Construction Law Watch

Protecting Against Disclosure of Prior Settlement Agreements at Trial

Posted in Construction Defect, Oregon Court of Appeals

On July 22, 2015, the Court of Appeals reaffirmed its prior decision in Alfieri v. Solomon, 263 Or App 494 (2014), petition for review granted, 356 Or 516 (2014) that confidential communications made during and/or in furtherance of a mediation proceeding are protected and shall not be admitted into evidence in any subsequent adjudicatory proceeding under ORS 36.22. Yoshida’s Inc. v. Dunn Carney Allen Higgins & Tongue LLP, 272 Or App 436 (2015). ORS 36.22 states in pertinent part: Continue Reading

Florida Appellate Court Revives $15 Million Construction Claim

Posted in Condominium, Construction Defect, Florida

Can three days make a difference when filing a construction defect lawsuit? Absolutely! In Cypress Fairway Condominium v. Bergeron Construction Co. Inc., three days was the difference between the claim being time barred and timely filed.

Under Section 95.11(3)(c), Florida Statutes, an action founded on the design, planning, construction, or an improvement to real property must be commenced within ten years after the latest of four specific events: actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract. Continue Reading

Oregon Bill to Revise “Certificate of Merit” Statute for Lawsuits against Architects and Engineers Should Do More to Clarify Protections.

Posted in Construction Claims

The Oregon Legislature is currently considering Senate Bill 383, which would revise Oregon’s “certificate of merit” statute, ORS 31.300. The Bill has already passed through the Senate Judiciary Committee, and is now before the House Committee on Consumer Protection and Government Effectiveness. The Bill would add a requirement that a court filing against an architect or engineer include a summary or the conduct complained of, and would narrow who can certify claims against what type of disciplines. A “certificate of merit” law with clear standards and processes is more likely to achieve the goal of limiting actions against design professionals to meritorious claims. SB 383 muddies the waters, and worse, conflicts with Oregon’s Rules of Civil Procedure which lawyers must follow.

“Certificate of merit” statutes in Oregon, and other states, are designed to limit frivolous lawsuits against design professionals by requiring that the attorney filing the lawsuit certify that the attorney has consulted with another design professional who will testify to the standard of care required in the profession, and that the standard of care was breached. Senate Bill 383’s proponents wish to strengthen and clarify the Oregon statute. But Senate Bill 383 does not go far enough, and is not specific enough, to achieve what the Bill’s proponents wish to achieve. Instead, in its current form, it simply invites further litigation and questions. Worse, it conflicts with Oregon’s Rules of Civil Procedure, which attorneys must follow in Oregon. Continue Reading

The Oregon Court of Appeals Weighs in Again on Releases

Posted in Release of Liability

Last month, in Becker v. Hoodoo Ski Bowl Developers, Inc., the Oregon Court of Appeals issued another decision concerning whether a standardized release of liability bars claims from an injured customer. Following the lead of the earlier Oregon Supreme Court case of Bagley v. Mt. Bachelor, Inc., the Court of Appeals decided that Hoodoo Ski Bowl’s release of liability was unenforceable because it was unconscionable.

In this case, the plaintiff, Tabitha Becker was injured in the process of boarding a lift at Hoodoo. The chair of the lift was upright, and it struck Ms. Becker as she tried to move out of the lift area. She was injured and filed her lawsuit against Hoodoo Ski Bowl, arguing that Hoodoo was negligent. Ms. Becker’s husband had bought the lift ticket for her that day, and on the reverse side of the ticket was the type of release language many are familiar with. In particular, the release stated that:

“THE USER OF THIS TICKET HEREBY RELEASES HOODOO SKI BOWL DEVELOPERS, INC. DBA HOODOO SKI ARE AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OF OR IN CONNECTION WITH THE USE OF THIS TICKET INCLUDING BUT NOT LIMITED TO SKIING ACTIVITIES AND LOADING AND UNLOADING FROM LIFTS. THIS RELEASE INCLUDES CLAIMS BASED UPON NEGLIGENCE.”   Continue Reading

Eleventh Circuit Provides Critical Path to Defense and Indemnity

Posted in Construction Claims, Construction Defect, Insurance Coverage

On April 7, 2015, a federal appellate court issued a critical opinion on insurance coverage for construction-defect cases. In Carithers v. Mid-Continent Casualty Company, the Eleventh Circuit held that (1) the duty to defend is triggered unless there is certainty (factual and legal) that no coverage exists; (2) there is coverage under a contractor’s commercial general liability policy for property damage caused by one subcontractor’s work to another subcontractors work; and (3) “rip and tear” costs are covered “property damage.” Continue Reading

What’s behind the insurance curtain: Oregon levels the playing field

Posted in Construction Defect, Discovery Rule, Insurance Coverage, Oregon Supreme Court, Uncategorized

With the sanctity of any time-honored tradition, insurers resist discovery of their claim file with the ritualistic incantation that it is protected from discovery because it was prepared in anticipation of litigation, and therefore qualifies as work product.  To support this argument, oftentimes insurers outsource the adjustment of the claim (a normal business activity) to outside attorneys, and then refuse to provide the attorney’s file, or communications with the insurer and the attorney, on the basis that those documents are protected by the attorney-client privilege. Courts across the county have been increasingly dismissive of these arguments, holding that an insurer cannot cloak its claim file with privilege simply by paying a lawyer to do what is otherwise an everyday claim handling activity for the insurer.  Oregon finally has a chance to weigh in on this issue and level the playing field for insureds.  Read more on The Policyholder Report blog.

Management of Reconstruction Projects—Tips for Owners and Associations

Posted in Community Associations, Construction Contracts, Construction Defect, Construction Defect Repairs, Construction Management, Homeowners Association, Risk Management

After having successfully recovered, borrowed, or assessed funds for the repair of damaged buildings, an owner, property manager, or homeowners association (I’ll use the term “Owner” in this piece for brevity) must shift gears, and determine how most wisely to spend those funds.  The Owner may not have experience with significant construction projects, and likely must rely on outside expertise for management of reconstruction.

  1. Continuation with Forensic Consultants

If the Owner engaged a forensic analyst to study the damage, continuing a relationship with that analyst through the construction project usually makes sense. The analyst can be hired to continue assistance in a number of capacities: convert its recommended repairs to formal construction drawings, review and administer construction through completion, or provide peer review and comment on the work of others. The Owner should confirm with the analyst up front whether it has that capacity and expertise to perform these functions, and meet with the personnel at the firm who would be assigned such duties. Continue Reading

Federal Court in Florida Refuses to Let Excess Insurer Escape $23M Claim Where Deficient Work Caused Damage to Project Itself

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

Please check out my latest post on the Policyholder Report blog regarding a recent Florida decision  – another win for policyholders.  Here is an excerpt:

Last week, a federal district court in Florida reaffirmed the black-letter law in Florida that claims against a general contractor for damage to the completed project resulting from the defective work of a subcontractor constitutes “property damage” under a Commercial General Liability, or “CGL,” policy. The order also clarifies how “other insurance” clauses are construed when insurers offer competing arguments about who has to pay first — a common dispute in multiparty, multipolicy cases.

In Pavarini Construction Co. v. ACE American Ins. Co. (Feb. 25, 2015), Pavarini, the insured, was the general contractor for a 63-floor, mixed-use condominium tower. As is customary in projects of this size, Pavarini hired several subcontractors to perform the work. The steel subcontractor’s deficient work at issue in this case involved missing and misplaced reinforcing steel in the concrete masonry unit. This deficient work caused excess movement in the building, resulting in damage to exterior stucco, water intrusion in the penthouse enclosure, and cracking in the concrete columns, beams, and shear walls.  Read more.

Nuisance on the Block

Posted in CC&Rs, Community Associations, HOA, Nuisance

This article was previously published in WSCAI’s newsletter.

Neighbors will never cease finding ways to bother each other and to be bothered. The eternal struggle for community associations is determining when this bothersome behavior rises to the level of a violation of the Association’s rules and/or governing documents, which the board must enforce, and when the Association should let the neighbors handle it among themselves.

Most governing documents include a provision that says something like: “No owners shall engage in noxious or offensive activities, or do anything which may become an annoyance or a nuisance, or in any way interfere with the quiet enjoyment of other owners.” Words like “offensive,” “annoyance,” and “nuisance” are hard to define and can be dependent on the person perceiving the behavior. Regardless of the specific words of your Association’s provision, the goal is to limit the activity of one owner, which negatively impacts another owner. Accordingly, many Associations have resolutions or rules specifically addressing smoking, pets, and noise, which are the biggest areas of “nuisance” for most Associations. Continue Reading

Mockeries and Latent Breaches: Reflections on Oregon’s Discovery Rule

Posted in Breach of Contract, Construction Claims, Construction Contracts, Construction Defect, Discovery Rule, Oregon Supreme Court

Statutes of limitation cut off rights to bring a lawsuit after a designated time period, regardless of the strength of your case or how much you’ve been injured. The length of these time periods can vary by the type of claim being brought, and the starting date can vary also. The “discovery rule” – which delays the starting point for periods of limitation until the injured party discovers the cause of action – has the greatest potential impact on this starting date. Oregon law has been unstable regarding application of the discovery rule to claims for breach of contract. Although we appear to be reaching a point of greater certainty on this issue, more refinement may yet be required.

Oregon’s Discovery Rule Generally

Discovery rules in Oregon arise Continue Reading