Washington Construction Law Blog

Legislation to overturn the Mike Johnson decision, sponsored by the AGC, was officially withdrawn yesterday.  Third time not a charm after all...

More than a year after oral argument, the Supreme Court today finally decided the SeaTac Third Runway prevailing wage case known as Silverstreak.   Background on the case is available here. 

By a 6-3 vote, the Court held that truck drivers who merely dump fill onto an embankment -- but who don't otherwise spread, level or roll the material -- are nonetheless entitled to be paid the prevailing wage rates. 

The Court suggested that prevailing wages would not apply, however, if the truck drivers merely dumped the fill in a central stockpile located on site.

The Court's liberal interpretation of the scope of the prevailing wage statute, driven largely by the Court's deference to L&I policy judgment, must be carefully reviewed by material suppliers and general contractors who rely on quotes from material suppliers.  (The suppliers in Silverstreak only dodged the bullet here because of the Court, on unusual facts, held that L&I was estopped from enforcing the broad reach of the statute in this particular case because the suppliers had relied on prior administrative letters from L&I stating that the wage rates would not apply to end-dump truck drivers)

Copy of lead opinion also available here Download file

Cost escalation, labor shortages, market volatility -- welcome to the brave new world of today's hot construction market.  We recently prepared a legal guide to risk allocation of such market factors and a copy can be accessed here Download file

Based on the current headlines, these resource risks are taking a significant toll on both the King County Brightwater project as well as the massive new interstate project from Spokane to the Canadian border. 

This exhaustive opinion will tell you everything you need to know about complying with WISHA's fall restraint regulations.   The case arose from violations committed by a roofing contractor.

The decision can also be accessed here Download file

Substantially revamped bill to overturn the Mike Johnson case easily passes in the House and moves on to the Senate.  Summary of recent changes described here.

When is a crane operator hired by a GC to run a crane mounted on a derrick barge for a project to rehabilitate a cruise line terminal actually a "seaman" protected by the federal Jones Act? 

Traylor Brothers found out in this 9th Circuit case that the answer is "it depends."  The Court reversed summary judgment for Traylor & remanded for a trial on the merits, holding the crane operator was entitled to have the jury decide the issue.  Under the Jones Act, a "seaman" is permitted to sue in tort for damages and is not limited to recovery of workers comp benefits.

This case illustrates what a friend calls the "black cloud" theory of construction litigation -- certain projects seem cursed from the get-go and invariably plunge into dispute and disarray.  Nothing seems to go right.

Nominally, this case is about whether to vacate an arbitration award rendered in favor of Sellen arising from a tenant improvement project.  As is often the case, this challenge to the award failed to meet the stringent test in RCW 7.04. 

The path to conflict in this case included the following mis-steps and misdeeds:

1. Sellen's project manager forged the company president's signature on the construction contract.
2. The same project manager was charged with felony theft for transferring costs to other Sellen projects to make it look as if this project was on budget.
3. Neither Sellen nor the owner adhered to the contract's change provisions, leading the Arbitrator to find the parties had abandoned the contract.

The only interesting legal nugget in this mess is the Court's holding that, even though the PM forged the contract, Sellen had effectively ratified the contract by performance and therefore the arbitration clause in the contract was enforceable.

A hefty dose of lawyer jokes for your amusement -- not really related to construction but received from a friend in the industry.  Close enough.   Download file

Today's economic loss decision from the Supreme Court is significant. 

As readers of this site know, the economic loss doctrine states that a plaintiff may not sue in tort for recovery of purely economic losses (rather than personal injury or property damage).  Instead the plaintiff is limited to whatever remedies might be available under the written contract between the parties.  The purpose of the doctrine is to induce parties to pay attention to what they sign -- and if they don't like the contract as is, negotiate additional provisions to make the contract acceptable.  Freedom of contract, in other words.

But what happens when a contract exists but doesn't speak to the issue of who is liable for what -- or even what the standard of care should be?  What if the contract is instead silent in key issues such as whether a warranty exists or whether the builder is required to install the work per approved plans and specifications?  In such a case, can the plaintiff resort back to tort law because the contract contains no governing clauses?

As we predicted back in October, the answer is no.  The Court's message in the industry seems pretty clear: if you want something from the other party, put it in the contract.  Don't ask the courts to make new remedies under tort law for purely economic loss.  And by the way, while the Supreme Court goes out of its way to stress that residential homeowners are also covered by this rule, the pending legislation summarized on this site on February 20th would abrogate the doctrine for residential buyers.