Construction Law Blog

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Breach of Implied Warranty Under Attack; Contractor Organizations Urge the Supreme Court Not to Change the Longstanding Law—Review Denied

Date: September 8, 2016  /  Author: John P. Ahlers and Ceslie A. Blass  /  Categories: Out of the Ordinary, Construction Bidding, Contracting, Construction News and Notes, Rants and Raves, Damages, Claims  /  Keywords: Breach of Implied Warranty Under Attack 1  /  Comments (0)

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

Date: August 31, 2016  /  Author: Lindsay K. Taft  /  Categories: Construction News and Notes, Rants and Raves, Recent Legislation, Damages, Claims  /  Keywords: Mandatory Attorneys’ Fee Award for Actions Brought Under the Underground Utility Damage Prevention Act 2  /  Comments (0)

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.

Practical Advice: Indemnification and Additional Insured Issues Revisited

Date: August 24, 2016  /  Author: John P. Ahlers  /  Categories: Contracting, Construction News and Notes, Indemnity, Claims  /  Keywords: Practical Advice: Indemnification and Additional Insured Issues Revisited 3  /  Comments (0)

Lawyers love writing about indemnification.  There are seventeen blog articles on our website alone that deal with the subject.  Before you click out of this email in disgust that we are rehashing a stale topic, this post contains some practical advice for contractors and subcontractors dealing with the perplexing issues of indemnification and additional insured provisions.

Two Firm Members Among the “Best Lawyers in America”

Date: August 17, 2016  /  Author: A&C Crew  /  Categories: Construction News and Notes  /  Keywords: Two Firm Members Among the “Best Lawyers in America” 4  /  Comments (0)

We are excited to announce that John P. Ahlers has been selected as a “Lawyer of the Year” in Construction Law, and John P. Ahlers and Paul R. Cressman, Jr. have been selected as “Best Lawyers in America” in Construction Litigation by Best Lawyers for 2017.  Best Lawyers has recognized Mr. Ahlers and Mr. Cressman as “Best Lawyers in America” since 2007 and 2013, respectively.

Unpaid Subcontractor Walks Off the Job and Wins

Date: August 10, 2016  /  Author: John P. Ahlers  /  Categories: Contracting, Construction News and Notes  /  Keywords: Unpaid Subcontractor 5  /  Comments (0)

Make the following inquiry of your constructional lawyer, watch him/her sit up in his/her chair and give your question immediate attention: “I haven’t been paid, can I walk off the job?”  The answer to this question is a strong “maybe, but it’s risky.”  Walking off the project has a significant downside.  The risk is that the judge who reviews your decision, sometimes years after the event, may not agree that the non-payment was a material breach and, thus, suspension of performance (walking off) is not justified.

SBA Eases Joint Venture Rules for Disadvantaged Businesses (Small Businesses) on Federal Contracts

Date: August 3, 2016  /  Author: John P. Ahlers  /  Categories: Government Contracts, Regulatory Administration, Construction News and Notes, Recent Legislation  /  Comments (0)

Companies that do not themselves qualify for federal preferences as small, disadvantaged businesses can help in joint ventures with other qualified companies and enjoy many of the benefits these programs offer.

Federal agencies annually reserve over $12 billion in federal contracting opportunities for award to “8(a)” companies, which are businesses that have successfully applied for determination of being socially and economically disadvantaged under Section 8(a) of the Small Business Administration (“SBA”) Act.  In addition, other categories of disadvantaged, small businesses, such as companies owned and controlled by service-disabled veterans, qualify for a growing allotment of set aside contracts and other preferences.

The Job is Substantially Complete, the Subcontract was Never Signed, the Subcontractor Wants to be Paid—Now What?

Date: July 13, 2016  /  Author: John P. Ahlers  /  Categories: Contracting, Construction News and Notes, Claims  /  Comments (0)

A recent case in North Carolina illustrates the types of problems created when a general contractor accepts a subcontractor’s bid and then allows the subcontractor to perform the work without obtaining a signed subcontract.[1]  In this case, the general contractor (Choate Construction Company – “Choate”) accepted a bid from a foundation subcontractor (Southeast Caissons, LLC – “SEC”).  Choate sent the subcontract to SEC.  SEC provided its changes in a “Proposed Addendum” to the subcontract stating, “[SEC] hereby accepts the terms of the attached Subcontract, subject to and conditioned upon Choate[’s] acceptance of the terms set forth in this Addendum[.]”  After that, Choate called SEC and exchanged emails concerning the subcontract terms, but did not reach an agreement.  SEC then performed its subcontract and sought payment, and acknowledged it had not signed the subcontract.  Choate agreed it owed SEC something, but refused to pay because SEC did not have a signed subcontract, asserting the subcontract was not binding on Choate.

 

Neighbor Allowed to Remove Tree Roots on Her Property That Supported Adjoining Landowners’ Two Large Trees With Legal Immunity

Date: July 6, 2016  /  Author: Paul R. Cressman, Jr.  /  Categories: Out of the Ordinary, Construction News and Notes  /  Comments (0)

A recent Washington Court of Appeals opinion addressed the rights of a neighbor to destroy roots and branches on her property that belonged to trees located on an adjoining landowner’s property.[1]

[1] Mustoe v. Ma, 193 Wn. App. 161, 371 P.3d 544 (Div. 1, April 4, 2016).

Nine Firm Members Recognized as Super Lawyers and Rising Stars

Date: July 1, 2016  /  Author: A&C Crew  /  Categories: Out of the Ordinary  /  Comments (0)

Ahlers & Cressman PLLC attorneys have again been recognized as “Super Lawyers” and “Rising Stars” (attorneys under 40 years of age, or practicing under 10 years) in Washington for 2016.

Six Ahlers & Cressman attorneys were recognized as Super Lawyers:  John P. Ahlers, Paul R. Cressman, Jr., Scott R. Sleight, Bruce A. Cohen, Lawrence S. Glosser, and Brett M. Hill.  Additionally, three of the firm’s attorneys have been recognized as Rising Stars:  Ryan W. Sternoff, James R. Lynch, and Lindsay K. Taft.

U.S. Department of Labor – New Overtime Rule

Date: June 29, 2016  /  Author: Erin M. Stines  /  Categories: Construction News and Notes, Recent Legislation, Employment  /  Comments (0)

On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the new federal overtime rule under the Fair Labor Standards Act (“FLSA”).  As a result of the new rule, over 4,000,000 workers will become entitled to overtime pay when they work extra hours.  The rule becomes effective December 1, 2016.

The rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative, and Professional workers to be exempt, and changes the salary level that must be met before an employee can be exempt from overtime.  The new minimum salary threshold will increase to $913 per week, $47,476 annually, and will apply to nearly all employees — an employee paid less than this threshold amount will be guaranteed overtime pay.  The new federal threshold of $47,476 annually is more than double the current threshold of $23,660 annually ($455 a week), which has been in place since 2004.