Washington Construction Law Blog

July.   In this case, the design professional was sued for not adequately warning its client of the creeping costs associated with a dewatering system.

August.   The fabled Severin doctrine -- little noticed by Washington courts -- made not one but two appearances in 2007.

September.   The Supreme Court extended the Olympic Steamship doctrine to payment and performance surety bonds on construction projects.

October.   The insurance company in this case lost its ability to assert the "your work" exclusion as a coverage defense based on its bad faith meddling in the underlying litigation.

November.   The AGC broke with the AIA for the first time in 50 years and refused to endorse the 2007 modifications to the A201 and related forms.

December.  The biggest news happened this month.  See details below the fold.

This post summarizes the major developments from January though June 2007 as documented on this website.  Part 2 will cover July through December.

January.   The Supreme Court overruled the venerable "completion and acceptance" doctrine in January.  For contractors, this means that mere completion of the work is not a shield from third party tort claims for personal injury or damage.

February.   This Oregon case provided much needed guidance on the issue of whether -- and to what extent -- the prevailing wage rules apply to a public/private project where only a portion of the work is funded by public money.

March.   The Supreme Court took the next logical step in expanding the scope of the economic loss doctrine in the Alejandre case, holding that the doctrine applies to cut off claims for purely economic loss even in situations where the contract between the parties does not provide a remedy for economic losses.   A March bonus:  our "Mayhem in the Market" summary of which party bears the risk of volatile market fluctuations of material costs.

The next time you have a construction law issue in any of these splendid states -- Alabama, Arizona, California, Florida, Georgia, Illinois, Kansas, Louisiana, Michigan, Minnesota, Missouri, New York, North Carolina, Pennsylvania or Virginia -- this useful compendium would be a good first place to look for the answer.

Last year a motorist was killed in Boston's Big Dig tunnel when a concrete ceiling panel fell onto her car.  Today Massachusetts filed a criminal indictment for involuntary manslaughter against a New York company that supplied the epoxy anchor adhesive used to affix the panels to the top of the tunnel.   The indictment comes on the heels of last month's NTSB report concluding that the adhesive was not able to withstand long-term loads and that the NY company failed to divulge enough information about the product when selling it for use in the tunnel.

We recently made a presentation to the Northwest Construction Consumers Council (NWCCC) on emerging legal issues in design-build.  You can access a copy of our presentation 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. 

While this is not a construction case strictly speaking, it does present a scenario which comes up once in a while in construction disputes and therefore merits a brief mention.  A corporation can only participate in a lawsuit through counsel, and here a case filed by a nonlawyer for a corporate plaintiff was dismissed as frivolous under CR 11 even though the result was such that it could not be re-filed because the statute of limitation for a properly filed complaint had since expired.

This website has been up and running for about 12 months and traffic is increasing steadily.  I want to thank you very much for visiting and hope you find it useful.

One service message:  I recently noticed that some older links to Washington cases (mainly 90 days+)  have "timed out" due to limitations imposed by other servers.  This means when you click the link, you are channeled to a relatively useless generic start page for Washington courts instead of to the speciifc case I had in mind.

I am exploring solutions to this problem such as embedding PDF versions directly into my entries.  Once the solution is made for future entries, I will also go back and embed more durable links into old entries to fix the past problem.

Happy Holidays to All.

While our Supreme Court doesn't often weigh into this issue, today's case applying the tribal sovereign immunity doctrine to bar a race discrimination claim filed by a pipe-fitter and equipment operator on a construction project is a useful reminder of the potency of this defense for tribal owners.  Any builder looking to do any work in any way related to tribal business needs to craft its contract to obtain a modified waiver of immunity from the client before proceeding with the work.

That's the price tag for the misadventure in the Port Angeles WSDOT project to build pontoons for the Hood Canal Bridge (the world's longest floating bridge over salt water), which was abandoned in 2004 upon discovery of an Native American burial grounds. This chart at p. 7 lays out the details. And this May 16, 2006 WSDOT report to the Legislature provides the complete audit investigation.

You'll have to be somewhat of an ERISA junkie to enjoy the full scope of this 9th Circuit decision, which turns away a preemption challenge to Oregon's apprentice training system.

Oregon evaluates an application to form a new apprentice training committee based in part on a "needs" requirement -- that is, whether the new proposed committee is necessary to the relevant occupations. The 9th Circuit, while historically somewhat inclined to read ERISA preemption broadly, here declines to override this "needs" rule, thereby giving the State latitude to run its own show.

This scenario comes up a lot: an amount owed under an invoice is disputed and the debtor mails in a check for some lesser amount with a letter stating the payment is made "in full satisfaction" of the invoice. This case affirms the general principle that, by depositing the check, the creditor waives its right to sue for the difference. While certain exceptions are noted in the decision, the general rule is caveat depositor.

Late last week, the U.S. Supreme Court declined to review the Ninth Circuit's Western States decision. That decision, issued in May 2005, held that Washington's implementation of the race-based preferences in the Transportation Equity Act of 1998 (TEA) was unconstitutional in violation of the Equal Protection Clause.

At the crossroads of telecom and construction law, here's a 9th Circuit decision handed down today which forbids a city from denying a permit to install a wireless antenna based on aesthetic concerns.

The new Supreme Court term is about to begin and it brings a bumper crop of issues of concern to the industry. We'll spotlight these cases in upcoming posts.

For now, one interesting case to keep an eye on is Ballard Square Condo. Owners Ass’n v. Dynasty Construction Co., which looks at the issue of whether a condominium owners association may sue a contractor corporation on a breach of contract claim that arises after the corporation dissolved. The Court of Appeals said no. Download file Oral argument is scheduled for March 2.

Fireworks of a sort at yesterday's Snohomish County Council meeting, where by a 3-2 vote the Council adopted a somewhat more restrictive GMA development blueprint than was anticipated.

In 1991, Washington first authorized the GC/CM delivery system for certain public works. Since that time, about 53 major projects have been built under this model. The Legislature wanted to know how things are going. The attached study gives the report card.

There is a lot of litigation by developers against cities for arbitrary conduct in permit application -- but much of it is invisible, gets settled and rarely reaches a jury for decision. Here's what happened to the City of Burien in a long-running dispute in connection with a proposed 200 unit complex: $10.5 in damages awarded to the developer. The City intends to appeal.

Want to know more about the distinction between the duties of a general contractor vs. a construction manager? Check out a new Mississippi case. Given the current lack of guidance from Washington courts on this evolving issue, it's good to keep up with what's happening elsewhere.

Builders, especially in single-family subdivisions, will now need stormwater general permits for construction sites as small as 1 acre as part of the new construction stormwater general permit requirements the state Department of Ecology released recently, according to today's Daily Journal of Commerce. The law becomes effective Dec. 16, 2005. The DJC quotes Jeff Killelea, Ecology's lead permit writer, as summarizing the three big changes in the new permit: the drop from 5 acres to 1 acre in site size; water quality monitoring requirements; and special provisions for some sites that discharge into polluted waters. For further info: http://www.ecy.wa.gov/programs/wq/stormwater/construction/small_const.html