Regulations 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.

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.

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?”

Cool Roofing

Choosing a roofing type specifically for a flat roof is not an easy task for the uninformed. Over the past several years, there has been a push for lighter colored (cool) roofing. Cool roofing is a hot topic when it comes to designing or replacing your home’s or commercial building’s roofing. It is often considered because:

designers and owners like the many color options beyond dark colored asphalt roofs
many quality cool roofing products are offered
ease of installation
easily repaired
long term material warranties
relief of heat island effect above roofs

So, what is not so cool about cool roofing? Through testing, field observations and published articles, roofing consultants and manufacturers are aware of a higher probability of condensation as a result of greater air temperature differences between joist cavities and the surface of the roofing. Under these conditions there is an increased and prolonged ability for moisture to form under the roofing and in joist cavities.

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).

2012 Washington State Energy Code

The 2012 Washington State Energy Code (WSEC) went into effect July 1, 2013. This new WSEC is now based on the 2012 International Energy Conservation Code with State amendments. For residential construction this means better air sealing of the exterior envelope, more efficient windows, tighter sealing of duct work, and more high-efficacy lighting fixtures, plus many other changes from the 2009 code.

As part of the building air tightness requirements, the code now allows the local building official to require an approved third party to inspect all components of air barrier system and verify compliance. Air leakage testing using the blower door method is also required after visual inspection of all sealing components. Test reports must be provided to the code official. Here again the local building official can require the testing be performed by an approved third party.

Duct work, air handlers and furnaces are all required to be sealed for air leakage. Similar to the 2009 WSEC, duct work is required to be leak tested by a qualified technician. Allowable duct leakage thresholds are stricter in the current code. Replacement of an existing furnace, air handling unit or air conditioning unit also triggers the duct testing requirement of the duct system connected to the new or replacement equipment.

Washington State Construction Codes Update

The 2012 International Code Council (ICC) Model Building codes for commercial and residential construction projects have been reviewed, revised and adopted by the State Building Code Council in Washington. These Codes are revised every three years following the ICC 3-year revision cycle. The select codes currently in use in most Washington jurisdictions are the 2009 International Building Code (IBC) and the International Residential Code (IRC).

Washington’s State Building Code Council (SBCC), along with its Technical Advisory Group, reviews the ICC model codes, holds public hearings, and makes the final determination on acceptance. Public hearings for amending the 2009 Codes to the 2012 version have already occurred and the SBCC has completed its adoption process. The 2012 Codes will be effective July 1, 2013.

Following is a list of some of the new revisions found in the 2012 WA State Building Code.

R302, Fire resistant construction requires fire protection at five-foot separation from lot lines.

Job Safety – New Directives

Two recent safety directives specific to residential construction projects in Washington State affect contractors and homeowners and are critical to safety on jobsites.

OSHA

The Occupational Safety and Health Administration states that fatalities from falls are the number one cause of workplace death in construction. Over 15 years ago OSHA determined that workers who are six feet or more above lower levels are at risk for serious injury or death if they should fall. They mandated that to protect these workers employers must provide fall protection and appropriate equipment for the job, including ladders, scaffolds and safety gear. In 1998 OSHA issued standard STD 03-00-001, its Interim Fall Protection Compliance Guidelines for Residential Construction, which permitted employers engaged in certain residential construction projects to use specified alternative methods for fall protection, such as slide guards or safety monitor systems rather than conventional fall protection such as guardrails, safety nets or personal fall arrest systems. Now this standard for fall protection is under review, with a deadline of March 15, 2013 to revise it. When adopted, the new standard (STD 03-11-002) will likely establish that workers engaged in residential construction six feet or more above lower levels must be protected by conventional fall protection with guardrails, safety nets, personal fall arrest systems or similar methods found within the guidelines. Some alternative methods will be allowed if demonstrated and approved.

To follow this pending fall safety revision and subsequent training information go to http://www.osha.gov. Washington State’s regulations can be found on Washington’s Labor and Industries website at http://www.lni.wa.gov/safety/topics/atoz/topic.asp?KWID=108.

DOSH

The Division of Occupational Safety and Health in the State of Washington (DOSH) has revised the Washington Regional Directive (WRD) 1.19, titled Homeowners as General Contractors. This Directive dated July 3, 2012 affects homeowners who “are acting as the general contractor…in building their own homes”.