Oregon Construction Cases

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

The Oregon Court of Appeals recently issued a surprising decision regarding the ultimate timeline to file a construction defect claim involving a “spec home.” (A “spec home” is a house which a builder or developer constructs not for a specific owner but on speculation that the home will sell to the general public upon completion.)  In Shell v The Schollander Companies, Inc. (September 24, 2014), the Court of Appeals decided that ORS 12.115, as opposed to ORS 12.135, supplies the appropriate ten-year statute of repose for an owner seeking a negligent construction claim where the owner does not have a traditional “construction contract” with the builder.  The plaintiff in Shell was the original owner of the home.  She purchased the property midway through construction from the original developer/builder using a real estate sales agreement to complete the transaction.
Continue Reading

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.

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

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.

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: http://www.courts.wa.gov/opinions/pdf/696378.pdf.
Continue Reading

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

It is a fact of life: Over time, property will require repair or replacement due to normal lifecycle and usage or damage. A homeowners association (HOA) Board of Directors is responsible for the maintenance and repair of common elements. However, many HOAs have language in their governing documents that limit the Board of Directors’ ability to make capital improvements, typically requiring a super-majority vote of the unit owners. How can a Board of Directors tell a proposed repair from a capital improvement? Unfortunately, at least in Oregon, there is no clear answer; but rather, there is a fact sensitive inquiry into the scope and character of the work being performed.
Continue Reading

When contracts go bad and a lawsuit percolates, it is important to know whether your attorneys fees will be covered based on provisions outlined in the contract. Relying on an indemnity provision is not enough, as illustrated by the Oregon Court of Appeals in its recent opinion in Pacificorp v. SimplexGrinnell, LP, 256 Or App 665 (2013).
Continue Reading