SEATTLE WASHINGTON CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Contractual Fee-Shifting in Litigation: Who Pays the Price?

December 31, 2024 — Caitlin Kicklighter - ConsensusDocs
When disputes on a construction project escalate to litigation, general contractors may find themselves entangled in a costly and time-consuming legal battle. One important concept to understand is contractual fee-shifting under a “prevailing party” provision, which can significantly impact damages recovered in litigation. The general rule, known as the “American Rule,” requires each party to pay its own legal costs, including attorney’s fees, expert witness expenses, and other court-related costs. This differs from other legal systems where the losing party typically pays the winning party’s fees. One exception to the American Rule is contractual fee-shifting, specifically through “prevailing party” provisions, which allows for the award of attorney’s fees and costs when explicitly provided for in a contract. This article explores this exception to the American Rule, delves into the challenges posed by prevailing party provisions, and shares tips to consider for drafting these clauses to improve clarity and minimize uncertainty in the face of litigation. Read the full story...
Reprinted courtesy of Caitlin Kicklighter, Jones Walker LLP
Ms. Kicklighter may be contacted at ckicklighter@joneswalker.com

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Assessments Underway After Hurricane Milton Rips Off Stadium Roof, Snaps Crane Boom in Florida

November 05, 2024 — James Leggate - Engineering News-Record
Hurricane Milton and tornados it spurred killed at least five people and knocked out power to 4 million homes and businesses in Florida after making landfall Oct. 9 near Siesta Key in Sarasota County. With assessments and rescues still underway, state officials say the damage was not as bad as it could have been. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story...

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Summary Judgment for Insurer on Construction Defect Claim Reversed

January 07, 2025 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit reversed the district court's granting of summary judgment to the insurer on a construction defect claim asserted against the insured. TIG Ins. Co. v. Woodsboro Farmers Cooperative, 2024 U.S. App. LEXIS 24003 (5th Cir. Sept. 20, 2024). In March 2013, Woodsboro Farmers Cooperative contracted with E.F. Erwin, Inc. to construct two Brock 105' diameter grain silos. Erwin hired subcontract AJ Constructors, Inc. (AJC) to construct the silos. Erwin was responsible for supervising the work. Brock silos were kits shipped by the manufacturer and then assembled according to the manufacturer's manuals and specifications. The silos are constructed section by section. AJC began erecting the silos in May 2013 and completed its work in June or early July. Erwin occasionally inspected the work and found the silos were structurally sound and not defective. AJC left the job site after completing the assembly. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Traub Lieberman Attorneys Recognized as 2024 New York – Metro Super Lawyers®

November 11, 2024 — Traub Lieberman
Traub Lieberman is pleased to announce that seven Partners from the Hawthorne, NY office have been selected to the 2024 New York - Metro Super Lawyers list. 2024 New York – Metro Super Lawyers

• Copernicus Gaza – Insurance Coverage
• Jonathan Harwood – Professional Liability
• Lisa Rolle – Construction Litigation
• Hillary Raimondi – Employment Litigation
• Christopher Russo – Professional Liability
• Lisa Shrewsberry – Professional Liability
• Stephen Straus – Insurance Coverage

Lisa Shrewsberry was also selected to the Top 25: 2024 Westchester County Super Lawyers® list. Read the full story...
Reprinted courtesy of Traub Lieberman

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What Every Project Participant Needs to Know About Delay Claims

August 05, 2024 — Andrew G. Vicknair - The Dispute Resolver
A “delay” on a construction project is defined as the stretching out of the time for completion of certain key milestone scopes of work which can impact the completion date of an entire project, due to some circumstances or events that were not reasonably anticipated when the project began. 2 Construction Law ¶ 6.01 (Matthew Bender, 2024). While delays can be caused by any number of events, the most common are defective plans and specifications; design changes; severe weather and other, similar unforeseeable events; unforeseen or differing site conditions; unavailability of materials or labor; labor inefficiencies or stoppages; contractor negligence; and owner influences, including construction changes or outright interference by the owner or its agents. If the project schedule is not recovered following a delay, then the project schedule will likely be extended, resulting in an increase in the contractor’s costs of performance. A contractor that has experienced a delay on a project can take certain actions to pursue recovery of any damages the contractor may have incurred. However, to do so it is important to understand the different types of delays and the methods for establishing the delays. I. Types of Delays Delays may be categorized as (1) critical versus non-critical delays, (2) excusable versus non-excusable delays, and (3) compensable versus non-compensable delays. A critical delay is a delay that affects the project completion date and delays the entire project. In essence, a critical delay is one that will extend the critical path of a project. A non-critical delay is a delay that has no effect on the project’s critical path. Courts have recognized that delays to work not on the critical path will generally not delay the completion of a project. G.M. Shupe, Inc. v U.S., 5 Cl. Ct. 662, 728 (1984). Such a non-critical delay may affect the completion of certain activities, but does not affect the completion date of the entire project. In order for a delay to provide the basis for a claim for additional time or money, the delay must impact critical path activities on the project schedule. Read the full story...
Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

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A Win for Policyholders: Court Finds Flood Exclusion Inapplicable to Plumbing Leaks Caused by Hurricane Rainfall

October 21, 2024 — Kelly A. Johnson & Damian S. Barquin - Saxe Doernberger & Vita, P.C.
A recent decision by a federal court helps clear the path to coverage for property owners this hurricane season. The Court deemed one property policy’s flood exclusion inapplicable to bar coverage for water damage from backed-up drainage and overflow caused by excessive rainfall. The case, styled G.E.M.S. Partners LLC v. AmGUARD Ins. Co., — F.Supp. 3d —, No. CV 22-1664, 2024 WL 3568932 (D.N.J. July 29, 2024)), involved a familiar dispute between the insured and insurer following damage to covered property after a named storm’s heavy rainfall. Here, G.E.M.S. Partners LLC (“Insured”) obtained a commercial property policy from AmGUARD Insurance Company (“AmGUARD”) to cover three neighboring buildings in Union, New Jersey. In September 2021, intense rainfall from Hurricane Ida overwhelmed the local infrastructure and sewer system, leading to water leakage from plumbing fixtures at the insured property. To secure coverage under its AmGUARD policy, the Insured wisely relied on its “Water Back-Up and Sump Overflow Endorsement” (“Back-Up/Overflow Endorsement”). Under this endorsement, AmGUARD promised to “pay for ... damage ... caused by ... water ... which backs up through or overflows or is otherwise discharged from a sewer.”1 Indeed, a plumber that inspected the buildings following Hurricane Ida described the root cause of the water damage as a “back up” of “sewer ... water.”2 Reprinted courtesy of Kelly A. Johnson, Saxe Doernberger & Vita, P.C. and Damian S. Barquin, Saxe Doernberger & Vita, P.C. Ms. Johnson may be contacted at KJohnson@sdvlaw.com Mr. Barquin may be contacted at DBarquin@sdvlaw.com Read the full story...

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NYC Landlord Accused of Skirting Law With Rent-Free Months Offer

October 15, 2024 — Natalie Wong - Bloomberg
The opening of Tower 28, one of the tallest residential towers in New York City outside Manhattan, brought rent-stabilized units to Long Island City roughly seven years ago, adding affordable listings to a neighborhood where soaring prices were increasingly squeezing out many renters. Now, three tenants at the 58-story building have filed a class-action lawsuit alleging the landlord sought to evade New York City rent regulations in order to raise prices even higher over time. The lawsuit against the limited liability company tied to 42-12 28th St. in Queens claims that the property owner recorded initial rents with the New York State Division of Housing and Community Renewal that were higher than what the first tenant was actually charged and paid. In doing so, any future rent increases were based off a higher figure, according to the lawsuit. Read the full story...
Reprinted courtesy of Natalie Wong, Bloomberg

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Changes to Judicial Selection in Mexico Create a New Case for Contractual ADR Provisions

November 25, 2024 — Juan Pablo Sandoval - The Dispute Resolver
The Mexican Congress recently discussed and approved a Constitutional Amendment called the “Judiciary Amendment” which was ironically published in the Official Gazette on September 15, 2024, the day before Mexican Independence Day. With this Judiciary Amendment, the Mexican Congress determined that Federal Judges, Federal Magisters and the Ministers of the Supreme Court will now be elected through direct and popular election. Before the Judiciary Amendment, Federal Judges and Magisters used to have a judicial career; many of them started as law clerks and were promoted step by step until becoming Judge or Magister. Ministers of the Supreme Court were appointed by the Senate through an election of three candidates designated by the President. Read the full story...
Reprinted courtesy of Juan Pablo Sandoval, COMAD, S.C.
Mr. Sandoval may be contacted at jpsandoval@comad.com.mx

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