Late last week, the U.S. Supreme Court declined to review the Ninth Circuit’s Western States decision. That decision, issued in May 2005, held that Washington’s implementation of the race-based preferences in the Transportation Equity Act of 1998 (TEA) was unconstitutional in violation of the Equal Protection Clause.
Monthly Archives: February 2006
Supreme Court Reaffirms Broad Scope of Arbitration Clause
Posted in ConstructionWhenever 8 of the 9 U.S. Supreme Court Justices vote the same way in a particular case, you can assume the issue is relatively free of doubt. And so it was with yesterday’s decision in which the Court held that an arbitration clause contained in a contract that may be void on some basis (such… Continue Reading
Oregon’s Measure 37 Upheld by Supreme Court
Posted in Land UseThis decision today by Oregon’s Supreme Court to uphold the validity of property rights Measure 37 will certainly add some fuel to the Farm Bureau’s push for a similar initiative in Washington.
Supreme Court Hears Ergonomics Dispute Over Scope of Initiative 841
Posted in ConstructionWashington voters in 2003 approved Initiative 841, which repealed workplace ergonomics rules issued by the Department of Labor & Industries (L&I). The AGC and other industry organizations were heavily involved in the campaign. Last week, the Supreme Court took up the issue of how far I-841 went. In this case, (SuperValu Holdings, Inc. v. Dep’t… Continue Reading
Ambiguous Specification Claim Fails for Lack of Reliance Evidence
Posted in ConstructionThis new ASBCA case stemming from a Bremerton project is pretty dense to read (so what’s new about ASBCA decisions?), but it contains a valuable legal nugget toward the end: merely proving that a bid specification is ambiguous is not enough to obtain compensation from the government – the claimant must in addition demonstrate “reliance”… Continue Reading
City Seeks to “Condemn” Brewery Water Rights
Posted in ConstructionThe re-development project at the old Olympia brewery in Tumwater has taken an interesting twist, as the City of Olympia has filed suit to condemn the property owner’s water rights of 12 to 14 million gallons/day. From the Olympian: Condemnation for a water right is rare, said Tom Loranger, a water resources manager at the… Continue Reading
Pipeline Company Didn’t “Waive” Preemption Defense by Executing Franchise Agreement with City of Seattle
Posted in ConstructionToward the end of this opinion (in which the 9th Circuit forbids the City of Seattle from regulating the Olympic Pipeline), there’s an obscure but interesting holding which should be a note of caution to public owners transacting with federally regulated entities such as pipelines: executing a franchise agreement (and thereby agreeing to submit to… Continue Reading
9th Circuit: Crane Company’s Payment Action Barred by Statute of Limitations
Posted in ConstructionDecided in diversity under Alaska’s three-year limitation period for breach of contract, this case provides general guidance on three asserted exceptions to the commencement of the statute of limitations. A crane company missed the statute by bringing suit three and 1/2 years after terminating service to a hotel project. It raised — and the 9th… Continue Reading
Mike Johnson Bill Dies in Committee
Posted in ConstructionThis year’s attempt to repeal the Mike Johnson decision has died in committee. Mike Johnson held that contractual notice provisions are to be strictly enforced regardless of prejudice to the owner, unless the owner has waived enforcement of the notice provision.
Warranty Clause in Subcontract Is Not Exclusive Remedy; GC Allowed to Sue on Breach of Contract Theory
Posted in ConstructionIn contract law, a warranty is a different breed of cat. To prevail, one generally need only prove the the work was defective. The focus is upon the end result itself, not whether the installer or subcontractor breached the details of a contract provison or specification. Breach of contract claims, by contrast, depend upon proof… Continue Reading
Slang of the Day
Posted in ConstructionOK, after a lot of heavy stuff this week, we deserve something on the lighter side. Here’s a link for the humor collection, a potpourri of industry slang which ranges from the useful to the bizarre. Cranial disharmony? Cloon?
Challenge to CWA Dredging Regulation Allowed to Proceed
Posted in ConstructionThere’s no telling how this suit will ultimately turn out, but at least this broad-based industry challenge to some new Clean Water Act regulations jointly developed by EPA and the Corps will be heard on its merits, according to this opinion handed down February 3d by the D.C. Circuit. It seems EPA and the Corps… Continue Reading
How Far Does Spearin Go?
Posted in ConstructionThe U.S. Supreme Court’s decision in the 1918 case of Spearin v. U.S. remains one of the landmark construction law cases. In rough terms, it stands for the rule that an owner, by sponsoring a set of plans, makes an implied warranty to the builder that the plans are adequate for their intended purpose. The… Continue Reading
Architect Wins Summary Judgment in Opinion by New Chief Justice
Posted in ConstructionIf this case is any indication, architects and engineers have a receptive audience in the new Chief Justice, John Roberts. While sitting on the D.C. Circuit last year, he wrote an opinion affirming summary judgment dismissal of claims by owner against an architect over alleged defects in an HVAC system. The basis of the ruling… Continue Reading
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