Construction Law Blog
Blog Disclaimer: The content provided on this website is for informational purposes only and is not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information provided is intended for general information which may or may not reflect the most current developments. Read More
A customer shopping at Walmart’s outdoor garden center in Clarkston, Washington, reached down to brush aside a stick covering a price tag for bags of mulch stored on wooden pallets. The “stick” turned out to be a rattlesnake, and bit his hand.
The customer sued Walmart on the legal basis of “premises liability,” claiming that as Walmart’s business invitee (one who enters the owner’s property primarily for the owner’s benefit), the store owed him a duty to warn or guard against hazardous conditions such as the rattlesnake.
Many construction contracts contain a termination clause that allows a contractor to be terminated either for convenience or for cause. Termination for convenience and termination for cause clauses have been discussed previously on the blog here, here, and here. The distinction between a termination for convenience or for cause is an important one.
If a contractor is terminated for convenience, the rights of the party who has terminated the contractor for convenience could be limited in the future. This is specifically true as to any defects in the terminated contractor’s work that are discovered after the termination for convenience.
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured.
Indemnity Clauses That Conflict with Oregon Indemnity Statute Can Remain Partially Valid and Enforceable
When the indemnity provision of a contract conflicts with ORS 30.140, it is voided to the extent that it conflicts with the statute, but no more. Such provisions can remain partially valid and enforceable.[i] In Montara Owner Assn., the owner brought claims against the contractor for construction defects and damage relating to the construction of 35 townhouses. Contractor then brought third-party claims against more than 20 subcontractors for breach of contract and indemnity. Before trial, contractor settled with all but one subcontractor. The subcontract contained an indemnity provision requiring subcontractor to indemnify contractor for losses arising out of subcontractor’s work, including losses caused in part by contractor’s own negligence.
This is the seventh post in our “Top 10 Construction Contract Provisions” series. Prior posts discussed Price and Payment, Liquidated Damages, Consequential Damages – Part I and Part II, Indemnity, Scope of Work, and Flow-Down Provisions.
Today’s topic, Changes and Claims, is a contender for the top spot on our list, for both day-to-day impact on the job and importance in disputes. In fact, these provisions[i] are so variable and are involved in so many reported construction law decisions, that this post will not attempt to survey all their various forms, uses, or potential legal ramifications, but instead focuses on bottom line “best practices”—questions to consider as a general contractor, subcontractor, or owner when drafting, negotiating, or managing the Changes and Claims provisions of a contract. There is no “ideal” here, and the changes and claims procedures should be suited to the project, owner, contractor(s), likely issues, and other project-specific considerations. Key considerations include the following:
The Prompt Payment Act Obligation is Not Triggered When the Owner Holds Less Retention from the General Contractor
Most states have laws known as “prompt payment” statutes which govern the timing of payments on public works projects from project owners to general contractors, and from general contractors to subcontractors. The purpose of these statutes is to ensure that contractors and subcontractors who may have less leverage than the project owners and prime contractors, respectively, are paid for their work on a timely basis.
Oregon Court of Appeals Rules That Negligent Construction (Construction Defect) Claims Are Subject to a Two-Year Statute of Limitations
Statutes of limitations are distinct from statutes of repose. There is a lot of confusion between the two.
Generally, a statute of limitations is a law which sets the maximum period of time which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Most states also employ a “discovery rule,” which provides that the statute of limitations does not “accrue” until such time as the plaintiff knew or should have reasonably known that the injury or property damage has occurred.
Waiving Workers’ Compensation Immunity for Indemnity: Demystifying a Common and Scary-Looking Contract Term
Parties to a construction contract are often skeptical of terms in bold fonts, capital letters, or underlining, and especially terms requiring separate signatures or initials. A natural assumption is that such terms must be harmful if they require such emphasis. This concern is further heightened when the term involves complex areas of law, or waivers of rights that the party may not fully understand. In such cases, a little knowledge can go a long way.
Breach of Implied Warranty Under Attack; Contractor Organizations Urge the Supreme Court Not to Change the Longstanding Law—Review Denied
In June 2006, King County awarded VPFK (Vinci Construction Grands Projects, Parsons RCI, Frontier-Kemper) a Brightwater Project tunneling work contract. The County specified which boring machine (the Slurry Tunnel Boring Machine “STBM” method) was to be utilized in performing the work. During performance, VPFK’s progress was substantially slower than anticipated because the County-specified STBM method was not suitable for the work to be performed under the soil conditions. The STBM ultimately failed, and VPFK’s performance was behind schedule.
Mandatory Attorneys’ Fee Award for Actions Brought Under the Underground Utility Damage Prevention Act
In Washington, RCW 19.122 (the Underground Utility Damage Prevention Act or “Call Before You Dig” statute) provides for the protection of underground utilities. The statute was recently updated in 2013 and provides that homeowners and contractors must call “811” to schedule a “utility locate” prior to commencing any excavation. Failure to do so can result in steep penalties, as well as a mandatory fee award for the prevailing party.