Seattle Washington Building Expert Directory

Colorado Supreme Court Grants the Petition for Writ of Certiorari in Vallagio v. Metropolitan Homes

June 22, 2016 — David M. McLain – Colorado Construction Litigation
We have previously reported on the Vallagio v. Metropolitan Homes case, in which the Colorado Court of Appeals upheld a provision in an association's declaration of covenants, conditions, and restrictions, which required declarant consent before an arbitration provision could be amended out of the document. To read the past articles on the case, please review Vallagio v. Metropolitan Homes: The Colorado Court of Appeals' Decision Protecting a Declarant’s Right to Arbitration in Construction Defect Cases and The Vallagio HOA Appeals the Decision from the Colorado Court of Appeals. Today, the Colorado Supreme Court granted the association's petition for writ of certiorari, en banc, on the following reframed issues:

Whether the court of appeals erred by holding as a matter of first impression that Colorado’s Common Interest Ownership Act (“CCIOA”) permits a developer-declarant to reserve the power to veto unit owner votes to amend common interest community declarations.

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Reprinted courtesy of David M. McClain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McClain may be contacted at mclain@hhmrlaw.com

English v. RKK- There is Even More to the Story

May 17, 2021 — Christopher G. Hill - Construction Law Musings
Just when you thought that the litigation between W. C. English and RKK had no more to give (after all, there have been posts with wisdom from this case here, here, and here), it keeps on giving. A relatively recent opinion from this litigation involved, among other pre-trial motions, motions by English to exclude expert witness testimony. English sought to exclude Defendant CDM Smith, Inc’s expert testimony relating to CDM’s standard of care, the replacement of the bridge deck, English’s failure to fire CDM, and additional contributing factors regarding the spacing of the reinforcing steel. English sought to exclude RKK’s expert opinion regarding English’s owed standard of care vis a vis VDOT. In evaluating these motions, the Court applied the following standard:

An expert qualified “by knowledge, skill, experience, training, or education, may testify “as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. However, such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles and methods,” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” [citations excluded here but stated in the opinion]

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Several Lewis Brisbois Partners Recognized by Sacramento Magazine in List of Top Lawyers

October 03, 2022 — Lewis Brisbois
Sacramento, Calif. (September 2, 2022) - Sacramento Magazine has recognized several partners from Lewis Brisbois' Sacramento office on its List of Top Lawyers of 2022. The list is developed through a peer nomination process, with nominees then evaluated on the basis of survey results, the legitimacy of their licenses, and their standing with the State Bar of California. Qualifying attorneys who then receive the highest number of votes from their peers are included in the list, which is organized by area of practice. Congratulations to:

Managing Partner John S. Poulos, recognized for Construction Law and Construction Litigation.
Partner Paul R. Baleria, recognized for Medical Malpractice.
Partner Scott E. Bartel, recognized for Securities & Corporate Finance and Securities Litigation.
Partner Greg L. Johnson, recognized for Banking & Financial Services.
Partner Eric J. Stiff, recognized for Mergers & Acquisitions.

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Reprinted courtesy of Lewis Brisbois

Warranty of Workmanship and Habitability Cannot Be Disclaimed or Waived Under Any Circumstance

May 01, 2023 — Jason Feld & Stephanie Wilson - Kahana & Feld LLP
Arizona residential construction and single-family home production is growing at a rapid pace. And just as fast as the homes are sold, homeowners are constantly seeking warranty repairs from their homebuilders. Despite having strong purchase documents with express warranty language, the Arizona Supreme Court in Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022) adopted a bright line rule that regardless of the contract, the implied warranty of workmanship and habitability (“implied warranty”) cannot be disclaimed or waived under any circumstance. The Arizona Supreme Court opinion provides clear guidance of the law in this area on the scope of the implied warranty in contracts between homebuyers and builder/vendors, specifically on the issue of whether an express warranty can negate and effectively waive the common law implied warranty – which is a definitive violation of public policy. The Zambrano decision involved a licensed real estate broker who bought a new single family home for herself in a newly constructed master planned community in Surprise, AZ. Zambrano entered into a valid sales contract with Scott Homes (homebuilder) which contained a stand-alone 45-page pre-printed form express warranty. The express warranty was to be the “only warranty applicable to the home.” The contract further clarified that the buyer was expressly disclaiming (and, thus, waiving) the implied warranty. The sales documents and express warranty were signed and authorized by Zambrano. A short time later, the home developed alleged “design and construction defects” that were “either time barred or outside the coverage” of the express warranty. Zambrano filed suit for the alleged defects based on the implied warranty. Scott Homes filed summary judgment based on the Zambrano’s waiver and disclaimer of the implied warranty in the purchase agreement. The trial court granted summary judgment and the matter was appealed up to the Arizona Supreme Court. Reprinted courtesy of Jason Feld, Kahana & Feld LLP and Stephanie Wilson, Kahana & Feld LLP Mr. Feld may be contacted at jfeld@kahanafeld.com Ms. Wilson may be contacted at swilson@kahanafeld.com Read the court decision
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Recent Developments Involving Cedell v. Farmers Insurance Company of Washington

September 05, 2022 — Donald Verfurth, Sally Kim, Stephanie Ries & Kyle Silk-Eglit - Gordon & Rees Insurance Coverage Law Blog
Ever since the Washington Supreme Court’s 2013 decision in Cedell v. Farmers Insurance Company of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), insurance coverage attorneys have been struggling to define the exact parameters of the Cedell ruling in order to safeguard the attorney-client privilege as to the communications between the insurer and its counsel. As a brief background, the Washington Supreme Court held in Cedell that there is a presumption of no attorney-client privilege in a lawsuit involving bad faith claims handling. However, an insurer can overcome the presumption of no attorney-client privilege by showing that its counsel provided legal advice regarding the insurer’s potential liability under the policy and law, and did not engage in any quasi-fiduciary activities, i.e. claims handling activities, such as investigating, evaluating, adjusting or processing the insured’s claim. Since Cedell, various trial courts have held that the following activities by an insurer’s counsel constitute quasi-fiduciary conduct that do not overcome the presumption of no attorney-client privilege, resulting in an order to produce documents and/or to permit the deposition of the insurer’s counsel:

Insurer’s attorney being the primary or sole point of contact with the insured for the insurer;
Insurer’s attorney requesting documents from the insured that are relevant to the investigation of the claim;
Insurer’s attorney communicating directly with the insured or the insured’s counsel regarding claims handling issues or payments;
Insurer’s attorney interviewing witnesses for purposes of the investigation of the claim;
Insurer’s attorney conducting an examination under oath of the insured;
Insurer’s attorney drafting proposed or final reservation of rights letter or denial letter to the insured; and
Insurer’s attorney conducting settlement negotiations in an underlying litigation.

Reprinted courtesy of Donald Verfurth, Gordon Rees Scully Mansukhani, Sally Kim, Gordon Rees Scully Mansukhani, Stephanie Ries, Gordon Rees Scully Mansukhani and Kyle Silk-Eglit, Gordon Rees Scully Mansukhani Mr. Verfurth may be contacted at dverfurth@grsm.com Ms. Kim may be contacted at sallykim@grsm.com Ms. Ries may be contacted at sries@grsm.com Mr. Silk-Eglit may be contacted at ksilkeglit@grsm.com Read the court decision
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Zombie Foreclosures Plaguing Various Cities in the U.S.

July 16, 2014 — Beverley BevenFlorez-CDJ STAFF
Many homeowners are simply abandoning their homes before banks have completed the foreclosure process, according to USA Today. Banks are not always in a hurry to take ownership of property, and often will wait until they are ready to dispose of it before doing so: “There are two primary things that can factor into their decision," Eric Eckardt, vice president and general manager of Hubzu.com, told the Mail Tribune. "One, they may have a surplus of REO properties they're trying to move off the balance sheet. The second is, costs associated with foreclosure may be greater than the value. At the end of the day, it's really a case-by-case matter.” USA Today reported that “[t]he length of the entire foreclosure process is a major contributor to vacancy rates because homeowners are more likely to give up on their homes the longer they have to wait for a resolution.” These abandoned homes may have a negative impact on sales of neighboring homes, according to the Mail Tribune. Gary Poulos, a retired Harry & David systems engineer, lives next door to a ‘zombie foreclosure,’ and spent a year trying to get maintenance work completed on the neighboring property so that he could be in a position to sell his own. He created a blog about his experience (myneighborchasebank.blogspot.com). Big Builder analyzed May 2014 data from CoreLogic, and identified the five states with the highest foreclosure inventory: New Jersey, Florida, New York, Hawaii, and Maine. While the five states with the lowest foreclosure inventory were Alaska, Nebraska, North Dakota, Wyoming, and Minnesota. Read the full story, USA Today... Read the full story, Big Builder... Read the full story, Mail Tribune... Read the court decision
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US Appeals Court Slams FERC on Long-Muddled State Environmental Permits

March 27, 2019 — Mary B. Powers and Debra K. Rubin - Engineering News-Record
What may be the nation’s largest dam removal project—delayed for years by regulatory and legal disputes of a utility, stakeholders and states over licensing and environmental permits—now may have new momentum after a hard-hitting January federal appeals court ruling. Reprinted courtesy of Mary B. Powers, ENR and Debra K. Rubin, ENR Ms. Rubin may be contacted at rubind@enr.com Read the court decision
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You're Doing Construction in Russia, Now What?

May 16, 2022 — Anazette Ray & Michael Vardaro - Zetlin & De Chiara LLP
In recent weeks, there has been a long list of companies, from all industries spanning from construction/engineering to fashion and hospitality, that have announced that they are completely severing ties with Russia, while a host of others have announced a temporary halt. See Jeffrey A. Sonnenfeld, Over 400 Companies Have Withdrawn from Russia – But Some Remain, Yale School of Management (Updated Mar. 21, 2022), https://som.yale.edu/story/2022/over-400-companies-have-withdrawn-russia-some-remain?utm_campaign=mb. For those developers, EPC contractors, and design professionals (engineers and architects) who have construction projects in Russia, the question is, “How should we proceed?” The U.S. initially stated that it was not issuing a total embargo on business dealings and trade relations with Russia in response to the nation’s invasion of Ukraine. Instead, the U.S., along with many other Western nations, issued targeted sanctions. See Francesco Giumelli, Understanding Targeted U.N. Sanctions: An Empirical Analysis, International Affairs, 91(6), 1351-1368 (explaining the difference between embargoes and targeted sanctions). However, after evidence of war crimes by Russia emerged, President Biden issued an Executive Order prohibiting U.S. individuals, whether in the states or abroad, from new investments in Russia and prohibiting U.S. individuals from transactions with Russian state-owned entities. See April 6, 2022, Presidential Actions, https://www.whitehouse.gov/briefing-room/presidential-actions/2022/04/06/prohibiting-new-investment-in-and-certain-services-to-the-russian-federation-in-response-to-continued-russian-federation-aggression/. This new Executive Order is said to not affect existing contracts in Russia, but instead prohibits new ones. Reprinted courtesy of Anazette Ray, Zetlin & De Chiara LLP and Michael Vardaro, Zetlin & De Chiara LLP Ms. Ray may be contacted at aray@zdlaw.com Mr. Vardaro may be contacted at mvardaro@zdlaw.com Read the court decision
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