Cir. April 23, 2015). The insured's home burned to the ground early one morning. She filed what she would later admit was a fraudulent insurance claim with State Auto for approximately $866,000. State Auto paid in excess of $425,000 before filing an action to declare the policy void. State Farm's investigation eventually led to the insured's admission that she had a friend burn down her house to collect insurance proceeds. An indictment was issued and the insured pled guilty. She was sentenced to a 60-month term and was ordered to pay restitution to State Auto totaling $672,497. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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