Oregon Case Allowing Building Code Negligence Claim Under Review

A few months ago, we wrote about an appeals decision in Oregon that carved an exception to the economic loss rule in a construction defect case, allowing a plaintiff to sue for negligence when a builder doesn’t comply with building codes.

That opinion – Abraham v. T. Henry Construction, Inc., 230 Or.App. 564 (2009) – has been sent to the Oregon Supreme Court for review, and oral arguments were heard last month. You can read the Oregon Supreme Court’s media release here. The media release does a great job of outlining the issues at stake in the case.

The two issues of particular interest to the state’s application of the economic loss rule are identified in the media release as so:

  1. If a property owner alleges that his or her contractor violated the “building code,” whether the property owner has a negligence claim when the contract between the parties expressly required the contractor to follow all building codes.
  2. Whether the Oregon Residential Building Code sets forth a standard of care independent from the contract between a property owner and a contractor or subcontractor, and thus permits imposition of negligence liability, when the parties’ contract expressly requires compliance with all building codes.

Stay tuned at the Construction Law Monitor, as we’ll monitor the outcome of this case.

Building Code Seminiar Keynote Slides

Thanks to everyone who came out to the Building Codes seminar today, sponsored by Lorman Education Services. I learned a lot from the panel of speakers, and enjoyed giving my presentation on the Enforcement of Building Codes and Contractual Consequences of Violations.

My slides from the Keynote presentation are available on my SlideShare.com account, and are embedded here:

Washington Supreme Court Blog Review’s 2010 Docket

The Washington Supreme Court publishes an excellent blog that is frequently updated to provide readers with information about the justices and their cases. While a lot of their docket is review of criminal decisions and sentences, they do of course also review civil matter consequential to the construction industry. We highlighted one example just recently, when the Supreme Court overturned law disallowing contractual parties to waive judicial review of arbitration awards.

In any event, I was interested in a post last week that reviewed the Supreme Court’s 2010 docket, breaking down the voting tendencies of the justices and more. If you’re interested in Washington jurisprudence and the tendency of the state’s high court, check out the post and the great information therein.

Arbitration Review May Be Limited…But It Can’t Be Waived in Washington

The Washington Supreme Court wrote an opinion interpreting the Washington Arbitration Act last week in Optimer Int’l, Inc. v. RP Bellevue, LLC.

In this case, a landlord and tenant submitted themselves to an arbitration proceeding pursuant to their contract, and the loser at arbitration wasn’t satisfied with the award. They sought judicial review of the holding in superior court, and were denied this review at the trial and appellate level because of a clause within the contract’s arbitration provisions that “waived” the right to appeal any arbitration award.

The appellant and Supreme Court ruled that the “waiver” did not – and can not  – waive the right to seek judicial review of an arbitration award as statutorily allowed by the Washington Arbitration Act.

To the extent this ruling contradicts a previous appellant case, Harvey v. University of Washington, 118 Wn. App. 315, 76 P.3d, the Washington Supreme Court said that this case is overruled.

The limitations of the ruling in Optimer Int’l is important.

  1. The case construes the Washington Arbitration Act, because that is the law in place when the arbitration took place. However, this has been replaced with the Revised Uniform Arbitration Act (RUAA), which the Supreme Court indicated they need not consider.
  2. The review allowed by the Washington Arbitration Act is very limited, allowing review for only specific errors with the award (fraud, bias, etc.).

While this case does not address the RUAA, I would think we’d get a similar result under the new statutory scheme.

Lien Bill Introduced in Washington Legislature To Offset Williams v Athletic Field

Williams v. Athletic’s Field took the Washington mechanic lien world by storm last year, when it declared a mechanic lien invalid even though the claimant used the specific form provided by the statute. We’ve written about this opinion at length on this blog, and noted that the decision is now being reviewed by the Washington Supreme Court.

Today, Representative Moeller introduced a bill “addressing the notice requirements for claiming a mechanics’ or materialmen’s lien,” leapfrogging the Washington Supreme Court to legislatively address the impact of Athletic’s Field. House Bill 1475 can be viewed here. It’s schedule for public hearing in the House Committee on Labor & Workforce Development on January 28th.

Read the original text of the bill here.

The proposed changes are quite simple. When setting forth the statutory form for acknowledgment, the proposed bill would separately provide acknowledgment language for individuals and corporations.

The acknowledgment language that currently exists in the law should be used for “An acknowledgment for an individual claimant, an attorney of an individual claimant, or the administrator, representative, or agent of the trustees of an employee benefit plan…”

For a corporate claimant, the following acknowledgment language is provided in the bill:

_________, being sworn, says: I am the present (or vice president, secretary, treasurer, or other authorized officer or agent, as the case may be) of _________ that executed the claim of a lien, and I acknowledge this claim to be the free and voluntary act and deed of the corporation, for the uses and purposes therein mentioned; I am authorized to execute this claim and the seal affixed is the corporate seal of the corporation; I have read or heard the forgoing claim, read and know the contents thereof, and believe the same to be true and correct and that the claim of lien is not frivolous and is made with reasonable cause, and is not clearly excessive under penalty of perjury.

The law also provides that a party or entity that is not specifically identified in the statute with associated acknowledgment language “shall modify the pattern form to comply with the acknowledgment requirements pursuant to chapter 64.08 RCW”

If passed, the act would take effect on January 1, 2012. We’ll monitor and update you on the status of this act.

Solar Panels Now Allowed in New Orleans Historic French Quarter?

Last week, the New Orleans City Council voted to approve the installation of solar panels on a home in the city’s historic French Quarter. This would seem to be  no-brainer for the city, which is one of America’s 20 Solar Cities and has pushed solar energy with tax credits and other programs, but it was only allowed after some controversy. (See Solar Energy tag).

The vote of the city council was on appeal from the homeowner, after his request to install the solar panels was denied by the Vieux Carre Commission. The commission complained that the solar panels are outside the “soul and character” of the French Quarter.

Green building technologies and the industry has a whole certainly has its challenges, and we’ve discussed them in the past on this blog. This situation, however, presents an interesting issue confronting those in the green building industry that we really haven’t previously discussed: Successfully getting through homeowner associations and municipal control with energy efficiency equipment that just isn’t very pretty.

As far as popular support goes, it seems to be in the corner of progress and incorporation of this technology. Nola.com ran a poll asking readers whether the solar panels should have been allowed, and as of this writing, 76.88% of people said yes (372 votes, poll here).

It will be interesting to see more of these situations pop-up across the country, and not just involving municipalities, but also involving homeowner and condominium associations. When a municipality or homeowners association denies a request for incorporation of these technologies, will the property owner have a remedy in law to force acceptance?

Insofar as this decision, it appears to only concern the one property petitioned. As such, there is no blanket rule allowing solar panels in the French Quarter, and the next resident will first have to go to the Vieux Carre Commission and their obvious disposition to deny the request. But, this is a welcoming precedent for those in the New Orleans solar market, and french quarter property owners.

How To Challenge An Unemployment Claim in Louisiana

When an employee is terminated and claims unemployment benefits in Louisiana, the claim is associated with your business’ account and will affect your unemployment insurance rates in the future. It’s no secret that people can abuse the unemployment benefits system. Unfortunately, the burden really falls on employers to prevent abuses.

In Louisiana, unemployment claims are administered by the Louisiana Workforce Commission. Whenever an employee is terminated, the employee will be entitled to receive benefits unless: (i) The employee was terminated for misconduct that makes them ineligible for benefits; or (ii) The employee voluntarily quit the employment.

La. R.S. 23:1601 explains what qualifies as “misconduct” or “voluntary termination.”

Misconduct means “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.”

Voluntary termination requires leaving an employment post “without good cause attributable to a substantial change made to the employment by the employer.”

If a former employee has applied for unemployment benefits and you contend that the employee does not qualify, you’ll need to provide the Louisiana Workforce Commission with sufficient information to justify your position. We’ve created an Avvo.com Legal Guide on this subject, giving you a step-by-step guide on how to challenge these unemployement claims.

Read the Avvo Legal Guide here. We’ve summarized the steps below.

  1. Determine Whether The Unemployment Claim Has Merit:  An obvious first step, as there’s no use in fighting an unemployment claim that is eligible for benefits.
  2. Pay Attention to Deadlines: The deadlines can be super short (10-15 days), and failing to meet a deadline is fatal to opposing a claim.
  3. Document Your Position: The more you provide to support your position, the better chance you have. Send your story to the commission in a letter, but also send statements, emails, photos, videos, documentation, payroll records, etc.
  4. Consider Hiring Counsel: If the going gets tough, you may want to hire an attorney to help prepare your position.

Upcoming Speaking Engagements on Building Codes & Going Solo

Speaking at Loyola Law Schools Skills Curriculum

In the next seven days, I’ll be speaking at two engagements. The first is available only to students at Loyola New Orleans College of Law, but the second is available to anyone in the New Orleans area through Lorman Seminars. Here are the details.

Loyola Law Schools Skills Curriculum
I’ll be visiting Loyola to teach a course through the school’s Skills Curriculum. The course – Solo from Scratch – teaches students how to open and run a solo practice right out of law school. I first taught the course in 2009, and I’m happy to be invited back to teach this semester. The course will be on Saturday, January 22, 2011, at 9:00 AM, at the Loyola New Orleans College of Law campus.

Building Codes – Lorman Seminars
This is a seminar organized by Lorman Education Services.  It will take place on January 26, 2011, at the Crown Plaza Hotel New Orleans Airport oat 2829 Williams Blvd, in Kenner, LA. The seminar is all-day, and you can register for the seminar and receive a 20% discount on registration with this information:

Building Codes (seminar information here)
January 26, 2011
Register Online: http://www.lorman.com or by phone (866) 352-9539
Discount Code: F2716129
Priority Code: 15000