Washington Construction Law Blog

Under the late tender rule in Washington, an insurance company must prove it was substantially prejudiced by late notice before its obligations to the insured are excused. 

This construction defect case applies the late tender rule to a dispute between carriers.  The case arose from a condo defect case where the insured had three carriers.  Two carriers settled with the insured, received an assignment of the insured's claims against non-settling entities and then brought a contribution action against the third carrier.

Division 1 held that two settling carriers now stood in the shoes of the insured and were thereby protected by the late tender rule.  The trial court, by contrast, had held  that the insured's selective choice not to tender the suit to the third carrier in itself barred the contribution claim by the other two carriers.

How far do the prevailing wage rules go when a government entity teams up with a private developer to build a public/private project?  It's a question on the minds of many developers.  Under this Oregon ruling, the prevailing wage rules stop where the public part of the money stops -- here, the construction of a hotel with private funds was exempt from prevailing wage rules even though the hotel was built on the same block and by the same contractor as the public component (a convention center).

The paltry $12,000 bond required under the current Contractor Registration Act would be increased to $75,000 for contractors with gross revenue of more than $7.5 million and to $50,000 for contractors with gross revenue of $2 million or more under this new proposed Senate bill.

Two bills recently introduced in Olympia would, if enacted, radically change the legal landscape in Washington for claims made against residential builders & architects arising from alleged defects.  The two bills are as follows:

1. Tort Claims for Defective Work.  This Senate bill would authorize a homeowner to bring a new cause of action in tort against any participant in designing or building -- architect, GC, subs, etc -- regardless of privity of contract (effectively abrogating the economic loss doctrine in the residential context).  The tort claim itself would be based on violations of new, state-wide mandatory quality standards for water intrusion & envelope design, structural design, fire protection and other areas identified in the bill.  The claim could be made at any time within 4 years of discovery of the defect (subject to the statute of repose limit, presumably).
2. Warranty Bill of Rights.  This Senate bill would create a state-wide, nonwaivable tier of warranties for new home construction (including substantial remodels), including (a) a 2 year warranty against defects in workmanship and materials, (b) a 3 year warranty for various specific trade work such as electrical and plumbing, (c) a 5 year water penetration warranty and (d) a 10 year structural warranty.  Currently, outside the condo context, the only warranty in Washington relating to home construction is the narrow implied warranty of habitability.

Under the Contractor Registration Act (CRA), a builder cannot sue a client to recover compensation if the builder is not properly registered.  RCW 18.27.080.  In this case, an unpaid landscaper seeking to sue its client argued it wasn't a contractor as the term is used in the CRA. 

The court said the landscaper was a contractor and, having not been registered, wasn't allowed to sue the client for compensation.  The decision hinges on a reading of the "contractor" definition in RCW 18.27.010(1).

The AGC-sponsored effort to overturn Mike Johnson is back in the hopper in Olympia.  Third time's a charm???

So Seattle has two of America's favorite 150 structures according to an AIA poll -- the new downtown Public Library (#108) and Safeco Field (# 135).  Hey -- what about the Viaduct or the Space Needle?  Bridges & roadways must not have been included in the survey because the most sublime structure in our country -- the Golden Gate Bridge -- is sadly absent from the list.

Safeco Field is edged out by Wrigley Field (# 31), Yankee Stadium (# 84), Giants Stadium (# 104) , Fenway Park (# 113) and Camden Yards (# 122).

The Legislature is considering a new bidder responsibility statute which, if passed in its current form, would:

• Impose four mandatory "responsibility criteria" on contractors who seek to bid on competitively bid public works.   Only one of the four criteria -- that bidder not have been disqualified under RCW 39.06 [ failure to maintain proper license ] or RCW 39.12 [ repeat violations of prevailing wage law ] -- appears substantive.  The other three --(1) proof of current registration under RCW 18.27 (2) a current unified business identified number, and (3) workers comp coverage for bidder's employees -- are more routine.
• Allow public owners to impose "supplemental criteria" in the bid invitation to further define responsibility.
• Provide a mechanism for bidders to request pre-bid changes in the supplemental criteria, and
• Create a right of appeal from any determination of non-responsibility.

The mandatory criteria would also apply to subcontractors at every tier.

Why is the Viaduct tunnel option looking more and more like the Seattle Monorail project, whose death knell was unrealistic funding wrapped in shiny idealism?  This story is disturbing.

This case revolved around a claim that tile installed in a project lacked the color uniformity required by industry custom.  To prove lack of uniformity, the plaintiff offered -- and the trial court allowed -- an expert report submitted on the eve of trial under ER 904(6), which governs the admissibility of routine documentary records such as hospital bills. 

Finding error, the Court of Appeals said what the text of ER 904(6) itself seems to imply -- that its purpose is to streamline the admission of routine documents, not open the door to late expert reports.  Copy of opinion also available here Download file