Seattle Washington Building Expert Directory

Civility Is Key in Construction Defect Mediation

February 12, 2013 — CDJ STAFF
Eugene Heady of Smith Currie & Hancock reminds those involved in construction disputes to “lay down the swords.” Yes, it’s an adversarial situation, but “mediating parties must understand that courtesy, candor, and cooperation on the part of their respective lawyers will help contain the conflict and help resolve the dispute more quickly and efficiently.” Instead of doing battle with the opposition, Mr. Heady says that one should “approach mediation as an opportunity to solve a complex problem, rather than an opportunity for conquest over one’s enemy.” Read the court decision
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Incorporation by Reference in Your Design Services Contract– What Does this Mean, and Are You at Risk? (Law Note)

June 19, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Has an Owner ever asked you to sign his contract before you started work on a new design project? Rhetorical question– this happens all the time, right? Especially in commercial work, developers or owners typically are not happy to simply agree to your Proposal for Services, but instead want you to sign *their* contract. There are some risks with that you should be aware of — one of which is the seemingly arcane and legalistic language that reads something like this:

“The Developer’s contract with Owner is hereby incorporated by reference.”

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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

GRSM Team Wins Summary Judgment in Million-Dollar HOA Dispute

December 17, 2024 — Robert A. Bragalone & B. Ryan Fellman - Gordon Rees Scully Mansukhani
Gordon Rees Scully Mansukhani Partner Bob Bragalone and Senior Counsel Ryan Fellman won a complete summary judgment on behalf of five board members who had been added to an HOA dispute by the defendant homeowners. The GRSM team resolved the matter within just 60 days of taking over the case, bringing an end to a legal battle that had lasted more than four years. The dispute began when the HOA, as plaintiff, filed suit against the homeowners in Denton County District Court. The HOA alleged that the homeowners had violated the HOA’s Covenants, Conditions, and Restrictions by constructing a non-conforming carport and sought a declaratory judgment to resolve the issue. In response, the homeowners filed a counterclaim and third-party petition, adding the individual HOA board members to the lawsuit. They accused the board members—who were serving in a voluntary capacity—of mishandling the dispute and filed claims against them for intentional infliction of emotional distress, negligence, and gross negligence. Reprinted courtesy of Robert A. Bragalone, Gordon Rees Scully Mansukhani and B. Ryan Fellman, Gordon Rees Scully Mansukhani Mr. Bragalone may be contacted at bbragalone@grsm.com Mr. Fellman may be contacted at rfellman@grsm.com Read the court decision
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Narrow Promissory Estoppel Exception to Create Insurance Coverage

August 07, 2022 — David Adelstein - Florida Construction Legal Updates
There is an affirmative claim known as promissory estoppel. (Whereas equitable estoppel is used an affirmative defense, promissory estoppel is used as an affirmative claim.) To prove promissory estoppel, a plaintiff must plead and prove the following three elements: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.” Romo v. Amedex Ins. Co., 930 So.2d 643, 650 (Fla. 3d DCA 2006) (citation and quotation omitted). Stated differently: “A party will be estopped from denying liability under the principle of promissory estoppel when the party makes ‘[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance…[and] injustice can be avoided only by enforcement of the promise.’” Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991). 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

'There Was No Fighting This Fire,' California Survivor Says

September 14, 2020 — The Associated Press (Brian Melley & Terence Chea) - Bloomberg
Berry Creek, Calif. (AP) -- John Sykes built his life around his cabin in the dense woods of Northern California. He raised his two children there, expanded it and improved it over time and made it resilient to all kinds of disaster except fire. So when the winds started howling Tuesday and the skies became so dark from smoke that he had to turn on his lights at midday, he didn’t hesitate to leave it all behind in an instant before any evacuation order. With the disaster two years ago in nearby Paradise, in which 85 people perished in the deadliest and most destructive fire in modern state history, still fresh on his mind, Sykes got his wife and a friend into his car and left with only a change of clothes each. “All I could do is look in the rear view mirror and see orange sky and a mushroom cloud and that told me it was hot and to keep going,” Sykes said Friday. “It was a terrifying feeling.” Read the court decision
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Reprinted courtesy of Bloomberg

Voluntary Payments Affirmative Defense Does Not Apply in Contract Cases

July 16, 2023 — David Adelstein - Florida Construction Legal Updates
In certain matters, there is an affirmative defense referred to as the “voluntary payments” defense. This defense states, “where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered.” Avatar Properties, Inc. v. Gundel, 48 Fla.L.Weekly D1272c (Fla. 6th DCA 2023) quoting City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959). This voluntary payments defense could be construed as a “gotcha” defense, right? Unfair! You voluntarily made the payment with knowledge of the facts; therefore, you are s**t out of luck when it comes to recovering the potentially wrongful payment. Well, guess what? This voluntary payments affirmative defense does NOT apply in contract disputes. This is codified by Florida Statute s. 725.04 which states: “When a suit is instituted by a party to a contract to recover a payment made pursuant to the contract and by the terms of the contract there was no enforceable obligation to make the payment or the making of the payment was excused, the defense of voluntary payment may not be interposed by the person receiving payment to defeat recovery of the payment.” Fla.Stat. s. 725.04. See also Avatar Properties, supra (explaining voluntary payment defense does not apply in contract cases and even in non-contract cases it doesn’t apply if payment made under coercion or compulsion). 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

Texas Supreme Court Holds that Invoking Appraisal Provision and Paying Appraisal Amount Does Not Insulate an Insurer from Damages Under the Texas Prompt Payment of Claims Act

September 16, 2019 — John C. Eichman & Grayson L. Linyard - Hunton Insurance Recovery Blog
In two cases decided June 28, 2019, the Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the Texas Prompt Payment of Claims Act (“TPPCA”). But, on the other hand, the court also held that the insurer’s payment of the appraisal award does not as a matter of law establish its liability under the policy for purposes of TPPCA damages. In Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2666484, at *1 (Tex. June 28, 2019), State Farm Lloyds issued property insurance to Barbara Technologies Corporation for a commercial property. A wind and hail storm damaged the property, and Barbara Tech filed a claim under the policy. State Farm denied the claim, asserting that damages were less than the $5,000 deductible. Barbara Tech filed suit against State Farm, including for violation of the TPPCA. Six months later, State Farm invoked the appraisal provision of the policy. More than a year after the suit was filed, appraisers agreed to a value of $195,345.63. State Farm then paid that amount, minus depreciation and the deductible. Barbara Tech amended its petition to include only TPPCA claims. Reprinted courtesy of John C. Eichman, Hunton Andrews Kurth and Grayson L. Linyard, Hunton Andrews Kurth Mr. Eichman may be contacted at jeichman@HuntonAK.com Mr. Linyard may be contacted at glinyard@HuntonAK.com Read the court decision
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Massachusetts Roofer Killed in Nine-story Fall

January 08, 2019 — Johanna Knapschaefer - Engineering News-Record
A 41-year-old roofer from Haverhill, Mass. fell through a roof hole nine stories to his death on Dec. 18 while working on an apartment building project in Haverhill, a city north of Boston. Read the court decision
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Reprinted courtesy of Johanna Knapschaefer, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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