Construction Law Watch

It’s a bird, it’s a plane, it’s … a construction drone. Government regulations are still catching up to elusive flying machines.

Posted in UAVs
Drone picture

Unmanned aerial vehicles (UAVs), commonly called drones, are frequently in the news and gaining popularity on the jobsite.  Architects, engineers and contractors are exploring ways to easily document and map building construction progress and quality control with the ease of monitoring by UAVs.  Despite their rising popularity, the laws and regulations surrounding the use of UAVs remain unsettled.  While on the cusp of this exciting technology, architects, engineers and contractors ought to coordinate closely with other project participants, and their own insurance companies, before deploying and using UAVs in a project.  It is an open question whether any use of a UAV is legal, or free from risk, while the responsible government agencies sort out the regulations and jurisdictional issues. Continue Reading

New AIA Design-Build Agreement: The Waiting Game

Posted in AIA Contract Forms, Construction Contracts, Uncategorized

Formal design-build agreements are used by property owners in circumstances where a single firm is hired that will be responsible for both designing and constructing a project. Sometimes projects fall into this category by default.  For example, a contract that simply states the contractor will install a bill of materials, without reference to plans, is in fact a design-build agreement—but may leave unclear who is responsible for the actual design of the construction.  This can lead to numerous problems down the road.  Fortunately, the American Institute of Architects (AIA) publishes a commonly-used form for design-build agreement forms, the AIA A141. This AIA form may be worthy of consideration when choosing among starting points for a design-build project – but I recommend proceeding with caution.

The AIA recently published a 2014 update to the 2004 A141 form, and the 2004 form will no longer be available for use after 2015.  The 2014 updated form includes a variety of modifications.  Some clarify 2004 provisions, some simplify the form, and some change the risks and responsibilities of the parties.

Of particular note is that the 2014 form includes a key structural change from the 2004 from.  Continue Reading

The debate continues: do construction defects present a single or multiple “occurrence” for insurance coverage purposes?

Posted in Construction Claims, Construction Defect, Construction Defect Repairs, Insurance Coverage

Our colleagues at The Policyholder Report  note on a recent decision of whether construction defects present a single or multiple “occurrence” for insurance coverage purposes. In Chartis Specialty Ins. Co. v. Am. Contractors Ins. Co. (Aug. 12, 2014), Judge King of the federal district court in Oregon ruled that allegations of “deficiently managed construction” constituted a single occurrence for coverage purposes. Whether defective construction, development, administration and management give rise to one or more “occurrences” has profound consequences for both insurers and their insureds with regard to policy limits in play and deductibles/self-insurance retention amounts.  Read it here.

Oregon courts struggle with the scope of consumer protection under the Unlawful Trade Practices Act

Posted in Condominium, Construction Claims, Consumer Protection, Unlawful Trade Practices Act, UTPA

It is an all too familiar scenario: A condominium association (“COA”) sues a manufacturer of allegedly defective products used in the construction of the condominium. The COA alleges, among other claims, an Unlawful Trade Practices Act (“UTPA”) claim. The manufacturer–defendant seeks to dismiss the UTPA claim, arguing the UTPA, as a consumer protection statute, does not apply because neither the COA nor its members are “consumers” of the defective product, which was manufactured by the defendant, distributed by a third–party, and installed by a contractor. According to the manufacturer–defendant, this is a commercial transaction outside the UTPA. The COA argues its members are “consumers” because they purchased their units containing the defective product. Whether the UTPA requires plaintiffs to have some transactional relationship with the defendant to qualify as a “consumer” is currently unsettled in Oregon. Continue Reading

Oregon Policyholders Get Big Win in Decision Today

Posted in Construction Claims, Construction Defect, Construction Defect Repairs, Construction Dispute, Insurance Coverage, Oregon Construction Cases, Oregon Court of Appeals

Today the Oregon Court of Appeals handed down a lengthy opinion upholding a money judgment awarded in favor of a judgment creditor in its garnishment action against American Family Insurance Company.  Read about it and get the decision on Ball Janik’s Policyholder Report.

3 Open Questions About Construction Claims and Oregon Law

Posted in Construction Dispute, Contract Clause, Oregon Construction Cases, Oregon Court of Appeals, Oregon Supreme Court, Statute of Limitations, Statute of Repose

Leave it to Oregon. We proudly possess some of the most confusing statutes of limitation and repose anywhere, especially as they relate to construction claims. We always have interesting questions that linger unanswered for years or even decades before finding resolution by case law or statute. Even when we get answers, those answers always seem to raise more questions. Three current questions warrant brief discussion.

1.      What is the statute of limitations for negligent injury to real property?  Continue Reading

Before you build, know your restrictions!

Posted in CC&Rs, Homeowners Association

Oregon subdivisions often have Declarations of Covenants, Conditions, and Restrictions (“CC&Rs”) with varying degrees of restrictions on the characteristics of homes to be built there. For example, some CC&Rs restrict how tall homes can be to protect views of all of the homes in the neighborhood, or may specify certain materials for roofing or siding, to keep a consistent aesthetic in the community. Other CC&Rs require levels of upkeep on homes and give the HOA the power to fine owners that do not comply. It is important that prospective purchasers and owners in communities governed by CC&Rs know the restrictions in order to avoid potentially costly disputes. Continue Reading

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