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March 2018

Construction Law Update

First Quarter 2018

Gordon & Rees's Construction Group is pleased to publish the latest issue of our Construction Law Update, a quarterly take on trends of interest to design professionals, contractors, and developers throughout the country.

INSIDE THIS ISSUE
  1. Significant Change to Texas Responsible Third Party Procedure Benefits Defendants

  2. WHO DO YOU SUE TO GET PAID? Washington Supreme Court Clarifies Necessary Party Requirements for Foreclosing on a Construction Lien Release Bond

  3. California Supreme Court Confirms the Right to Repair Act as the Exclusive Remedy for Seeking Relief for Defects in New Residential Construction

  4. Gordon & Rees Construction Attorneys Making Headlines

  5. Gordon & Rees Construction Law Blog

  6. About Gordon & Rees's Construction Group

I. Significant Change to Texas Responsible Third Party Procedure Benefits Defendants
     
  By Soña J. Garcia
   

Texas’ proportionate responsibility statute has long afforded defendants in tort cases, including design and construction defendants, the opportunity to “try the empty chair” by utilizing the Responsible Third Party Designation procedure. Texas Civil Practices and Remedies Code Section 33.004 allows a defendant in tort cases to seek to designate a person as a responsible third party by filing a motion for leave to designate that person on or before the 60th day before the trial date unless the court finds good cause for a motion to be filed at a later date. A responsible third party is any person who is alleged to have caused or contributed to the harm for which recovery of damages is sought whether by negligence, any defective or unreasonably dangerous product, or other conduct or activity that violates an applicable legal standard. A person can be a responsible third party even if the statute of limitations has run against them, if they are outside the court’s jurisdiction, are unknown criminals, or bankrupt persons. The designated responsible third party then appears on the jury charge along with each claimant, each defendant, and each settling person for the jury to apportion percentage of liability, but, the responsible third party is not formally joined to the proceedings.

To read a full, expanded version of this article, click here.

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II. WHO DO YOU SUE TO GET PAID? Washington Supreme Court Clarifies Necessary Party Requirements for Foreclosing on a Construction Lien Release Bond
     
  By John V. Leary
   

Last month, in Inland Empire Dry Wall Supply Co. v. Western Surety Co., Case No. 9411-1 (Jan 18, 2018), the Washington Supreme Court, clarified who is an indispensable party in a construction lien foreclosure action when a lien release bond is involved. Interpreting RCW Chapter 60.04, Washington’s mechanic’s lien statute, the Supreme Court held that the surety who issued the lien release bond is the only necessary party to the action; neither the property owner or the general contractor – even if they may be the bond’s principal who purchased the bond – are not indispensable parties in a foreclosure action against the surety of the lien release bond.

To read a full, expanded version of this article, click here.

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III. California Supreme Court Confirms the Right to Repair Act as the Exclusive Remedy for Seeking Relief for Defects in New Residential Construction
     
By Brenda K. Radmacher and Simrandeep S. Tiwana
   

The California Supreme Court recently issued its decision on a critical issue in the residential construction industry – the claims for construction defects that a California homeowner can bring against a builder or seller of new residential properties in California.

Holding

In McMillin Albany v. The Superior Court of Kern County, the Court held that California’s Right to Repair Act (California Civil Code, sections 895, et seq.) (the “Act”) is the exclusive remedy for homeowners claiming defective construction of new residences in California.

To read a full, expanded version of this article, click here.

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IV. Gordon & Rees Construction Attorneys Making Headlines

Hartford Partner Cullen Guilmartin obtained a defense judgment after trial for the firm's client, a soil remediation contractor, in Connecticut Superior Court.

The plaintiff, the head of the bank and finance practice group at Latham & Watkins, alleged that the defendant, a licensed environmental professional, did not properly oversee or document the removal of an underground storage tank located on a property the plaintiff purchased. The plaintiff further alleged that more than 100 tons of soil had to be removed after he demolished the existing foundation and that the defendant did not adequately disclose the remaining contamination in its remediation report. Read More
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Los Angeles Partner Brenda Radmacher presented on the use of drones in construction with Michelle Yates of Sundt Construction for the ABA Forum on Construction, Division 5 (General Contractors) and to Division 13 (Government Contracts).

On January 18, 2018, Boston Partner Jay Gregory led a four-hour Mock Mediation for the Structural Engineers Association of Massachusetts. He enlisted a neutral from JAMS (a former Judge) to play the part of the mediator, convinced a friend from law school to play the other lawyer, and cast SEAMASS members in the roles of the plaintiff owner, the owner’s expert, the defendant engineer, the defendant’s expert, and the claims adjuster participating in the mediation by phone. The audience received CE credits for attending the presentation.

On March 8, 2018, Louisville Partner Angela Richie will present "What Fabricators Need to Know About Providing Early Involvement Pre-Construction Services versus Engaging in a Design-Assist Contract" at the Early Involvement & Marketing Workshop for the Structural Steel Industry for the American Institute of Steel Construction in Plainville, Massachusetts.

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V. Gordon & Rees Construction Law Blog

The Gordon & Rees Construction Law Blog continues to post new content addressing topical issues affecting the construction industry throughout the country. From analysis of new court decisions, discussions of timely legislation, and commentary on real-world, project-specific issues, Gordon & Rees’s Construction Law Blog provides insight on the issues that affect the construction industry now.

We invite you to visit the blog at www.grconstructionlawblog.com and see for yourself what we are up to. If you like what you see, do not hesitate to subscribe under the “Stay Connected” tab on the right side of the blog. There you can choose how you would like to be informed of new content (Twitter, LinkedIn, email, etc.). If you have any questions about the blog or would like to discuss further any of its content, please do not hesitate to contact us.

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VI. About Gordon & Rees's Construction Group

Gordon & Rees's Construction Group consists of more than 100 lawyers in 48 offices throughout the nation. The firm continues to expand, opening a new Louisville office in 2018 and nine new offices in 2017 which include Cincinnati, Cleveland, Lincoln, Milwaukee, Oklahoma City, Omaha, Providence, Salt Lake City, and Wilmington.

Gordon & Rees’s construction attorneys focus their practice on the comprehensive range of legal service required by all participants in the construction industry – architects, engineers, design professionals, design joint ventures, owners, developers, property managers, general contractors, subcontractors, material suppliers, product manufacturers, lenders, investors, state agencies, municipalities, and other affiliated consultants and service providers.

We serve clients who design, develop, or build all types of structures, including commercial buildings, single and multifamily residential projects, industrial facilities, universities, hospitals, museums, observatories, amusement parks, hotels, shopping centers, high-rise urban complexes, jails, airports, bridges, dams, and power plants. We also have been involved in projects for tunnels, freeways, light rail, railway stations, marinas, telecom systems, and earth-retention systems. Our experience includes private, public, and P3 construction projects.

If you have questions about this issue of the Construction Law Update or our nationwide construction practice, click here to visit our practice group page or contact partner Tom Cronin.

Thomas G. Cronin
Gordon Rees Scully Mansukhani
1 North Franklin
Suite 800
Chicago, IL 60606
(312) 980-6770
tcronin@grsm.com

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