Construction Law Blog

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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

Date: December 22, 2016  /  Author: Masaki J. Yamada  /  Categories: Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Construction Defect, Claims  /  Keywords: Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage 1  /  Comments (0)

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.

Section 8(a) of Small Business Act Favoring Small, Disadvantaged Businesses Upheld Under Equal Protection Clause

Date: December 14, 2016  /  Author: Matt T. Paxton  /  Categories: MBE/DBE/WBE, Out of the Ordinary, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves  /  Keywords: Disadvantaged Businesses Upheld Under Equal Protection Clause, 2 Section 8(a) of Small Business Act Favoring Small 3  /  Comments (0)

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires that public bodies and institutions treat similarly-situated individuals in a similar manner.  The government, therefore, cannot apply a law dissimilarly to people who are similarly situated.  For example, in the mid-1970s, the Medical School of the University of California Davis (a public university) reserved 16 of 100 spaces in its class for “disadvantaged” students.[i]  In the seminal case of Regents of Univ. of California v. Bakke, the U.S. Supreme Court ruled that racial preference was unconstitutional under the Equal Protection Clause because an applicant’s race was an explicit factor in determining disadvantage.  In other contexts, however, the U.S. Supreme Court has found that “mere awareness of race in attempting to solve the problems facing [minority groups] does not doom that endeavor at the outset.”[ii]

Courts Take Another Swipe at the Implied Warranty of the Plans and Specifications

Date: December 8, 2016  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Construction Defect  /  Keywords: Courts Take Another Swipe at the Implied Warranty of the Plans and Specifications 4  /  Comments (0)

Implied warranties are warranties created by law, legislation, or courts.  In the construction industry, one of the most prominent implied warranties is that owners who provide plans and specifications to their contractors impliedly warrant the adequacy of their plans and specifications.[i]  That implied warranty had its beginning in the 1918 US Supreme Court decision of U.S. v. Spearin[ii] and is, therefore, popularly known as the Spearin Doctrine.  Under the Spearin Doctrine, if the contractor completes the work in accordance with the owner’s plans and specifications, but there is a deficiency or failure, the owner, not the contractor, is responsible.  When the owner breaches its implied warranty, in most instances, the contractor is entitled to additional compensation for extra work performed, delays experienced, and other additional expense or loss occasioned by the warranty breach.  A recent case demonstrates that this implied warranty is not “immunity.”  The contractor must still act reasonably and diligently, particularly when the contract provisions so require.

Indemnity Clauses That Conflict with Oregon Indemnity Statute Can Remain Partially Valid and Enforceable

Date: November 30, 2016  /  Author: Masaki James Yamada  /  Categories: Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Indemnity, Damages, Construction Defect, Claims  /  Keywords: Indemnity Clauses That Conflict with Oregon Indemnity Statute Can Remain Partially Valid and Enforceable 5  /  Comments (0)

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.

GAO Sustains Unsupported Past Performance Evaluation and Unequal Discussion Bid Protest

Date: November 16, 2016  /  Author: Lindsay K. Taft  /  Categories: Government Contracts, Construction Bidding, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves  /  Keywords: GAO Sustains Unsupported Past Performance Evaluation and Unequal Discussion Bid Protest 6  /  Comments (0)

Rotech Healthcare, Inc., a healthcare contractor, recently successfully protested the award of a home oxygen and durable medical equipment contract by the Department of Veterans Affairs to Lincare, Inc. based on an unsupported past performance evaluation and allegations of an unequal discussion.  See GAO Protest File Number:  File:  B-413024 (August 17, 2016).  The Request for Proposals (“RFP”) provided that award would be made on a “best value” basis to the offeror whose proposal was most favorable to the government based on the following evaluation factors with the following possible ratings:

 

  • Joint Commission Accreditation (Acceptable or Unacceptable)
  • Region of Service (Acceptable or Unacceptable)
  • Past Performance (Excellent, Good, Satisfactory, Unsatisfactory, or Neutral)
  • Technical Capability (Excellent, Good, Satisfactory, Unsatisfactory)
  • Price

General Contractor’s Intentionally False Certifications Bar It From Any Recovery From Owner

Date: November 3, 2016  /  Author: Masaki James Yamada  /  Categories: Government Contracts, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Employment  /  Keywords: General Contractor’s Intentionally False Certifications Bar It From Any Recovery From Owner 7  /  Comments (0)

In a public works dispute in Massachusetts, a Massachusetts Court judge ruled that a general contractor could not recover any of its over $14 million claim against a public owner because it had violated its contract with the Owner by certifying that it had paid its subcontractors in full and on time when in fact it had not.[i]  The case involves a contract dispute arising from a state and federally-funded project to design and construct a fiber optic network in western Massachusetts.  The Owner was a state development agency established and organized to receive both state and federal funding to build a 1,200–mile fiber optic network known as MassBroadband123 in Western Massachusetts (the Project).  Of that amount, $45.4 million was awarded pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA).  One of the stated goals of ARRA was (as its title suggests) to create jobs in the wake of the 2008 recession and to provide a direct financial boost to those impacted by the economic crisis.  In the context of the instant case, that meant that, if there were to be subcontractors on the job providing labor and materials, they needed to be paid on a timely basis in keeping with the statutory purpose of stimulating the economy.

Top 10 Construction Contract Provisions – Changes and Claims

Date: October 26, 2016  /  Author: James R. Lynch  /  Categories: Contracting, Construction News and Notes, Rants and Raves, Claims, Change Orders  /  Keywords: Top 10 Construction Contract Provisions – Changes and Claims 8  /  Comments (0)

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

Date: October 20, 2016  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Government Contracts, Alternative Dispute Resolution (ADR), Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Claims  /  Keywords: The Prompt Payment Act Obligation is Not Triggered When the Owner Holds Less Retention from the General Contractor 9  /  Comments (0)

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

Date: October 13, 2016  /  Author: John P. Ahlers  /  Categories: Construction News and Notes, Rants and Raves, Construction Defect, Claims  /  Comments (0)

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.

Defend Trade Secret Act of 2016–-Federalizing Trade Secret Law

Date: October 5, 2016  /  Author: Erin M. Stines and Reed Cahill  /  Categories: Out of the Ordinary, Construction News and Notes, Rants and Raves, Recent Legislation, Employment  /  Comments (0)

The Defend Trade Secret Act of 2016 (DTSA) was signed into law on May 11, 2016, and became effective immediately. The DTSA allows an owner of a trade secret to sue in federal court for trade secret misappropriation. Previously, only state law governed civil misappropriation of trade secrets. While the DTSA largely mirrors the current state of the law under the Uniform Trade Secrets Act (UTSA), adopted by 48 states, including Washington, there are some additions found in the new law.