SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New Jersey Appellate Decision Reminds Bid Protestors to Take Caution When Determining Where to File an Action

March 13, 2023 — Brian Glicos & Nicholas J. Zaita - Peckar & Abramson, P.C.
On February 21, 2023, the New Jersey Appellate Division held that University Hospital is not a “state administrative agency” and, therefore, the Appellate Division does not have original jurisdiction to determine the merits of an action commenced by an unsuccessful bidder to challenge the award of a contract. In re Protest of Contract for Retail Pharmacy Design, Constr., Start-up & Operation, Request for Proposal No. UH-P20-006, A-1667-20, 2023 WL 2125002 (N.J. Super. Ct. App. Div. Feb. 21, 2023). Pursuant to Rule 2:2-3(a)(2) of New Jersey’s Rules of Court, final decisions or actions of any state administrative agency or officer may be appealed directly to the Appellate Division as of right. Accordingly, where an unsuccessful bidder chooses to challenge the award of a contract issued by, for example, the New Jersey Department of Transportation, the unsuccessful bidder must file its action directly with the Appellate Division. On the other hand, where an unsuccessful bidder wishes to challenge a contract award made by a local municipality (among a slew of other public entities), the Superior Court Law Division maintains original jurisdiction over the dispute. Reprinted courtesy of Brian Glicos, Peckar & Abramson, P.C. and Nicholas J. Zaita, Peckar & Abramson, P.C. Mr. Glicos may be contacted at bglicos@pecklaw.com Mr. Zaita may be contacted at nzaita@pecklaw.com Read the court decision
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Washington Trial Court Narrows Definition of First Party Claimant, Clarifies Available Causes of Action in Commercial Property Loss Context

January 04, 2021 — Kathleen A. Nelson & Jonathan R. Missen - Lewis Brisbois
The law in the State of Washington, albeit clear on issues regarding first party claimants, was recently challenged in the matter of Eye Associates Northwest, P.C. v. Sedgwick et. al. However, despite this challenge of first impression, the court limited the application of the term “first party claimant” (a term of art akin to “insured”) based upon the wording of a loss payee clause, as well as taking into consideration and harmonizing the wording of the leases, other provisions in the policy regarding tenant improvements, and the simple fact that Eye Associates was not named in the policy whatsoever. In Eye Associates, the plaintiff leased office space in a high-rise medical office building, insured by three separate insurance companies. A water loss caused damage to the plaintiff’s leased space, and the plaintiff brought suit against the owner of the building, its insurers, the property manager, a third-party administrator (TPA), and two individual adjusters assigned to inspect and adjust the water loss claim. Reprinted courtesy of Kathleen A. Nelson, Lewis Brisbois and Jonathan R. Missen, Lewis Brisbois Ms. Nelson may be contacted at Kathleen.Nelson@lewisbrisbois.com Mr. Missen may be contacted at Jonathan.Missen@lewisbrisbois.com Read the court decision
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Construction Recovery Still Soft in New Hampshire

May 10, 2013 — CDJ STAFF
The latest building news out of New Hampshire is somewhat mixed. Yes, there has been an increase of seventeen percent in the value of future residential construction on the state. But that’s not enough to offset the general slide in the value of future construction overall. The New Hampshire Business Review reports that the state saw a four percent drop in the cost of planned construction, comparing March 2012 to March 2013. The total value of the drop was shared between the twelve percent drop in nonresidential construction and the fifty-two percent drop in infrastructure building, each of which were more than $4 million less than in the prior year. The rise in residential construction could not make up the loss in other areas. Read the court decision
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An Expert’s Qualifications are Important

January 28, 2019 — David Adelstein - Florida Construction Legal Updates
An expert’s qualifications are important. Please remember this the next time you retain an expert to analyze documents or data and render an opinion based on that information. An expert must be qualified to render an opinion. Otherwise the expert will not be allowed to render the opinion you may be looking for or need for purposes of trial, as discussed below. A recent personal injury case, White v. Ring Power Corp., 43 Fla.L.Weekly D2729a (Fla. 3d 2018), involved a crane operator that became severely injured when operating a leased crane. The case proceeded to trial against only the equipment lessor of the crane based on the plaintiff’s contention that there were deficiencies with the crane. The plaintiff intended on using expert witnesses to interpret the crane’s load movement indicator (referred to as LMI) and render opinions that the LMI data showed prior overloads of the crane which resulted in the injury to the operator of the crane. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Construction Litigation Roundup: “Tear Down This Wall!”

September 06, 2023 — Daniel Lund III - Lexology
If you enter a contract to do that in Louisiana, you had better have Louisiana contractor’s license! It is now axiomatic in Louisiana that when a Louisiana contractor’s license is required, the contract for work performed by an unlicensed contractor is an “absolute nullity,” such that the contract is deemed never to have existed. While Louisiana does not prohibit (as would be the case in certain other states) that contractor from quantum meruit/unjust enrichment recovery, who wants to rely on those noncontractual bases for recovery? After any hurricane in Louisiana, out-of-state contractors swoop in. In the case of a water mitigation company from Texas working on a property that was water damaged by Hurricane Ida, the customer refused to pay for services rendered and then defended against payment by urging that work performed by the mitigation firm required a Louisiana contractor’s license – which the mitigation firm lacked. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Re-Thinking the One-Sided Contract: Considerations for a More Balanced Approach to Contracting

November 21, 2022 — William Underwood - ConsensusDocs
Construction projects can be inherently risky – often there are multiple parties (owners, architects, engineers, contractors, subcontractors, consultants, vendors, government officials, sureties, insurers, and many others), unforeseen site conditions, tangled supply chains, acts of God, inadequate funding, site safety matters, and a whole host of other issues that can make even a relatively straight-forward job complex. Parties necessarily want to minimize their individual risk to the greatest extent possible on construction projects. And to do so, they may seek to push as much risk as possible onto the other side through one-sided terms in their construction contract.   But is an entirely one-sided contract the best way to mitigate risk? In many instances, the answer is no. Every contract is different – and many considerations should be taken into account when drafting and negotiating contracts – but entirely one-sided can often have unintended consequences and create risks that otherwise might not exist in a contract that allocates and balances risk more equally across the parties. This article reviews several considerations (although it is not an exhaustive list) for avoiding one-sided contracts, including some of the benefits created through the use of equitable contract clauses. And for context, some examples of one-sided contract clauses include no relief for other contractor/owner-caused delays; no relief for force majeure events; no relief for unforeseen site conditions; and broad form indemnification clauses (i.e. one party assumes the obligation to pay for another party’s liability even if the other party is solely at fault). Again, this is a non-exhaustive list, and many other standard contract provisions can be altered to become one-sided. But the general premise of a “one-sided contract clause” is that it shifts all risk, obligation, and liability to one party. And this article examines why that might not be the best idea.   Read the court decision
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Reprinted courtesy of William Underwood, Jones Walker LLP
Mr. Underwood may be contacted at wunderwood@joneswalker.com

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Remembering Joseph H. Foster

April 20, 2016 — White & Williams LLP
We are saddened to share the news of the loss of our longtime partner and good friend, Joseph H. Foster. Mr. Foster was a nationally recognized trial attorney who began his career at White and Williams LLP in 1958, becoming a partner in 1963, and continued to practice law, coming into the office every day, until he was hospitalized before his passing. A true giant in the Pennsylvania legal community, Joe exemplified the best of the legal profession and was widely admired and respected among the bar and bench for his lasting and impactful contributions. Mr. Foster served as the Chair of the Litigation Department and a member of the firm’s Executive Committee. During his tenure at White and Williams, he grew to become one of the most respected trial lawyers in Pennsylvania. He promoted a culture of excellence in client services and was the proverbial lawyer’s lawyer, treating his adversaries with courtesy and respect and always looking to find justice in the matters he handled. He was active in training at the firm, mentoring generations of trial lawyers and personally moving for the admission of hundreds of new attorneys at the firm, including an annual ceremony in Federal Court. Read the court decision
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Reprinted courtesy of White & Williams LLP

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Let’s Give ‘Em Sutton to Talk About: Tennessee Court Enforces Sutton Doctrine

July 24, 2023 — Gus Sara - The Subrogation Strategist
In Patton v Pearson, No. M2022-00708-COA-RC-CV, 2023 Tenn. App. LEXIS 231, the Court of Appeals of Tennessee (Court of Appeals) considered whether the lower court erred in dismissing an insurance carrier’s lawsuit against its insured’s tenant for damages sustained in a fire. While the lawsuit was filed in the name of the landlord (i.e., the insured), discovery revealed that the lawsuit was actually a subrogation lawsuit, brought by the landlord’s insurance carrier. The lower court granted the tenant’s motion for summary judgment based on the Sutton Doctrine, holding that the tenant was an implied co-insured under the landlord’s policy. The Court of Appeals affirmed, finding that although the lease agreement did not reference insurance, the Sutton Doctrine applied, which barred the landlord’s carrier from subrogating against the tenant. In 2016, Anita Pearson (Ms. Pearson) signed a lease agreement to rent a home in Nashville, Tennessee, which was owned by John and Melody Patton (collectively, the Pattons). The lease stated that the Pattons were not responsible for the tenant’s personal property. The lease also stated that the tenant would be responsible for any damage caused by her negligence or misuse of the home. The lease was silent as to which party would maintain property casualty insurance and regarding implied co-insured status on any policy. Ms. Pearson purchased renter’s insurance for her personal property. The Pattons secured a property casualty insurance policy for the home. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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