Panel Discussion: The Opioid Epidemic & The Building Industry

We would like to inform those of you in the Oregon/SWWA building industry about a special panel discussion being hosted by the Daily Journal of Commerce on Thursday, August 24, 2017. The presentation is titled “The Opioid Epidemic & The Building Industry,” and the panel will include Miller Nash Graham & Dunn partner P.K. Runkles-Pearson, Cal Beyer of Lakeside Industries, Dr. Rachel Solotaroff of Central City Concern, and Mark Altenhofen of Oregon Pain Advisors. The panel will discuss the opioid epidemic, how it’s affecting the building industry, and what business leaders can do to mitigate it. For more information, visit the DJC website.

Washington Employees Can Waive Their Meal Breaks

This article was originally published as one of Miller Nash Graham & Dunn’s News You Can Use e-flashes, our occasional e-mail newsletter focusing on the latest developments in employment law and labor relations. From The Ground Up editor George Kaai felt that this information would be useful to those in the development industry. If you are interested in receiving periodic employment law updates, please notify us at

Yes, nonexempt employees in Washington may voluntarily waive their right to take a 30-minute unpaid meal break.

It has been an open question whether employees could waive their 30-minute meal break mandated by state regulations. The Washington Department of Labor & Industries (“DLI”) previously provided a guidance stating that meal breaks could be waived, but that interpretation appeared to conflict with the mandatory language of the regulation. Until recently, we did not have court approval of DLI’s guidance.

That uncertain situation changed on June 29, 2017, when the Washington Supreme Court issued its decision in Brady v. AutoZone, articulating two key holdings. First, the Court held that employers are not strictly liable for damages if an employee does not actually take a meal break that complies with all the requirements of the regulation. Second, the Court held that if an employee submitted evidence that he did not take a regulation-compliant meal break, the burden shifted to the employer to prove that either the employee had taken the break or had voluntarily waived his right to take the break as required by the regulation.

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Succession Planning Strategies for West Coast Apartment Owners [VIDEO]

Miller Nash Graham & Dunn partner June Wiyrick Flores gave a special presentation for HFO Investment Real Estate, discussing estate planning and taxes, highlighting real estate and succession planning for the group. Watch the video of the full presentation below.


Ninth Circuit Opens the Door, IRS Slams It Shut (an update to IRS: “Shea It Ain’t So!” The Ninth Circuit Opens the Door for Real Estate Developer to Defer Income Tax)

On April 7, 2017, the IRS issued Action on Decision 2017-03, confirming that the IRS would not follow the Ninth Circuit’s ruling in Shea Homes, Inc. v. Commissioner, 834 F.3d 1061 (9th Cir. 2016). The Ninth Circuit’s decision in Shea Homes was widely perceived as a significant, albeit narrow, win for taxpayers engaged in real estate development. More on the ruling in Shea Homes can be found from a recent blog post here. Continue Reading

Washington Subcontractors Can Seek Bond for Early Release of Retainage

Governor Jay Inslee recently signed into law Washington House Bill 1538 which authorizes subcontractors on public projects to request the prime contractor submit to the public owner a bond to release its portion of the retainage before the public project is complete. The bond needs to be in a form acceptable to the public body and it can only be rejected for “good cause.” This retainage bond should serve to relieve the cash flow burden on subcontractors that have finished their scope of work but cannot get paid in full until the project is completed. The law goes into effect July 23, 2017.

Hidden Hazards: Oregon Proposes New Burdens on Charities Seeking Property Tax Exemption

Oregon has a long tradition of narrowing the scope of the property tax exemption afforded to charities operating in the state. This tradition is alive and well in 2017, as the Oregon legislature contemplates imposing an annual reporting requirement on all charities holding or seeking a property tax exemption on their real or personal property. Under the proposed legislation (Senate Bill 181), charities that fail to make the required annual report would lose their tax-exempt status and would be required to repay all property taxes retroactively.  Continue Reading

Important Policyholder Win in the Oregon Court of Appeals: Contractors—This Is Good News

On May 10, 2017, the Oregon Court of Appeals made several significant holdings in the appeal of an insurance policy garnishment proceeding. The court of appeals held that a liability insurer’s exclusion for multi-unit new residential construction was ambiguous and, when construed against the insurer, did not apply to defeat coverage for construction-defect claims in a mixed-use development. The result was especially gratifying because the insurer had refused to defend its subcontractor insured, against which a default judgment had been entered. The court of appeals also held that attorney fees awarded to an indemnitee for defending a construction-defect claim were covered by a liability insurance policy, either as damages or as costs taxed against the insured. Finally, the court of appeals held that a party is entitled to a jury trial on factual issues in an insurance policy garnishment proceeding and that an Oregon statute allowing a bench trial is unconstitutional. Continue Reading

A Light in the Darkness: The “Small Business Know-Before-You-Bid Construction Transparency Act of 2017”

Federal government contracting comes with a myriad of challenges, not the least of which are sometimes opaque procedures for getting paid (or taking action if you’re not getting paid). A bill has just been introduced in the House of Representatives that would help simplify that process, especially for smaller contractors. The legislation, H.R. 2350, the “Small Business Know-Before-You-Bid Construction Transparency Act of 2017,” would require a federal agency to: Continue Reading

Environmental Groups Seek to Kill “Zombie Permits”

Environmental groups recently sued the Oregon Department of Environmental Quality (“DEQ”) over its alleged failure to renew permits in a timely manner. Most permits issued by DEQ under the Clean Water Act have an initial term of five years. According to the complaint, at least 75 percent of all such permits in Oregon have exceeded their five-year term. Instead of renewing the permits, DEQ has been “administratively continuing” them. The petitioners allege that some of the permits have been continued for more than two decades (called “zombie permits” by the petitioners).

This is a concern for the environmental groups because DEQ continually updates its water quality standards and its list of impaired water bodies. Permits that are administratively continued instead of being renewed do not take these changed circumstances into account. Continue Reading

BEWARE—The Pollution Exclusion Is Alive in Oregon

This article was originally posted on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance coverage blog.

Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a liability insurance policy. As a result, an insured contractor had no coverage for its faulty work.

In Colony Ins. Co. v. Victory Constr. LLC, U.S. District Court, Oregon, Case No. 3:16-cv-00457-HZ, Colony Insurance sought a declaratory judgment that it had no duty to defend and indemnify Victory Construction in two state court personal-injury lawsuits. The defendant, Victory, installed a pool and was alleged to have been negligent in the installation and ventilation of a gas heater, resulting in the escape of carbon monoxide into a home, causing the residents to be sick. Victory was insured by Colony, which denied coverage for the residents’ ensuing claims. Colony’s Commercial General Liability Insurance Policy contained a Hazardous Materials Exclusion, i.e., a pollution exclusion. The policy defined “hazardous materials” as: “‘pollutants’, lead, asbestos, silica and materials containing them.” The definition of “pollutants” included “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The court concluded that because carbon monoxide clearly fell within the definition of a pollutant, there was no coverage. Continue Reading