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Justin D. Monahan's practice is focused on Construction Defect and Litigation. He has litigated multi-million dollar construction defect and collapse cases on behalf of homeowners and homeowners' associations. A trained architect, Mr. Monahan brings unique perspective to the firm’s growing construction practice. His knowledge of construction detail and ability to work closely with architects helps the firm’s litigation team build a strong visual story for the jury.

The federal Fair Housing Act (“FHA”) and Americans with Disabilities Act (“ADA”) require property developers to provide reasonable accommodations for disabled individuals. In turn, property owners rely on their architect and engineer to design compliant projects. If a project is not compliant, it is typical thinking that the property owner will seek indemnification and defense from the architect or engineer who was paid and insured to make it compliant.

The federal courts prohibit this, however. That is because the national consensus is that the FHA and ADA preempt state contractual law. The courts have looked at the statutes for an express private right of indemnification by an owner against a negligent designer, and they have not found one. As such, they hold that the requirements of the FHA and ADA on property owners are “non-delegable,” and that the liability for their breach cannot be shifted on to any other party.

The recent case of The Chicago Housing Authority v. Destefano and Partners, Ltd., 45 N.E.3d 767, 2015 IL App (1st) 142870 (2016) is illustrative. There, a review by the United States Department of Housing and Urban Development (“HUD”) revealed a range of noncompliance issues at seven properties, necessitating over $4 Million in renovations and new work. The Housing Authority had worked with the architects and engineers expressly to achieve compliance, requiring compliance in the design contracts. The Housing Authority therefore sued the architect and engineer to recover the cost of achieving compliance, under both breach of contract and indemnity theories.

The Illinois Court reviewed a lead case on the matter, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010), noting that the federal trend has been consistent that property owners cannot contractually delegate their duty to comply with the federal accessibility standards. The Illinois Court ultimately held that the Housing Authority had no recourse against its designers whose negligence had caused the noncompliance, because no recourse was provided for in the governing federal standards. Recently, contractors have also been taking advantage of this caselaw to further isolate developers when claims arise. Continue Reading Property Developers Need to Take Extra Steps to Protect Themselves from ADA and FHA Liabilities

Last week, the Oregon Supreme Court held in Goodwin v. Kingsmen Plastering (June 16, 2016), that a property owner must sue a contractor for negligent construction, if at all, within two years of when the property owner “knew or should have known of the injuries or damage that form the basis of their claims” under ORS 12.110(1). The ruling highlights the issue of “discovery,” and appears to be at odds with the Supreme Court’s ruling in Rice v. Rabb, 354 Or 721 (2014), which held that a claim for conversion or replevin must be brought within six years of the time “plaintiff knows or reasonably should know of the elements of such claims[.]” What does it take for a property owner to “discover” its claim?

Historically, the Supreme Court has written that claims accrue only after the potential plaintiff discovers “harm (i.e., injury), causation, and tortious conduct.” Gaston v. Parsons, 318 Or 247, 255-256 (1994). The Oregon Supreme Court has held that such language requires not only knowledge of “injury” in a vacuum, but also knowledge of tortious conduct and causation for that damage. Gaston. Continue Reading The Focus is on “Discovery” of Claims after Goodwin v. Kingsmen Plastering, Inc.

A recent Illinois State Court of Appeals decision has highlighted the distinction between providing a product for sale to the public on the one hand, and providing a service under a contract on the other. Many design firms are now branching out to market and deliver their own products, satisfying a growing market for prefabricated structures, substructures, and building systems while taking advantage of developments in manufacturing coordination. Historically, architects involved solely with design have enjoyed immunity from expanding breach of warranty doctrines. But, as designers enter the stream of commerce to deliver fully manufactured products, that protection may disappear. When they do, design firms may subject themselves to liability for implied warranties and strict liability, concerns typically reserved for manufacturers and builder-sellers. Design firms need to make sure their products are priced to account for this risk and that they are insured for it. Sophisticated customers ordering prefabricated structures, substructures, and building systems from design firms or their subsidiaries should seek proof of the same.

In Board of Managers of Park Point at Wheeling Condominium Ass’n v. Park Point at Wheeling, LLC, 2015 IL App (1st) No. 123452, ___N.E.3d___, 2015 WL 9589615 (December 31, 2015), a condominium homeowners association sued an architecture firm for defective design leading to water and air infiltration. The architecture firm had designed the 128-unit complex in 2000, and construction had commenced from 2001 to 2004. The architecture firm did not take part in the construction or sale of the units. Continue Reading Design Professional Firms Selling Prefabricated Accessory Dwelling Units, Building Substructures, or Micro Homes May Be Liable for Breach of Implied Warranty, or Strict Product Liability.

Earlier this year, the Supreme Court issued Eclectic Investment, LLC v. Patterson, 357 Or 25, 346 P3d 468, modified, 357 Or 327 (2015). Eclectic has fundamentally affected pleadings and third-party practice in multi-party tort actions. Previously, it was standard for third-party defendants without a contractual relationship to sue each other for common law indemnity and contribution. Where liability was closely related or possibly overlapping, this was a negotiation tool and a potentially valuable claim. Not anymore. By confirming the elimination of common law indemnity for negligence claims in Oregon, the decision has prompted much argument and motion practice. Parties are now seeking to extend the reach of the several liability statute, ORS 31.610, to eliminate common law indemnity and contribution claims in other contexts.

Of recent note is Wyland v. W. W. Grainger, Inc., No. 3:13-CV-00863-AA, 2015 WL 3657265 (D Or June 11, 2015). There, the plaintiff, a mechanic, was injured on the job when a grinder broke apart. The plaintiff sued the distributor for negligence and strict products liability, and the distributor sought indemnity from the suppliers. The suppliers moved for summary judgment, arguing that Eclectic precluded the distributor from recovering common law indemnity. The Court held that Eclectic did preclude the claim as to negligence, but not as to strict liability. The holding raises at least two issues of note. Continue Reading Oregon Federal District Court Applies Recent Developments in Common Law Indemnity to Strict Product Liability 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 Oregon Bill to Revise “Certificate of Merit” Statute for Lawsuits against Architects and Engineers Should Do More to Clarify Protections

We spend a lot of effort on this blog talking about the time deadlines for property owners to sue contractors and design professionals for negligence.  There are two reasons for this:  first, the law on this is rapidly evolving in Oregon.  Second, it is of the utmost importance to contractors, design professionals, and property owners because there are very few absolute defenses to a claim for negligent construction besides the timing of claims.  Also, since many property owners rightfully loathe to dive into a lawsuit, they may delay filing until absolutely necessary.

The news keeps coming.  At the end of October, the Oregon Court of Appeals decided Riverview Condominium Association v. Cypress Ventures, Inc., et al., Case No A150586 (October 29, 2014).  There, the defendants developed testimony and documents evidencing that various types of water leaks had been affecting the property for several years.  The case discusses the “statute of repose” (the drop-dead deadline date for bringing any claims) as well as the “statute of limitations” (the time limit on bringing various claims). Continue Reading Oregon Court of Appeals holds cutoff time for negligent construction claims could be six years from discovery of a claim.

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

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 LEED v4: Contracts must integrate ongoing performance requirements

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

If you manage property – apartments, condominiums, or commercial properties – you know the importance of maintenance plans and budgets. It is critical to establish these priorities with the property owner. But what happens when the planned maintenance and budget is not enough? When you have to schedule several repairs and heightened maintenance? Eventually, if the construction of the property is determined to be defective, the property owner may sue the original contractors and builders who constructed the property. In turn, these contractors or builders may sue you, the property manager, and argue that sustained ineffective maintenance or incomplete repairs contributed to the damage at the property.  Do not let this happen to you. What should you do? Continue Reading Property Managers: Don’t get sued for trying to do the right thing with maintenance and repairs