Washington Construction Law Blog

Here, a jury rejected a condo developer's case against its property insurer (Safeco) for decay to the structure due to rainwater infiltration caused by poor construction & Division One affirmed because:

• The ultimate loss -- decay to the building -- was an excluded loss, and therefore the ensuing loss doctrine did not apply.
• The "collapse" provision of the policy -- which the Court held to mean there's coverage for any "substantial impairment of structural integrity" -- did not apply because the jury elected to believe Safeco's experts rather than the Owner's experts on the nature & severity of the decay, and
• There was no reversible error in Safeco's untimely disclosure of a draft expert report because there was insufficient prejudice to the Owner given that the report was made available toward the end of trial and counsel had the opportunity to cross-examine Safeco's expert on the draft report.

Copy of opinion also available here Download file

Yet another example of the discovery quagmire created by widespread email use on construction projects.  Here, in producing more than 3,000 emails, the attachments to the emails were separated from the emails due to some type of software incompatibility.  This snafu gave rise to a heated discovery battle over whether the owner had to re-produced the emails with restored attachments (very expensive) and if so who pays.  Bottom line: the owner was ordered to re-produce the emails, with attachments, at its expense.

Copy of opinion also available here Download file

With the rise of condo defect cases came the phenomenon of claims based on technical violations of plans or applicable codes without much in the way of resulting damage to the structure.  This case sheds some light on whether a plaintiff can still maintain a breach of contract action for money recovery under these circumstances.  The answer seems to be that a breach by itself is not enough.  Damage must be shown.

The case also has some pearls of wisdom on the following issues:

1. Who decides -- judge or jury -- the amount of legal fees to be awarded when the fees are sought as an element of "damages" under an indemnity clause rather than under a prevailing party fee clause?  Answer:  the jury.
2. What are the elements of an enforceable contract where -- as often seems to happen -- the deal arises out of informal communications without final mutual signatures?  Check out the discussion.
3. Does an indemnity clause covering "any and all claims" cover both tort and contract claims?  Answer: yep.

A copy of the opinion also available here Download file

Characterizing his expert report as "legal argument dressed as expert testimony", the U.S. Court of Federal Claims held that Prof. Ralph Nash of Georgetown University, a leading government contracts expert and prolific author, won't be permitted to testify as to his legal opinions in a patent infringement case.  The opinion contains an excellent summary of the case law on when expert testimony crosses the line into forbidden legal conclusions.

Copy of decision also available here Download file

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

The GC's insurance company settled a stucco defect claim by paying the owner $318,000 which the owner promptly used to tear down the existing house (and EIFS) and dispose of the "evidence" to make way for the new home.  In response to the carrier's subrogation suit, the responsible subcontractor filed for summary judgment on the ground that its expert was deprived of the crucial opportunity to see the defective work and resulting damage.  Division 2 held the carrier had no control over the owner's home and was not at fault for the evidence destruction.

Here's an interesting resource for keeping up with recent decisions affecting the admissibility of expert testimony -- Daubert on the Web -- including testimony offered by engineers and architects.

These folks also offer a daily blog of recent Rule 702 decisions and developments, which looks quite helpful as well.

A contractor hired by the federal government to expand a levee in Louisiana requested an equitable adjustment to its contract for extra labor and material costs. The claim was written by an outside consultant who lacked personal knowledge of the events. The goverment brought a pretrial motion in limine to exclude the consultant's claim, arguing it lacked any shred of reliability.

As often happens with such motions, the Court of Federal Claims ruled the objection went to the weight of the claim rather than its admissibility, and denied the motion on that basis. In doing so, however, the Court also addressed an issue which arises in many construction claims: when is a party allowed to submit a "summary" of voluminous evidence under ER 1006? For reasons described in the opinion, the Court held in this case the "summary" failed to meet the four-part test of ER 1006 and thus the case provides useful guidance to those who may wish to rely on "summary" evidence at trial in Washington as well.