Posts Tagged ‘Oregon’

Your Mechanics Lien Resource Treasure Trove

On June 23, 2011        

Mechanics Liens used to be a cornerstone topic on this blog; meaning I would write an article about filings, foreclosing and/or litigating a mechanics lien quite frequently. In fact, over the years I sort of consider myself a “lien guy.”  Insofar as construction law goes, mechanic lien and state or federal bond claims has sort of become my thing.

So, where has all of the mechanic lien posts gone?!

If you’re a reader of this blog but not my other blog – The Construction Lien Blog – you may be wondering.  But as you can gather from the blog’s title, a few years ago I created a separate blog focused on lien issues across the country, and post very regularly there on the topic.

As I exhaust the subject on that blog, and don’t to duplicate postings from there over here, most of my mechanic lien and bond claim talk is done on the Construction Lien Blog.  So, if you’re interest in lien laws (and if you are a construction participant or construction law person, lien laws are super important), I recommend you take a look at this other blog.

To give you a more direct path to relevant information, here are the articles posted on the construction lien laws in the states where Wolfe Law Group practices.

Also, be sure to check out these other resources providing through the lien and notice preparation and management company I founded in 2007, Zlien:

Posted in:     Around The Web, From The Experts, Mechanics Lien, Miller Act Claims, State Bond Claims  /  Tags: , , , , , , ,   /   2 Comments

Oregon Supreme Court Affirms Abraham And Dances With Economic Loss Rule

On March 15, 2011        

Over the past six months, we’ve posted about an Oregon case making its way up the court’s tiers: Abraham v. T. Henry Construction, Inc.

The case is important because it carved an exception to the economic loss rule, which typically prohibits a tort claim between contracting parties when the claims arises out of a failure to perform contractual obligations. In Abraham, a plaintiff in a construction defect case was allowed to sue its builder for negligence for failing to comply with the building codes. This despite the builder’s contractual obligation to comply with the building codes.

The Oregon Supreme Court accepted review at the Abraham decision at the dawn of this year, and just last week issued an opinion affirming it. An interesting quote explains the court’s conclusion:

[W]e agree with plaintiffs that…earlier cases support the conclusion that common law negligence principles apply — notwithstanding a contractual relationship — as long as the property damage for which the plaintiff seeks recovery was a reasonably foreseeable result of the defendant’s conduct. Thus, a negligence claim for personal injury or property damage that would exist in the absence of a contract will continue to exist unless the parties define their respective obligations and remedies in the contract to limit or foreclose such a claim. Parties may limit tort remedies by defining their obligations in such a way that the common-law standard of care has been supplanted…or, in some circumstances, by contractually limiting or specifying available remedies

Does this undermine the distinction between contract and tort and permit every breach of contract to be brought as a tort claim?  Or in other words, completely undermine the economic loss rule?  The Oregon Supreme Court digresses here with an example of why it’s decision is limited and does not undermine the ELR:

An example will help demonstrate the difference between actions taken in the performance of a contract that can be the basis for a contract claim only, and those that may also provide a basis for a tort claim. If an individual and a contractor enter into a contract to build a house, which provides that the contractor will install only copper pipe, but the contractor installs PVC pipe instead (assuming both kinds of pipe comply with the building code and the use of either would be consistent with the standard of care expected of contractors), that failure would be a breach of contract only. That is so because the contract defined the contractor’s obligation to use a particular material (and no other), which the contractor then failed to do…If the failure to install the copper pipe caused a reduction in the value of the house, the plaintiff would be able to recover that amount in an action for breach of contract. That would be a claim that, as this court stated in Georgetown, “is based solely on a breach of a provision in the contract[.]”

On the other hand, if the contractor installed the PVC pipe in a defective manner and those pipes therefore leaked, causing property damage to the house, the homeowner would have claims in both contract and tort. The homeowner could recover in contract both for the failure to install copper pipe and for the failure to perform the contract in a reasonably skillful manner.  The homeowner also would have a tort claim for property damage to the house caused by the leaking pipes if the homeowner could prove that the contractor’s failure to meet the standard of care caused the property damage. In those circumstances, the obligation to install copper instead of PVC pipe is purely contractual; the manner of installing the pipe, however, implicates both contract and tort because of the foreseeable risk of property damage that can result from improperly installed pipes.

Read the Oregon Supreme Court’s full opinion online by clicking here.

Posted in:     Oregon  /  Tags: , , ,   /   Leave a comment

Oregon Case Allowing Building Code Negligence Claim Under Review

On January 27, 2011        

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.

Posted in:     Building Codes, Oregon  /  Tags: , , ,   /   1 Comment

One License Enough for Joint Ventures in Washington and Oregon

On December 3, 2010        

A few months ago, I posted “Joint Ventures and Contractor Licensing – Not A Simple Topic,” which compared the regulation of joint ventures by construction licensing entities in Washington (one party to joint venture requires license) and Louisiana (all parties to joint venture require license).

I completely overlooked a recent change in the Oregon law related to licensing joint ventures.   A change in ORS §701.021 puts Oregon in Washington’s camp insofar as joint ventures are concerned.  Like in Washington, so long as a single member of the joint venture is licensed, the JV entity will be considered licensed.

The change took effect on July 1, 2010.  Read the full text of ORS §701.021 here. Read a great article discussing details of the changed statute from Steward Sokol & Gray LLC here.

Posted in:     Licensing, Oregon  /  Tags: , , ,   /   Leave a comment

Oregon Clarifies Statute of Limitations on Construction Breach of Contract Action As 6 Years…But Opens Door to Negligence Claims.

On November 23, 2010        

Two interesting decisions from the Oregon Courts of Appeals in 2008 and 2009 are indirectly related, and of interest to folks in the construction industry.

In the earlier decision, the Oregon court clarified the statute of limitations in a breach of contract claim for construct defects. Surprisingly, because of some ambiguity in two Oregon statutes, it has not been settled whether these suits were to be brought within 6 years from the date of breach, or ten.

The Court in Waxman v. Waxman & Associates, Inc. appears to have settled the rub, holding the claim must be brought within six years from the date of the breach – regardless of when the breach was or should have been discovered. 224 Or. App. 499, 198 P.3d 455 (Or. Ct. App. 2008).

Which leads us to a case the following year before the Oregon Court of Appeals, Abraham v. T. Henry Construction Inc., 230 Or. App. 564, 217 P.3d 212 (2009).

In this case, the plaintiffs brought suit against their contractors for breach of contract (defects) and negligence….8 years after the breach. As we just learned from the Waxman case, therefore, the breach of contract claims were prescribed, and the Abraham court found as such.

Interesting about this case, however, is that the negligence claims were allowed to proceed. This, despite application of the economic loss doctrine.

Typically, the economic loss doctrine will prohibit a tort claim between contracting parties when the claim arises out of a failure to perform contractual obligations. In other words, since negligence is a duty/care claim, one party must breach a standard of care….not simply a contractual obligation.

The plaintiffs in Abraham argued, however, that the contractors had breached a standard of care because it had violated the Oregon Building Code.  The Oregon Court of Appeals agreed that the Oregon Building Code did create a standard of care, and allowed the claim of negligence to proceed.

Posted in:     Building Codes, Litigation, Oregon  /  Tags: , , ,   /   Leave a comment
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