Archives: Construction

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Chapter 2: Ending “Drive-By” Lawsuits Under the ADA

We wrote about the plans to amend the Americans With Disabilities Act on January 31, 2017, to deal with so-called drive-by lawsuits claiming that there are illegal physical barriers to access. Now we have the language in the proposed bill, HR 620. This differs from the bill that was submitted in Congress in 2015 in ways … Continue Reading

Ending “Drive-By” Lawsuits Under the ADA

Businesses are required to comply with the obligations under Title III of the Americans With Disabilities Act (“ADA”)—there cannot be discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation. When a plaintiff prevails in an ADA lawsuit, the court … Continue Reading

Washington Court of Appeals Signals Change in Notice Requirements Under Construction Contracts

Division III acknowledges hairline cracks in Mike M. Johnson rule. “Close enough” only counts in horseshoes and hand grenades, and nowhere is that more true than when Washington courts are interpreting notice and claim procedures in construction contracts. As a result of the Washington State Supreme Court’s 2003 decision in Mike M. Johnson, Inc. v. Spokane … Continue Reading

Isn’t One Trial Enough? Jury Award Reversed and Remanded for Insufficient Evidence of Damages in Construction Contract Claim.

On October 26, 2016, the Oregon Court of Appeals reversed a general judgment and money award in favor of a general contractor because (1) the general contractor had failed to support its claim for damages for bonding and insurance costs with sufficient evidence, and (2) the money award improperly included a contractual markup on costs … Continue Reading

Portland’s Construction Boom

Portland is quickly joining the ranks of American cities with the most significant construction projects. According to a report Friday from the Seattle Times, Portland now ranks seventh in the nation in the number of construction cranes—just behind San Francisco and Chicago, and ahead of larger cities ranging from Denver and Phoenix to Houston and … Continue Reading

Opening the Door to Owner and General Contractor Liability Under Oregon’s Employer Liability Law

General contractors and other employers (even some owners) have greater exposure under Oregon’s Employer Liability Law (the “ELL”) to injured workers based on the recent Oregon Supreme Court decision in Yeatts v. Polygon Northwest Co. The ELL imposes liability on all “owners, contractors or subcontractors and other persons having charge of, or responsibility for,” work … Continue Reading

Not So Fast! Oregon’s New Negligent-Construction Statute of Limitations May Have Insurance Implications

Last Thursday, the Oregon Supreme Court issued its opinion in Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016), holding that the deadline to file a negligent construction-defect claim is two years from the time a plaintiff knew or should have known of damage resulting from the defect—not six years, as applied by the lower … Continue Reading

Portland Commissioner Saltzman Proposes New 1% Construction Excise Tax

Today Portland Commissioner Dan Saltzman, whose bureau assignments include the Portland Housing Bureau and the Bureau of Development Services, proposed a new excise tax on residential and commercial development equal to one percent of the total permit valuation, revenue from which would be dedicated to build and preserve affordable housing. The tax is estimated to raise … Continue Reading

New Property Owners, Beware: Possible Shortened Time to Bring Defective-Construction Claims

The Oregon Supreme Court issued a decision on February 19, 2016, affirming a decision to dismiss a homeowner’s claim against a builder for defective construction. In Shell v. Schollander Companies, Inc., 350 Or 552 (2016), defendant, a builder, began construction on a “spec” home in 1999. When the home was approximately 95 percent complete, plaintiff … Continue Reading

If Your Company Uses Subcontracted Labor, the NLRB May Find You to Be a “Joint Employer”

A new decision by the National Labor Relations Board defining joint employers for the purposes of collective bargaining is a good reminder to employers and contractors to make certain that policies and contracts precisely define who and who is not an employee in other contexts, such as worker’s compensation and tax withholding laws. Under the … Continue Reading

Narrowing the Scope of Subcontractor Indemnity

Owners, developers, and general contractors, beware: the protection afforded by a subcontractor’s responsibility to pay for lawsuits arising from its work (what is known as “indemnity”) might not be as broad as originally thought. A recent Oregon Court of Appeals decision significantly narrows the scope of a subcontractor’s indemnity obligations in construction-defect cases. Under most … Continue Reading

(3 of 3) Time Limitations on Claims Arising From Construction Contracts: Best Practices in Light of Recent Court Rulings

Introduction. As a result of recent Oregon court decisions relating to the statute of limitations and statute of ultimate repose for construction related claims, contractors and developers must adjust their current practices in order to restore some measure of security based on the time limitations on claims. Best Practices. Contractors and developers should now include … Continue Reading

(2 of 3) Time Limitations on Claims Arising From Construction Contracts: Best Practices in Light of Recent Court Rulings

Introduction.  In the past, contractors and developers could feel secure that any claim arising from a construction contract would be barred after ten years from completion of the project. A recent line of Oregon appellate court decisions issued in 2014 cast doubt on that long-standing assumption. Statute of Ultimate Repose (ORS 12.135). ORS 12.135 establishes … Continue Reading

(1 of 3) Time Limitations on Claims Arising From Construction Contracts: Best Practices in Light of Recent Court Rulings

Introduction. In the past, contractors and developers could feel secure that certain claims arising out of construction contracts would be barred after six years from completion of the project. A recent line of Oregon appellate court decisions issued in 2014 cast doubt on that long-standing assumption. Statute of Limitations (ORS 12.080(3)). ORS 12.080(3) establishes a … Continue Reading

Southwest Washington Contractors Association’s Risky Business Seminar Series: Contracts

The Southwest Washington Contractors Association (SWCA) will be presenting the latest in their Risky Business Seminar Series on September 18, 2014, at 1:30 PM at the Vancouver Community Library. The Risky Business Seminar Series is a specialty risk management series designed to arm attendees with the knowledge needed to protect their business. The upcoming seminar … Continue Reading

Minimizing Risk in a Construction Contract: From a Contractor’s Perspective

Based on a survey of case law, several key areas often lead to disputes between owners and contractors on a construction project. Careful drafting of the construction contract can benefit both sides by clearly defining expectations, eliminating ambiguity, and reducing the risk of delay of performance or payment. Click here to read the full article.… Continue Reading

Why You Need More Than Just a Certificate of Insurance

It is common practice for entities such as owners, contractors and design professionals to contractually require another party to provide insurance. The most common method of providing information related to this requirement is through a certificate of insurance. A certificate is usually issued on a form copyrighted by an organization named ACORD (Association for Cooperative … Continue Reading

Loan Guarantors Remain Liable After Foreclosure

In a decision announced this week, Division I of the Washington State Court of Appeals held that a lender who has non judicially foreclosed on a deed of trust securing a commercial loan retains the right under Washington law to thereafter pursue an action for any deficiency against the loan’s guarantor.… Continue Reading

Lender Beware: Make Sure That Your Deed of Trust Covers Latecomer Fees

In a recent Washington State Court of Appeals case, a developer of a residential subdivision built sewer facilities to serve its project, and was entitled to latecomer fees for building more than what it required. Other developers, who received the benefit of the sewer facilities, would be required to pay latecomer fees to reimburse the … Continue Reading

Next Dispute Headed Out of State? Better Check Your Forum-Selection Clause

Large businesses operating in multiple states received the green light to litigate their civil disputes in their home jurisdiction regardless of where the construction project is located. This decision could likewise serve as a serious threat to mom-and-pop subcontractors that provide most of the labor and materials for a project but typically lack any negotiating … Continue Reading

Oregon Department of Transportation Releases Report to Green-Light the I-5 Bridge Replacement Project

On January 7, 2014, the Oregon Department of Transportation released its analysis concluding that tolling a new I-5 bridge would generate enough revenue to finance the construction of that bridge. This positive analysis paves the way for the State of Oregon (without Washington funding) to continue its Columbia River Crossing planning project.… Continue Reading

Washington Supreme Court Announces the Death of Contracts: Donatelli v. D.R. Strong Consulting Engineers, Inc.

OPINION:  In the world of construction, Washington has historically been a “chain of contract” state, in which contracts governed the duties and liabilities of those involved in a project, and parties were generally free to limit by contract both their responsibility and their risk for any purely economic damages. Essentially, if nothing broke and no … Continue Reading