No doubt, the economic downturn has affected the construction industry in many ways. One problem is that some overstretched contractors are not paying their subs from the money they receive from building owners. Not surprisingly, subcontractors have been busy filing liens, and usually recovering on them. What can owners do who are forced to pay twice (to the… Continue Reading
Tag Archives: Evidence & Procedure
Coverage Denied in Condo “Decay” Case
Posted in ConstructionHere, a jury rejected a condo developer’s case against its property insurer (Safeco) for decay to the structure due to rainwater infiltration caused by poor construction & Division One affirmed because: The ultimate loss — decay to the building — was an excluded loss, and therefore the ensuing loss doctrine did not apply. The “collapse”… Continue Reading
Email Discovery “Monstrosity”
Posted in ConstructionYet another example of the discovery quagmire created by widespread email use on construction projects. Here, in producing more than 3,000 emails, the attachments to the emails were separated from the emails due to some type of software incompatibility. This snafu gave rise to a heated discovery battle over whether the owner had to re-produced the… Continue Reading
Breach Without Damage? Court Holds Suit May Be Dismissed
Posted in ConstructionWith the rise of condo defect cases came the phenomenon of claims based on technical violations of plans or applicable codes without much in the way of resulting damage to the structure. This case sheds some light on whether a plaintiff can still maintain a breach of contract action for money recovery under these circumstances. The… Continue Reading
Court Rejects Opinion Testimony Offered by Prof. Nash
Posted in ConstructionCharacterizing his expert report as “legal argument dressed as expert testimony”, the U.S. Court of Federal Claims held that Prof. Ralph Nash of Georgetown University, a leading government contracts expert and prolific author, won’t be permitted to testify as to his legal opinions in a patent infringement case. The opinion contains an excellent summary of the… Continue Reading
Expert Testimony Can’t Be Offered under Catch-All Clause in ER 904
Posted in ConstructionThis case revolved around a claim that tile installed in a project lacked the color uniformity required by industry custom. To prove lack of uniformity, the plaintiff offered — and the trial court allowed — an expert report submitted on the eve of trial under ER 904(6), which governs the admissibility of routine documentary records such… Continue Reading
Division 2 Rejects Spoliation Claim in EIFS Defect Case
Posted in ConstructionThe GC’s insurance company settled a stucco defect claim by paying the owner $318,000 which the owner promptly used to tear down the existing house (and EIFS) and dispose of the “evidence” to make way for the new home. In response to the carrier’s subrogation suit, the responsible subcontractor filed for summary judgment on the… Continue Reading
“Daubert on the Web”
Posted in ConstructionHere’s an interesting resource for keeping up with recent decisions affecting the admissibility of expert testimony — Daubert on the Web — including testimony offered by engineers and architects. These folks also offer a daily blog of recent Rule 702 decisions and developments, which looks quite helpful as well.
Claim “Summary” Ruled Inadmissible under ER 1006
Posted in ConstructionA contractor hired by the federal government to expand a levee in Louisiana requested an equitable adjustment to its contract for extra labor and material costs. The claim was written by an outside consultant who lacked personal knowledge of the events. The goverment brought a pretrial motion in limine to exclude the consultant’s claim, arguing… Continue Reading
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