Seattle Washington Building Expert Directory

Alabama “occurrence” and subcontractor work exception to the “your completed work” exclusion

November 18, 2011 — CDCoverage.com

In Town & Country Property, LLC v. Amerisure Ins. Co., No. 1100009 (Ala. Oct. 21, 2010), property owner Town & Country contracted with insured general contractor Jones-Williams for the construction of a car dealership. All of the construction work was performed by Jones-Williams subcontractors. After completion, Town & Country sued Jones-Williams for defective construction. Jones-Williams’ CGL insurer Amerisure defended. The case was tried and a judgment was entered against Jones-Williams in favor of Town & Country. After Amerisure denied any obligation to pay the judgment, Town & Country sued Amerisure in a statutory direct action.

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Reprinted courtesy of CDCoverage.com.

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Guessing as to your Construction Damages is Not the Best Approach

November 18, 2019 — David Adelstein - Florida Construction Legal Updates
Arbitrarily guessing as to your construction damages is NOT the best approach. Sure, experts can be costly. No doubt about it. Having an expert versus guessing as to your construction damages caused by another party’s breach of contract is a no brainer. Engage an expert or, at a minimum, be in a position to competently testify as to your damages caused by another party’s breach of contract. Otherwise, the guessing is not going to get you very far as a concrete subcontractor found out in Patrick Concrete Constructors, Inc. v. Layne Christensen Co., 2018 WL 6528485 (W.D. New York 2018) where the subcontractor could not competently support its delay-related damages or change orders and, equally important, could not support that the damages were proximately caused by the general contractor’s breach of the subcontract. In this case, the concrete subcontractor entered into a subcontract to perform concrete work for a public project. The project was delayed and the general contractor was required to pay liquidated damages to the owner. Not surprisingly, the subcontractor disputed liability for delays and sued the general contractor for all of its delay-related damages “in the form of labor and materials escalation, loss of productivity, procurement and impact costs, field and home office overhead, idle equipment, inability to take on other work, lost profits, and interest.” Patrick Concrete Constructors, 2018 WL at *1. The general contractor moved for summary judgment as to the plaintiff’s delay-related damages – the subcontractor’s damages were nothing but guesses and the subcontractor could not prove the general contractor was the cause of the subcontractor’s damages. 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

Richest NJ Neighborhood Fights Plan for Low-Cost Homes on Toxic Dump

May 28, 2024 — Nacha Cattan - Bloomberg
Josh Bauers has long had his sights set on the town dump in Millburn. Bauers wants to put 75 affordable apartments on the site where piles of Styrofoam and food scraps lie in heaps. But that’s a bridge too far for many residents of New Jersey’s richest ZIP code, Short Hills, where multimillion dollar Tudor and colonial-style mansions are perched atop grassy hillocks less than an hour’s commute from Manhattan. Many in the community, favored by finance types and lawyers, are up in arms over the development’s potential effect on the environment and its highly-rated schools. But the years-long fight to put affordable housing in the town has become about far more than that, and has raised accusations over inequality and race. Millburn Township, whose largest community is Short Hills, may be forced to build on the dump after a state court ruled last month that it will decide where the development will go. The town had agreed to build on the polluted site three years ago, only to backtrack. Read the court decision
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Reprinted courtesy of Nacha Cattan, Bloomberg

MTA’S New Debarment Powers Pose an Existential Risk

July 15, 2019 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.
The normal project and contractual risks faced by contractors, consultants and suppliers to the Metropolitan Transportation Authority are considerable. A new law and regulations mandating that the MTA debar contractors, consultants and suppliers for unexcused schedule and cost overruns creates a new and unfair existential risk. The new law, Public Authorities Law Section 1279-h, slipped into the New York State budget bill and passed without public comment, was enacted on April 12, 2019. Implementing regulations were issued on June 5, 2019, and mandate that the MTA debar contractors (defined to include consultants, vendors and suppliers) if they: (1) fail to achieve substantial completion of their contractual obligations within 10% of the adjusted contract time; or (2) present claims for additional compensation that are denied in an amount that exceeds the total adjusted contract amount by 10% or more.[1] To say that your business and your livelihood are at risk is not an overstatement. The MTA umbrella includes the New York City Transit Authority, MTA Capital Construction, Bridges & Tunnels, Long Island Railroad and Metro North, among others. A debarment by one of these authorities will lead to a debarment by all of them, and then to a debarment by all New York State agencies and authorities,[2] and possibly debarment across state lines. Public and major private owners, as part of their RFP and procurement processes, routinely inquire regarding a bidding contractor’s debarment history. The risk is to new contracts and, because the MTA has decided to give retroactive effect to the law and regulations, to contracts that are already ongoing (even though these risks could not have been considered, priced or agreed to by contractors or their sureties). Reprinted courtesy of Peckar & Abramson, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte Mr. Charney may be contacted at scharney@pecklaw.com Mr. Chertoff may be contacted at gchertoff@pecklaw.com Mr. Monte may be contacted at pmonte@pecklaw.com Read the court decision
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Wisconsin Court Applies the Economic Loss Doctrine to Bar Negligence Claims for Purely Economic Losses

August 17, 2020 — Rahul Gogineni - The Subrogation Strategist
In Mech. Inc. v. Venture Elec. Contrs., Inc., No. 2018AP2380, 2020 Wisc. App. LEXIS 170, the Court of Appeals of Wisconsin, District Two, considered whether a party may bring a negligence claim for purely economic damages. In upholding the lower court, the appellate court found that a party is barred by the Economic Loss Doctrine from bringing a negligence claim for purely economic damages. Both parties involved in this action were subcontractors on a building project at the Great Lakes Research Facility for the University of Wisconsin-Milwaukee. As a result of Venture Electrical Contractors, Inc. (Venture) not paying for requested work, Mechanical, Inc. (Mechanical) sued Venture for $11,961.31. Venture, in turn, countersued in negligence for $1.1 million for costs incurred due to delays and untimely performance. Mechanical sought dismissal of the negligence claim based upon the Economic Loss Doctrine. Finding that the Economic Loss Doctrine applies to purely economic losses, the trial court dismissed Venture’s negligence claim. Venture appealed to the Court of Appeals of Wisconsin. Read the court decision
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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

California Builders’ Right To Repair Is Alive

March 19, 2014 — David J. Byassee - Ulich & Terry LLP
The California Supreme Court surprised everyone on December 11, 2013 when it denied Brookfield Homes’ request for review of the ruling in the case of Liberty Mutual Ins. Co. v. Brookfield Crystal Cove, LLC (2014) 219 Cal.App.4th 98, which was decided by the Court of Appeal for the Fourth Appellate District Division Three (Orange County). In that case the Court of Appeal held that the Right to Repair Act aka SB800 is not the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage. Under the ruling, homeowners may choose to sue builders under common law theories of liability such as strict liability and negligence, in addition to liability under the Act. This ruling made homeowners' compliance with the prelitigation requirements of the Act optional and thereby put builders' “right to repair” in jeopardy. The ruling undermined the expectations of California's homebuilders who, for the past decade, understood that their liability is limited by the Act and that they have a right to repair. Since the Liberty Mutual case was handed down, the topic has become a hotbed item with several divisions of the Court of Appeal. On February 19, 2014, the Court of Appeal for the Second Appellate District Division Three (Los Angeles County) issued a ruling against Premier Homes in the case of Burch v. Superior Court 2014 Cal.App.LEXIS 159 that, without independent analysis, simply adopted the holding in the Liberty Mutual case. But on February 21, 2014, the Court of Appeal for the Second Appellate District Division Four (Los Angeles County) ruled in the case of KB Home Greater Los Angeles, Inc. v.Superior Court 2014 Cal.App.LEXIS 167 that a homeowner's failure to give the builder an opportunity to inspect and repair a construction defect excused the builder's liability under the Act. Additionally, the Court of Appeal went out of its way to state it had ruled earlier in that case that the Act is the exclusive remedy. The various rulings lay a foundation for ultimate intervention by the California Supreme Court. In the meantime, these opposing cases will be cited by counsel for homeowners and builders alike for opposing positions as they continue to navigate construction defect disputes. Mr. Byassee is a strategic litigator specializing in representation of builders and developers. For more information regarding dispute resolution procedures under SB800, Mr. Byassee may be contacted at (949) 250-9797 or by email at dbyassee@ut-law.com. Published courtesy of David J. Byassee, Ulich & Terry LLP Read the court decision
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New York Assembly Reconsiders ‘Bad Faith’ Bill

May 17, 2021 — Copernicus T. Gaza, Adam Krauss, Robert S. Nobel, Craig Rokuson & Eric D. Suben - Traub Lieberman
The New York State Assembly is considering A07285, which creates a private right of action for bad faith “if the insurer unreasonably refuses to pay or unreasonably delays payment without substantial justification.” The bill was first introduced in 2013 but was reintroduced on May 3, 2021 and has received some recent attention. According to the bill, an insurer acts unreasonably when it (among other things):

Fails to provide the claimant with accurate information regarding policy provisions relating to the coverage at issue; or
Fails to effectuate in good faith a prompt, fair, and equitable settlement of a claim or portion of a claim and where the insurer failed to reasonably accord at least equal or more favorable consideration to its insured's interests as it did to its own interests, and thereby exposed the insured to a judgment in excess of the policy limits or caused other damage to a claimant; or
Fails to provide a timely written denial of a claimant's claim, or portion thereof, with a full and complete explanation of such denial, including references to specific policy provisions wherever possible; or

Reprinted courtesy of Copernicus T. Gaza, Traub Lieberman, Adam Krauss, Traub Lieberman, Robert S. Nobel, Traub Lieberman, Craig Rokuson, Traub Lieberman and Eric D. Suben, Traub Lieberman Mr. Gaza may be contacted at cgaza@tlsslaw.com Mr. Krauss may be contacted at akrauss@tlsslaw.com Mr. Nobel may be contacted at rnobel@tlsslaw.com Mr. Rokuson may be contacted at crokuson@tlsslaw.com Mr Suben may be contacted at esuben@tlsslaw.com Read the court decision
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Antidiscrimination Clause Required in Public Works and Goods and Services Contracts –Effective January 1, 2024

January 22, 2024 — Travis Colburn - Ahlers Cressman & Sleight
In July 2023, the Washington legislature passed Senate Bill 5186, which mandates inclusion of select antidiscrimination clauses in every state contract and subcontract for public works, goods, or services executed after January 1, 2024.[i] RCW 49.60.530(3) codifies the now-required antidiscrimination clauses, which prohibit four categories of discrimination against any person because of age, sex, marital status, sexual orientation, gender identity, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability (the “Protected Class”). Under the new law, public contractors and subcontractors (“Public Contractor”) may not refuse to hire a person because that person is a member of the Protected Class, unless that refusal is based upon a bona fide occupational qualification or if a person with a particular disability would be prevented from properly performing the particular work involved.[ii] Similarly, Public Contractors may not discharge or bar a person from employment or discriminate against any person – either in terms of compensation or other terms and conditions of employment – because that person is a member of the Protected Class.[iii] Last, Public Contractors may not print or circulate (or cause to be printed or circulated) any statement, advertisement, publication, form of application for employment, or make inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to the Protected Class.[iv] Read the court decision
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Reprinted courtesy of Travis Colburn, Ahlers Cressman & Sleight
Mr. Colburn may be contacted at travis.colburn@acslawyers.com

SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES