Construction Law Watch

LEED v4: Contracts must integrate ongoing performance requirements

Posted in Construction Contracts, LEED v4, Living Building Challenge

Construction contracts must address ongoing building performance under LEED v4 and The Living Building Challenge.

For new, progressive green building development, owners, designers and contractors ought to consider making sure that their contracts accurately reflect the demands of LEED v4, which is already available for projects and will become mandatory next year by the U.S. Green Building Council. The standard, developed by the U.S. Green Building Council, continues to evolve toward the more aggressive Living Building Challenge, administered by the Cascadia Green Building Council. In two important respects, LEED v4 adopts concepts which will require careful coordination among project participants. Continue Reading

Choice of Law in an Oregon project? Not in THIS House!

Posted in Choice of law, Construction Claims, Construction Defect, Construction Dispute, Contract Clause, Uncategorized

If you look through the general conditions (or back page provisions) of your standard construction contract, you might be surprised to see a “choice of law” provision.  This provision is a term in the contract that states that the law of another jurisdiction applies to disputes arising from the work performed or obligations incurred under the construction contract.  For example, a construction contract for a house being built in Portland, Oregon could contain a provision that in the event of a dispute between the owner and builder, Washington law will apply.  A choice of law provision may be included for a variety reasons such as an out-of-state contractor, or an out-of-state  developer, the parties’ use of an unreviewed, standard form contract, or more favorable laws for the drafting partyin other jurisdictions.  Whatever the reason, for projects built in Oregon, cherry-picking Continue Reading

Oregon’s Construction Contractor Board Changes Dispute Resolution Process

Posted in Arbitration, Construction Claims, Construction Contractors Board, Construction Defect, Construction Dispute, Oregon Construction Cases, Uncategorized

The Bulletin in Bend, Oregon, reports on the benefits and limitations of the Construction Contractors Board’s dispute resolution process in the article, “More construction disputes could go to court.  State no longer resolves complaints through arbitration” by  Joseph Ditzler / The Bulletin, published June 27, 2014.  Read it online at the Bend Bulletin here.


Learning to Let Go: How Adverse Domination Tolls the Statute of Limitations for Construction Defect Cases

Posted in Construction Defect, Homeowners Association, Oregon Construction Cases
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Developers often maintain control of homeowners associations for years after construction is complete, partly in order to ensure that the warranty process runs smoothly.  However, it can also unintentionally create long-term problems for the association and the developer. For example, in a recent Washington Court of Appeals decision, a developer’s continued control of the association concealed construction problems from the owners and ultimately ended up exposing the developer/general contractor to liability years after the statute of limitations would have otherwise run.  A copy of the Alexander v. Sanford opinion is here: Continue Reading

Properly understood, expert confidentiality cannot be “waived” in Oregon

Posted in Construction Dispute, Expert testimony, Oregon Construction Cases

The Oregon state courts have unique rules regarding expert discovery.  The Oregon Rules of Civil Procedure do not allow for pre-trial depositions or document discovery from experts hired by the parties.  However, lawyers frequently confuse and challenge each other on the basis for this.  Often there is reference to the concept that the expert may be within the attorney-client privilege, or that his or her work product may somehow be confidential.  As a result, in order to protect their experts from discovery requests, and to avoid a “waiver” of protection, parties often share expert reports and materials as “mediation communications.”  The parties put significant effort into making sure that all of the other participating parties agree that any expert materials which are shared are “mediation communication” to make sure that there is no “waiver” of whatever protection exists in Oregon for experts. 

Can expert witnesses be deposed in Oregon? Continue Reading

You Patented What? A Troll on Your Job Site

Posted in Uncategorized
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Since Adam and Eve were evicted from the Garden of Eden, people have been lashing wood together for shelter. As any watcher of numerous survivor shows will tell you, a shelter is only as good as its ability to keep out the water. And, when a shelter gets wet, it needs to be dried out or mold will grow. For contractors in the Pacific Northwest, this is nothing new.

Enter the father and son team of Andrew R. and Robert A. Weisenberger. In October 2013, the U.S. Patent Office granted the Weisenbergers Patent No. 8,567,688 entitledMoisture Reduction and Mold and Moisture Preventative System and Method in Construction.” The Weisenbergers’ patented the process of drying out a home that appears as obvious as boiling a pot of water to cook pasta. The Weisenbergers’ patent consists of the following steps: Continue Reading

Alabama Supreme Court Dodges Key Questions in Recent Insurance Coverage Opinion

Posted in Construction Defect, Insurance Coverage
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Insurance coverage for construction defects has long been a contentious issue, frequently litigated between insurers and contractors, with varying results.  The results vary as widely as the states in which these cases are litigated, and many states do not have clear answers to the most critical questions.  That is no longer true in Alabama.  The Alabama Supreme Court recently issued a decision granting expanded insurance coverage to general contractors covered by the standard commercial general liability (CGL) form with completed operations coverage.   

In Owners Ins. Co. v. Jim Carr Homebuilder, LLC (Ala. 2014), a general contractor faced a sizable arbitration award from construction defects and associated property damage.  The contractor’s insurance company filed a preemptive lawsuit seeking a declaratory judgment denying any coverage to the general contractor.  The Alabama Supreme Court initially denied coverage for the arbitration award, but allowed reconsideration and reversed itself completely.  The resulting opinion presents interesting analyses on two commonly-litigated issues.

Continue Reading

Who is going to fix my window? Maintenance responsibilities in townhomes

Posted in Condominium, Homeowners Association

Rowhomes and townhomes are a popular form of multi-family dwelling, but not all attached homes are organized the same way, and they don’t all have the same maintenance obligations between the homeowners’ association (if there is one) and the individual owners. Knowing how a townhome community is organized can help you decide if purchasing is right for you.  If you already own a townhome, it is important to understand the maintenance responsibilities of the homeowners’ association and yourself, should any issues arise.

Rowhomes and townhomes in Oregon may be organized as Condominiums, under the Oregon Condominium Act (ORS Chapter 100) or as Planned Communities, under the Planned Community Act (parts of ORS Chapter 94).  To add a wrinkle to all of this, people often refer to Planned Communities as “Townhomes,” but a community may look like townhomes and be organized as Condominiums and a community of detached homes could be organized as a planned community. Continue Reading