Seattle Washington Building Expert Directory

Construction Defects Lead to “A Pretty Shocking Sight”

October 14, 2013 — CDJ STAFF
Walls black with mold. Grass growing on carpets. The board chair of the Penhorwood condos, Christine Burton, describes the photos as “a pretty shocking sight.” The residents were all evicted in 2011 and given only fifteen minutes to gather what possessions they could after the buildings were found to be structurally unsound. An attempt was made to stabilize the buildings, but they kept shifting and cracking, exposing the interiors to the elements. The owners of the Fort McMurray condominium complex are suing the developer, contractor, and others for $60 million. Fort McMurray has ordered that the buildings be torn down, although the condo owners don’t have the funds for this. Even the funds for continuing the lawsuit are hard to come by. Ms. Burton notes “because of the evacuation and the cost of stabilizing the building so that we could go in and get people’s furniture and personal effect out has pretty much depleted our funds.” The owners “have no more money.” The condo owners are hoping that they can sell the land where their former homes are in order to recoup some of their losses. Read the court decision
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HHMR Celebrates 20 Years of Service!

October 18, 2021 — David M. McLain – Colorado Construction Litigation
I remember it (almost) like it was yesterday. It was September of 2001, and I was a third-year associate at Long & Jaudon, practicing with the construction litigation group. After a long weekend away, I received word that the firm had just announced that it would cease providing legal services. Long & Jaudon, which formed in 1967, had been a stalwart of Colorado’s defense bar, counting among its number some of the finest and most well-respected defense attorneys in the state. To learn that the firm would be shutting its doors was devastating. I would be out of a job. Soon after L&J’s announcement, Dave Higgins, one of that firm’s senior partners, inquired as to whether I would be interested in starting a new firm focused on supporting Colorado’s construction industry and its insurers. Instead of riding into the sunset of retirement, Dave wanted to leave a legacy. That legacy is Higgins, Hopkins, McLain & Roswell. Shortly after the sprout of the idea, I spent an afternoon at a picnic table in Cheesman Park with Dave Higgins, Steve Hopkins, and Sheri Roswell, sketching out an idea for a new law firm. Twenty years later, HHMR is still here, still serving Colorado’s construction industry and its insurers, and still embodying the principles of service and stewardship upon which the firm was founded. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Nonparty Discovery in California Arbitration: How to Get What You Want

March 02, 2020 — Leilani E. Jones - Payne & Fears
This article was originally published for the Association of Business Trial Lawyers (ATBL) Report, Volume XX, No. 3, Winter 2018 by attorney Leilani L. Jones. Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously. Alternative dispute resolution tends to make sense to most businesses implementing preventive measures for future litigation. Clients, lawyers, and judges can generally agree that arbitration is the more “cost-effective” way to resolve disputes, especially in California. While arbitration is theoretically a lowcost option for dispute resolution, almost all parties (particularly the party defending) bristle at climbing expenditures during discovery. This is all despite the perception of more “streamlined” processes in arbitrations. On balance, arbitrators, employing less formal procedures for discovery disputes, can typically cut to the chase faster than a civil judge. Parties often resolve issues via letter brief and telephonic hearing, if necessary, instead of formal noticed motions with accompanying separate statements. The Judicial Arbitration and Mediation Services, Inc.’s (“JAMS”) own “Arbitration Discovery Protocols” specifically “ensure that an arbitration will be resolved much less expensively and in much less time than if it had been litigated in court.” Accessed at https:// www.jamsadr.com/arbitration-discovery-protocols. Read the court decision
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Reprinted courtesy of Leilani E. Jones, Payne & Fears
Ms. Jones may be contacted at llj@paynefears.com

Defining Constructive Acceleration

March 22, 2021 — David Adelstein - Florida Construction Legal Updates
When it comes to the definition of “constructive acceleration,” the case of Fraser Const. Co. v. U.S., 384 F.3d 1354 (Fed.Cir. 2004) is a cited case and contains an instructive definition, quoted below, for proving a constructive acceleration claim. In a nutshell, a constructive acceleration claim is when the contractor incurs added costs for trying to complete the contract on time when it should be provided extensions of time to perform based on excusable delay (i.e., delay not caused by the contractor). These added costs could be bringing in additional supervision to manage the work, adding manpower to perform the work, working overtime, working weekends, adding more shift work, stacking trades, etc. However, just because a contractor claims they have been constructively accelerated does not make it so. The contractor has to actually ask for an extension of time based on an excusable delay and the owner either denied the extension or unreasonably sat on the request for an extension of time; thus, the contractor incurred significant costs to accelerate in order to finish the project on time because it was deprived of a requested time extension for excusable delay. 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

California Appellate Court Confirms: Additional Insureds Are First-Class Citizens

May 04, 2020 — Scott S. Thomas - Payne & Fears
Many businesses shift risk by requiring others with whom they do business – e.g., vendors, subcontractors, suppliers, and others – to procure insurance on their behalf by making the business an “additional insured” under the other person’s liability insurance policy. Unfortunately, insurance companies sometimes treat these additional insureds as second-class citizens, refusing to acknowledge that the additional insured has the same rights as the policyholder, who paid the premium. In Philadelphia Indemnity Insurance Company v. SMG Holdings, a California appellate court removes any doubt whether these additional insureds are third-party beneficiaries entitled to the same rights – and bound by the same duties – as the entity that bought the policy. While the dispute at issue in SMG Holdings was a narrow one – i.e., whether the additional insured was bound by the policy’s arbitration clause – the implications of its holding are far ranging in ways that, in some instances, may benefit the additional insured. For example, because the additional insured is an intended beneficiary under the policy, neither the insurer nor the policyholder may do anything to impair the additional insured’s rights under the policy; if they do, they may be liable for tortiously interfering with the additional insured’s contract rights. This means that (again, by way of example) if the insurer attempts to rescind, or cancel, or amend the policy in a way that impairs the additional insured’s rights, the additional insured may have recourse. It also means that if the policyholder does something untoward that jeopardizes the additional insured’s rights under the policy, the policyholder may be liable to the additional insured for any resulting harm. Read the court decision
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Reprinted courtesy of Scott S. Thomas, Payne & Fears
Mr. Thomas may be contacted at sst@paynefears.com

Low Interest Rates Encourages Homeowners to become Landlords

June 18, 2014 — Beverley BevenFlorez-CDJ STAFF
CNN Money reported that more homeowners are deciding to keep their homes rather than sell, and become landlords instead. "Clients tell us all the time, 'We're never going to sell our home, even after we buy a new one,'" Glenn Kelman, CEO of the brokerage, Redfin, told CNN Money. “The math works in most landlords' favor these days,” according to CNN Money. “Rents have risen by about 20% nationwide since mid-2006, the housing bubble peak, while home prices are still about 21% below what they were at that time.” Read the court decision
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Court Upholds Plan to Eliminate Vehicles from Balboa Park Complex

June 10, 2015 — Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In Save Our Heritage Organisation v. City of San Diego, et al. (No. D063992, filed 5/28/15), the California Court of Appeal for the Fourth Appellate District upheld a controversial plan to eliminate vehicles from various plazas in historic Balboa Park. In reaching its decision, the Court of Appeal considered a question of first impression involving the interpretation of San Diego Municipal Code section 126.0504. Balboa Park, designated a National Historic Landmark in 1940, is a large urban park in the center of San Diego. The City of San Diego (“City”) recently approved a proposed plan (“Project”) to eliminate vehicles from the plazas within the Balboa Park complex and to return the plazas to purely pedestrian zones. Subsequently, a community group named Save Our Heritage Organisation (“SOHO”) filed a petition for a writ of mandate alleging, among other things, the City erroneously approved the Project. SOHO contended Municipal Code section 126.0504 mandated two key findings be made before the Project could be approved: (1) that the intended purpose of the property would not be adversely affected; and (2) without the proposed project, the property would not be put to a “reasonable beneficial use.” SOHO argued that although the City made the requisite findings, those findings lacked substantial evidentiary support. The trial court agreed with SOHO and directed the City to rescind the site development permit. The City argued on appeal that Municipal Code section 126.0504 vested it with “discretion to make a qualitative determination of whether an existing use of the property, even if deemed beneficial, is also a reasonable use of that property under all of the facts and circumstances applicable to the particular property in question.” The Court of Appeal agreed and reversed. Reprinted courtesy of Kristen Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Insured's Complaint Against Flood Insurer Survives Motion to Dismiss

May 07, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The insurer's attempt to dismiss the insured's multi-count complaint for failure to provide full coverage for flood damage failed. Ragusa Corp. v. Standard Fire Ins. Co., 2014 U.S. Dist. LEXIS 40812 (D. Conn. March 27, 2014). The insureds' house suffered significant damage due to flood associated with Hurricane Irene. The insureds submitted a claim. Standard Fire paid $35,216.75, well below what the insureds thought they were owed. The insureds returned the check and demanded what they believed was full payment. The insureds demanded an appraisal because the parties did not agree on the amount being paid under the policy, including disagreement about the amount owed for items that both sides agreed were covered under the policy. Standard Fire refused to participate in an appraisal. The insureds ended up suing Standard Fire, alleging, among other things, breach of contract, negligent misrepresentation, and breach of the implied covenant of good faith and fair dealing. 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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