SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

OSHA ETS Heads to Sixth Circuit

December 13, 2021 — George Morrison - White and Williams LLP
On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow. Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:

• The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
• The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
• The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

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Reprinted courtesy of George Morrison, White and Williams LLP
Mr. Morrison may be contacted at morrisong@whiteandwilliams.com

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Insurer Must Defend Construction Defect Claims

October 07, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court found that under New York law, the insurer had a duty to defend construction defect claims where damage to property other than the insured's work product was possible. Am.Home Assur. Co. v. Allan Window Techs., 2016 U.S. Dist. LEXIS 101118 (S.D. N. Y. Aug 2, 2016). Kent Avenue Property ("Kent") sued Allan Window Technologies, Ltd. ("Allan"), alleging that Allan entered a written contract for the design, manufacture, assembly and installation of the window wall systems for a residential condominium building. Pursuant to the contract, Allan agreed to correct all work rejected as defective and to bear all costs for correcting the work. According to the complaint, the window wall systems and vent windows installed by Allan were not water-tight or air-tight, and therefore did not meet the air and water penetration requirements of the contract.The contract had an indemnification provision under which Allan agreed to indemnify, defend and hold harmless Kent from all losses, claims, lawsuits, etc. arising out of damage or injury to property at the project site. Kent sued for: (1) breach of contract; (2) breach of warranty, and (3) contractual indemnity. American Home agreed to defend Allan under a full reservation of rights. American Home then sued for a declaratory judgment to establish it had no duty to defend or indemnify. 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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California Supreme Court Shifts Gears on “Reverse CEQA”

February 23, 2016 — Garret Murai – California Construction Law Blog
The California Supreme Court has shifted gears on so-called “reverse CEQA” under the California Environmental Quality Act (“CEQA”). The Supreme Court, in a much-anticipated decision, in California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015), held that public agencies subject to CEQA are not required to analyze whether existing environmental conditions may impact a proposed project’s future users or residents – also known as “reverse CEQA” or “CEQA in reverse” – as opposed to the more traditional analysis of a proposed project’s impact on the environment, unless: 1. The proposed project risks exacerbating existing environmental hazards – in which case, it is the proposed project’s impact on the environment not the environment’s impact on the proposed project, which compels the evaluation; or 2. A reverse CEQA analysis is already required under statute, for example, on certain airport, school and housing projects. 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

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When is Forum Selection in a Construction Contract Enforceable?

September 29, 2021 — Christopher G. Hill - Construction Law Musings
If there is one mantra that is repeated often here at Construction Law Musings, it is that your construction contract will be strictly construed and Virginia Courts will enforce the provisions as written. This rule includes forum selection clauses. For those that aren’t attorneys, this means that absent a statute to the contrary, the parties can pick the location of any litigation or arbitration by contract. However, the timing of signing that contract makes a difference as a relatively recent Eastern District of Virginia case points out. Marathon Res. Mgmt Grp v. C. Cornell, Inc. examined what happens when work is performed by one party to the contract prior to the execution of the written contract that contains the forum selection provision. In this case, the defendant C. Cornell, Inc. obtained a default judgment in Texas for non-payment by Marathon for painting and cleaning of rooms at Texas A & M University for work invoiced on August 22, 2017, and September 11, 2017. Upon receipt of the garnishment from the Texas Court, Marathon sued C. Cornell in Virginia state court and the defendant removed the case to federal court. Marathon alleged two separate breaches of contract, the first was that C. Cornell violated the forum selection clause of a Master Services Agreement (“MSA”) executed on September 23, 2017. The second was a violation of another clause of the MSA that barred direct communication with any of Marathon’s customers. The second breach was alleged to be by virtue of the garnishment summons to one of Marathon’s customers. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Pre-Suit Settlement Offers and Construction Lien Actions

July 21, 2018 — David Adelstein - Florida Construction Legal Updates
It is unfortunate, but in certain matters, a construction lien foreclosure action is not actually driven by the principal amount in dispute. Oh no. Rather, it is driven by attorney’s fees. That’s right. Attorney’s fees. This is true even though Florida applies the significant issues test to determine the prevailing party for purposes of attorney’s fees. However, oftentimes the prospect of attorney’s fees is enough for parties to fear that exposure. There is a 1985 Florida Supreme Court case that I like to cite if applicable, C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177, 1179 (Fla. 1985), that finds, “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29 [a construction lien claim], a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Accord Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (explaining that although contractor is receiving a judgment in his favor, he may not be the prevailing party if the homeowner offered to settle prior to the lawsuit for an amount equal to or greater than the award in the judgment). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Let it Shine: California Mandates Rooftop Solar for New Residential Construction

May 16, 2018 — Garret Murai - California Construction Law Blog
California. Birthplace of the Frisbee, skateboard, television, canned tuna and (yup) fortune cookies has added another first to the list: California has become the first state in the nation to mandate the use of solar panels for new residential construction. On May 9, 2018, the California Energy Commission (CEC) unanimously approved the state’s 2019 Building Energy Efficiency Standards. The 2019 Energy Efficiency Standards update the California Building Standards Codes found at Title 24 of the California Code of Regulations which are updated every three years. The 2019 Energy Efficiency Standards go into effect on January 1, 2020. 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

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HOA Group Speaking Out Against Draft of Colorado’s Construction Defects Bill

April 30, 2014 — Beverley BevenFlorez-CDJ STAFF
Ed Sealover of the Denver Business Journal reported on a homeowner association group that has spoken out against the recent draft of Colorado’s Construction Defects bill. According to Sealover’s article, Senator Jessie Ulibarri claimed that the “proposed bill…would mandate that homeowners alleging that owner-occupied multi-family structures have major construction defects go through mediation or arbitration before a lawsuit can be filed.” Furthermore, the bill would require “written consent from a majority of unit owners” before the “executive board of a homeowners association files such a lawsuit.” The bill originated due to findings that “[l]ess than 2 percent of new housing stock being built in Colorado is in the form of condos, an anomaly that developers attribute to state laws that allow condo owners to file multi-million-dollar class-action lawsuits even if only a few of them want to move forward with the legal action.” However, Molly Foley-Healy, chairwoman of the Community Associations Institute (CLAC), spoke out against the bill: “Senator Ulibarri’s stated goal is to create more affordable housing, but this bill has nothing to do with affordable housing. Instead, it hurts the very people he said he wanted to help. It effectively blocks homeowners from holding builders responsible for their shoddy construction and leaves homeowners living in HOAs to pick up the tab for repairing the defects.” Read the court decision
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Reprinted courtesy of

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GE to Repay $87 Million for Scaled-Back Headquarters Plan

February 27, 2019 — Rick Clough - Bloomberg
General Electric Co. will reimburse the state of Massachusetts for funds used to develop the manufacturer’s future headquarters, a project that is now being scaled back under Chief Executive Officer Larry Culp. GE and the state will jointly sell the property in Boston’s Fort Point neighborhood where the company will make its future home, according to an agreement revealed Thursday. GE still plans to move into the campus later this year -- as a tenant rather than owner -- but it’s scrapping plans to build an adjacent 12-story tower. Read the court decision
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Reprinted courtesy of Rick Clough, Bloomberg

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