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Miller Act Recovery Can Depend Upon Whether the Claimant is a "Subcontractor" or "Supplier". (Federal Bond Claim)

  • Posted by John P. Ahlers
  • On February 29, 2008
The Miller Act provides recovery from the general contractor’s bond for only first and second tier claimants. A first-tier claimant is one who has a direct contract with the prime contractor, a second-tier claimant is a claimant who has a direct contract with the prime contractor’s (first tier) subcontractor. In a recent case, the Third Circuit provided […]

Mechanic's lien filing period not tolled indefinitely when claimant joins in another foreclosure action

  • Posted by Brett M. Hill
  • On February 29, 2008
Weathervane was a supplier to Woodstream Construction, the general contractor for the Van Wolvelaeres on a substantial remodel of the Van Wolvelaeres home.  Weathervane last supplied windows to the project on August 8, 2003.  The Van Wolvelaeres got into a payment dispute with Woodstream and for some reason Weathervane was never paid for the windows […]

Court of Appeals rules that additional terms in paint supplier's invoices that materially alter the parties' agreement do not form a part of contract with purchaser

  • Posted by Brett M. Hill
  • On February 28, 2008
In Tacoma Fixture Co. v. Rudd Co., the issue was whether additional terms in an invoice provided by a supplier of goods became a part of the parties’ agreement under the Uniform Commercial Code (“UCC”).  Tacoma Fixture regularly ordered paint and varnish products from Rudd Company (“Rudd”) for its cabinet manufacturing business.  Rudd shipped the […]

General Contractor's Failure to Send Subcontractor a Subcontract Which Met the Terms of the Subcontractor's Quotation, Prevented the General Contractor From Recovering Under Promissory Estoppel

  • Posted by mattb
  • On February 27, 2008
The general rule in construction contracts is that if a prime contractor relies upon a subcontractor’s bid, and incorporates the subcontractor’s quote in its bid to the owner, the subcontractor may not withdraw its bid for a reasonable period of time after the prime contractor’s bid has been accepted by the owner. In a case […]

Court of Appeals rules on wages required for electrical workers on public projects

  • Posted by Brett M. Hill
  • On February 27, 2008
  This case involved a question of whether employees for D.W. Close and Burke Electric (“Employers”) who installed low voltage wiring during the construction of McCaw Hall were required to be paid the prevailing wages of “inside wiremen” as defined under the Washington Administrative Code.  The Employers argued that the work performed by the employees […]

Delays by a Contractor’s Supplier Do Not Fall Within the Prime Contract’s Force Majeure Clause

  • Posted by John P. Ahlers
  • On February 26, 2008
During the construction of a tower and fiber optic line, the contractor was delayed by its supplier, causing the contractor to incur an assessment of liquidated damages. The prime contract force majeure clause defined a force majeure event as: “Any reasonable delay which is due exclusively to causes beyond the control and without the fault of […]

Owners Owe Implied Obligations During Construction of the Project in Addition to Express Contract Obligations

  • Posted by John P. Ahlers
  • On February 25, 2008
Owners and contractors should keep in mind that in addition to the obligations the construction owners assume is part of the express contract terms, there are certain implied obligations that arise during the design and construction of a project.  In many instances, contractors and owners are unaware of these implied obligations: (1)  the duty to […]

Court Endorses the "Measured Mile" Method of Calculating Contractor Inefficiency

  • Posted by John P. Ahlers
  • On February 25, 2008
The Pennsylvania Appeals Court recently endorsed the “measured mile” method as the preferred method of calculating loss of productivity damages. The court explained that this method compares the cost of completing work not subject to delay or acceleration, with the cost of completing the work during the period of impact. The work compared may not be exactly […]

Though the Contractor Conducted a Survey of Hazardous Materials and There Were No Objective Standards to Determine the Adequacy of the Survey, L&I Found as a Matter of Law That the Survey Was Not Performed in Good Faith and the Contractor Was Cited

  • Posted by John P. Ahlers
  • On February 25, 2008
Seattle Pacific University (“SPU”) engaged Prezant Associates, Inc. (“Prezant”) to identify all asbestos containing materials for abatement on the Miller Science Building.  The contractor, in its bid, agreed to perform the inspection in accordance with the Washington Administrative Code (WAC) and certain federal regulations (CFRs).  The contractor performed the survey and sampled vinyl flooring materials […]

Court of Appeals rules that one party cannot have unilateral right to select arbitrators

  • Posted by Brett M. Hill
  • On February 13, 2008
This week the Washington Court of Appeals ruled that arbitration clauses that provide only one party to the agreement the sole right to select the arbitrators are unenforceable.  The clause permitted one party to select arbitrators from its own affiliated entities.  Although the case arose out of a real estate brokerage contract the court’s holding […]