Codes Archives - Construction Dispute Resolution

When to Mediate, Arbitrate, or Litigate: Pros and Cons

Experts In Alternative Dispute Resolution - Construction Dispute Resolution

Disputes frequently arise in construction projects. While many steps can help prevent them, construction work is complex, and issues will inevitably occur. Disputes commonly arise around payment issues, delays, defects, or changes in scope. When these issues surface, choosing the right dispute resolution method is essential. Mediation, arbitration, and litigation each serve different purposes, and understanding their strengths and limitations can help save time, money, and business relationships.

Mediation is an agreed-upon process of dispute resolution in which an appointed third-party mediator assists the parties in negotiating a mutually acceptable outcome. It is generally the least formal of the three methods and is often used early in a dispute.

The role of the mediator can vary depending on the situation. The mediator may help facilitate direct negotiations, assist the parties in identifying core issues, or learn the facts and positions of each side and provide feedback. The mediator reviews the facts and offers an assessment or recommendation focusing on helping the parties reach a compromise by identifying bottom lines and aligning priorities. The mediator’s goal is to help the parties compromise toward a central point between their original positions, determine bottom lines, and encourage both sides to reconsider their priorities.

Handling Unforeseen Price Increases

Builders and subcontractors, do your contracts between you and your clients clearly state how unforeseen increases in material prices will be handled? According to an August 22, 2020 article by NAHB …”the recent spike in softwood lumber prices has caused the price of an average new single-family home to increase by $16,148 since April 17, according to NAHB standard estimates of lumber used to build the average home. Similarly, the market value of the average new multifamily home has increased by $6,107 over the same period due to the surge in lumber prices.”

This increase is calculated on the softwood lumber that goes into the average new home, such as any softwood used in structural framing (including beams, joists, headers, rafters and trusses), sheathing, flooring and underlayment, interior wall and ceiling finishing, cabinets, doors, windows, roofing, siding, soffit and fascia, and exterior features such as garages, porches, decks, railing, fences and landscape walls.

International Property Maintenance Code

The 2015 International Code Council (ICC) Model Building codes for commercial and residential construction projects include the International Property Management Code (IPMC), which is designed to provide “the standards for supplied utilities and facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupation and use; and the condemnation of buildings and structures unfit for human occupancy and use, and the demolition of such existing structures as herein provided.” This and all other ICC codes are revised every three years following the ICC 3-year revision cycle.

In Washington, the State Building Code Council (SBCC) and its Technical Advisory Group reviews the ICC Model codes, holds hearings, and makes the final determination on which codes they will adopt for the State of Washington. At the local level, individual jurisdictions often adopt and amend the Codes, tailoring them to their specific needs. However, we have found that in some jurisdictions, the International Property Maintenance Code (IPMC) may not be adopted in full or even at all.

Fall Protection – Residential Construction

Falls are the most common type of injury accident on construction projects. We typically see temporary guardrails installed at heights or workers wearing fall protection harnesses with lanyards on commercial projects, but how about residential construction? It’s not uncommon to see workers on residential construction and single family home projects working unprotected around fall hazards, so are safety regulations less stringent for residential versus commercial construction? No! Fall protection pertaining to any construction work is mandated by Washington Administrative Code (WAC) 296-155, Part C-1.

Fall protection requirements are not just for hazards above 10 feet high. Floor holes and floor openings regardless of height must be guarded. Fall protection is required at the height of 4 feet or more at open-sided walking/working surfaces as well as ramps. Work activity on high slope roofs (4:12 pitch or greater) where a fall hazard of 4 feet or more exists also requires fall protection. Where employees are exposed to fall hazards of 10 feet or more, fall protection is required, as well as a written fall protection work plan.

The compliant means of fall protection are addressed in WAC 296-155, Part C-1 and include:

Fall arrest systems – Stopped after the fall with a 6 foot maximum free fall distance

Personal fall arrest with full body harness and lanyards
Safety nets
Catch platforms

WISHA Compliance Extended To Homeowners

In 1990, the Washington Supreme Court held in Stute v. PBMC1 that a general contractor could be held liable for an injury to a subcontractor’s employee that occurred as a result of a WISHA violation committed by that employee. This rule (WRD 27.00) was subsequently extended to include any upper-tier subcontractor who, like a general contractor, has a non-delegable, specific duty to ensure compliance with all applicable WISHA regulations for “every employee on the jobsite,” not just its own employees.[1] A general or upper-tier contractor is deemed responsible for protecting workers on the jobsite, including “any employee who may be harmed by the employer’s violation of the safety rules.” [2]

Subsequent lawsuits since 1990 have worked vigorously to extend this duty also to owner/developers, landowners whose independent contractors fail to comply with safety and health regulations, and now property owners and other employers, depending on the degree of control exercised and whether they control or create a hazard. Examples of criteria for determining that a property owner falls under these regulations are:

The essence of the contract with the contractor (whether written or verbal) is the contractor’s personal labor
The homeowner is in some manner controlling or directing the contractor’s day-to-day activities such as:
Directing and/or supervising the contractor on how to do the work
Setting specific work hours, like workday start and end times, or lunch or rest breaks
Controlling how payment occurs, whether monetary or another form of compensation
Supplying materials, tools or equipment required to complete work activities.

On October 30, 2016, The Department of Labor and Industries expanded WRD 27.00. The basis for this expansive duty to ensure safety for all employees and non-employees on the jobsite arises from the top entity’s (general contractor, upper-tier contractor, owner, developer, landowner, etc.) “ innate supervisory authority,” which “constitutes sufficient control over the workplace.”[3] The law determines that this entity is in the best position, financially and structurally, to ensure WISHA compliance. Because this entity has authority to direct the working conditions on a construction site, they have ultimate responsibility under WISHA for job safety and health at the job site.

Ladders On The Job Site

We have all been around and used portable ladders on project job sites but have we been doing so in a safe and code compliant manner? Ladder safety violations are one of the top ten cited rule violations during L&I inspections. As an employer, one must have a competent person train all employees in the proper use of ladders. Commercially purchased ladders (which should have a label indicating ANSI compliance) as well as field built ladders must meet the design and construction requirements of ANSI A14 ladder standards.

Ladders must be inspected by a competent person when first put into service and periodically thereafter. Any structural damage to ladder components such as bent, broken, or split side rails and/or rungs renders the ladder as unusable. Note that a damaged or defective side rail of a commercially manufactured ladder cannot be repaired by the user.

Proper selection of a ladder for intended use is required. Nonconductive type ladders need to be used where exposed electrical hazards exist. Stepladders are to be used only in the fully opened position and not as a non-self-supporting portable single ladder.

Sidewalk Maintenance And Repair

Many of our residential neighborhoods and most municipal business districts have sidewalks along public right-of-ways providing public access throughout our communities. Commonly, sidewalks are constructed with public funding by municipalities or as part of private site developments. The general perception may be that maintenance and repair of these sidewalks is the responsibility of the city in which they are located, though this is not necessarily the case.

The Revised Code of Washington (RCW) Chapter 35.69 allows city councils to place the duty, burden, and expense of sidewalk maintenance and repair upon the property owner directly abutting the improvement. Several of our local cities including Seattle and Tacoma have adopted resolutions that require property owners to maintain sidewalks fit and safe for public travel. The Seattle Department of Transportation and Tacoma Public Works Department identify several conditions for sidewalk repairs including:

·        Height differential or separation greater than ½”
·        Cracks, separation, or hole greater than 1” in width
·        Any piece of sidewalk that can be moved with ordinary foot pressure
·        Undermined sidewalks

Marijuana – Washington’s Initiative 502

Washington is one of four States that allows recreational possession and use of marijuana. However under Federal law, marijuana remains a Schedule 1 substance under the Controlled Substances Act. That means that marijuana is in the same Schedule 1 category as Heroin, LSD, Mescaline, MDMA (ecstasy), GHB (date rape drug), and Quaaludes. In Washington, distribution of marijuana remains a federal offense. Additionally, civil asset forfeiture laws allow the Federal government to seize property allowing illegal activity.

Under Recreational Marijuana Initiative 502, only licensed growers can cultivate marijuana and create edible marijuana products. Therefore it is illegal for anyone under the age of 21 to possess or use marijuana, or for anyone 21 years or older to possess or use publicly or to cultivate marijuana even for their own use.

Nondisclosure in real estate transactions can result in civil litigation and result in monetary damages or rescission of sale. The Northwest multiple listing service (NW MLS) Seller Disclosure Form 17 # 7(J) asks “Has the property been used as an illegal drug manufacturing site?”

Staples In Underlayment Construction

The use of pneumatically driven staples has grown exponentially since the 1970s when compressors and nail and staple guns were introduced into the construction industry. Staples are frequently used in everything from interior cabinet box construction to application of the exterior shingles. What is frequently ignored is that staples vary in metal composition, gauge, crown width and length. The variety of staple types may seem confusing but there is no one-size-fits-all in construction.

Recently we were asked to defend a staple manufacturer when it was alleged that their staples were withdrawing from a substrate and damaging the finished flooring. In evidence was American Plywood Association (APA) rated subflooring and underlayment with staples that appeared to be backing out.

In the above referenced case, installers had used narrow crown staples to attach the APA underlayment prior to installing the finished floor. Most were apparently following the Component Panel Association (CPA) technical bulletins for Particle Board Underlayment Installation. The CPA does allow the use of staples to attach particleboard underlayment, as long as the panel subfloors are at least 19/32” thick with a minimum of 32/16 panel span rating (if not glued).

Homeowners Acting As General Contractor

There are many reasons why a homeowner may choose to act as the general contractor on a repair or remodel project for their home or even new construction of a residence. Often times the thought of saving the contractor’s overhead and markup expense warrants the decision, sometimes it’s the individual challenge to build it yourself. Whatever the reason, homeowners acting as the general contractor need to be aware of the potential liability they are accepting for the proper jobsite safety of all people working on or visiting the project site.

Construction safety in the State of Washington is governed by the Washington Industrial Safety and Health Act (WISHA) addressed in the Revised Code of Washington (RCW), Chapter 49.17 and the Washington Administrative Code (WAC), Chapter 296-155 Safety Standards for Construction Work. The rules and regulations for construction safety are stringent and somewhat complex with the underlying intent to provide a safe work place for all workers (employees). RCW 49.17.060 stipulates that each employer shall furnish to each of his or her employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees. The RCW as it relates to homeowners acting as general contractors defines “employer” in part as “any person, firm, corporation, partnership, business trust, legal representative or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is personal labor of such person or persons” (underlines added).