Archive for the ‘Washington’ Category

Washington Law Protects Contractors from Dangers of Frivolous Lien Statute

On July 19, 2011 Author By Wolfe Guest

A quick word from the construction law case files:

The Court of Appeals, Division 1, out in Washington state, has refused to deem a construction lien as frivolous based upon the complexity of the construction contract at dispute. The court in SD Deacon Corp. of Washington v. Gaston Bros. Excavating, Inc., decided back in May of 2009, that the state’s “frivolous lien” statute, coded under RCW 60.04.081, requires a more in-depth analysis of factual circumstances surrounding the substance of the contract and the lien.

The court in SD Deacon further reasoned that a court can only evaluate in a frivolous lien proceeding are, by way of example, whether the lien was properly filed, signed by the proper party, properly served, and meets the statutory form requirements. Issues of substance of the lien (i.e. the contract amount, amount due or change orders) are issues which require more substantive proceedings to analyze factual circumstances.

Because the frivolous lien procedure codified in RCW 60.04.081 does not provide for such proceedings, a party seeking to extinguish a lien filing will be unsuccessful in attempting to show to the court that the lien was frivolous.

Essentially, the court’s rule is that the “lien must be so devoid of merit that the claim has no possibility of succeeding” and that “there must be findings supporting the conclusion that the lien is invalid beyond legitimate dispute.”

The Court’s ruling provides some hope for “fringe” contractors who’s claims hold some element of uncertainty, but who desperately need the security provided by a lien in order to collect payment from an uphill contractor or owner.

The frivolous lien statute was enacted to prevent fraudulent claims against contractors, by awarding successful parties attorneys fees. The ruling in the case shows that the award of fees will not be granted unless your lien fails to meet statutory form requirements.

Posted in:     Filing Requirements, Mechanics Lien, Washington  /  Tags: ,   /   Leave a comment

Bizarre Lien Foreclosure Case May Have Far-Reaching Effects in Washington

On May 31, 2011 Author By Scott Wolfe Jr

A bizarre case from the Washington Division I Court of Appeals in Diversified Wood Recycling, Inc. v. Harold Johnson, et al. may have far-reaching consequences for claimants, property owners and construction attorneys foreclosing mechanic liens.

Until the opinion was published last week, Washington lien law seemed pretty clear on two points:

  1. When you file a lien, you can name the owner or reputed owner; but when you foreclose the lien, the foreclosure must be against the actual owner; and
  2. The owner must be named a party in the foreclosure action.

Division I in Diversified Recycling finds to the contrary on both points, creating a previously non-existing tension between §60.04.141 and §60.04.171.

The decision is discussed in substantial detail on my other blog that focuses on mechanic lien laws, the Construction Lien Blog (published by Zlien).  Read the post here:  Foreclosing A Mechanic’s Lien in Washington Just Got More Confusing.

A lot of the Diversified Case has very limited applicability, as it arises out of a bizarre fact pattern. The trial judge even commented on how the situation would create a “hard to believe” bar exam question.  And because of the unique facts, it feels the trial and appeal court went out of their way to serve the ends of justice rather than allow injustice based on technicalities.

However, it will be very interesting to see what happens with this decision, and whether its appealed to the Washington Supreme Court. While Division I does not comment in their opinion about the liberal construction it affords the lien statutes, they certainly construed §60.04.141 and §60.04.171 liberally, in line with the approach in N. Coast Elect. Co. v. Ariz. Elec. Serv. (Wash. Division I. 8/23/2010) where they stated:

In the lien context…there is a strong statutory directive that “[the lien statutes]…be liberally construed to provide security for all parties intended to be protected by their provisions.” RCW 60.04.900….See, e.g. Northlake Concrete Prods., Inc. v. Wylie, 34 Wn.App. 810, 818, 663 P.2d 1380 (1983) (explaining the Legislature’s intent that “the lien laws shall be liberally construed with the view to effecting their object” meant that “when it has been determined that persons come within the operation of the act it will be liberally applied to them.”

As any student of Washington construction law (and construction lien law) knows, there is a lien law battle being waged in the Washington Supreme Court over whether strict or liberal construction of these statutes should prevail in the controversial Williams v. Athletics’s Field matter.

I’m sure there is more to come on all of this soon.

Posted in:     Mechanics Lien, Washington  /  Tags: , , , , , ,   /   Leave a comment

Tokyo Buildings Stand up to Quake

On March 14, 2011 Author By Seth Smiley

Over the weekend much of the world gazed horrifically at the sights coming out of Japan in the wake if the 8.9 magnitude earthquake and subsequent tsunamis. One of the amazing and hopeful sights was to see that the buildings in Tokyo and other cities lived up to the “bend but don’t break” motto.

Shocking video taken shows that the buildings did just as designed and withstood the earth’s movement. Japan is an area of the world that has dealt with numerous earthquakes in its past, therefore has adapted very stringent building codes. These undoubtedly saved lives this weekend.

Apparently, in 1979 and 2000 Japan made monumental changes in its building codes which made buildings all the more safe. Buildings built after these changes even advertise as to higher safety and citizens pay a higher premium to live there.

Engineering experts say that the buildings performed just as designed. Some are designed to sway just as a tall tree in the wind. The foundations of skyscrapers are constructed upon steel and rubber shock absorbers which allow for the buildings to move along with the earth.

The New York Times posted a very informative article on how the Japanese government has made attempts to prevent disaster effects and make its citizens safer.

Strict building codes are in place for a reason and governments should constantly be looking for new technology to help make our lives safer and more efficient. For earthquake prone areas like the U.S. west coast, the weekend events should be a big learning lesson.

Posted in:     Around The Web, Construction News, Washington  /  Tags: , ,   /   Leave a comment

Residential Sprinkler Bill Resurrected in Washington House

On March 2, 2011 Author By Scott Wolfe Jr

Two years ago we wrote a blog post about 2009 House Bill 2224, introduced in Olympia by Representative Simpson, and aimed to “eradicate barriers that prevent the voluntary installation of sprinkler systems in private residences by promoting education regarding the effectiveness of residential fire sprinklers.”

While the bill had a lot of support in the House and Senate (see voting history here), it never got to the governor’s desk, and largely fizzled out.

The concept is back from the dead, however, being introduced on January 18, 2011, by Representative Van De Wege as 2011 House Bill 1295. Compare this bill’s synopsis with the 2009 summary:

…to eliminate barriers to the voluntary installation of sprinkler systems in private residences. The bill provides financial and regulatory incentives to homeowners, builders, and water purveyors for voluntarily installing the systems. It also exempts a public water system from liability for damages resulting from shutting off water to a residential home with an installed fire sprinkler system.

It’s virtually identical.

The 2011 Bill appears to be moving through the chambers a bit more quickly than its 2009 counterpart, and also has a companion bill in the Senate’s chambers (SB 5206).

Nationwide, residential fire sprinklers are getting more popular, and it’s becoming more and more likely that government regulation over these installations will expand as time goes on. Take, for example, what the U.S. Fire Administration (through FEMA) states as follows on the topic:

It is the official position of the U.S. Fire Administration that all American should be protected against death, injury and property loss resulting from fire in their residences. All homes should be equipped with smoke alarms and automatic fire sprinklers…

We’ll keep you posted on any progress to this legislation.

Posted in:     Building Codes, Regulations, Washington  /  Tags: , ,   /   Leave a comment

Washington Supreme Court Blog Review’s 2010 Docket

On January 25, 2011 Author By Scott Wolfe Jr

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.

Posted in:     Washington  /  Tags: ,   /   2 Comments
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