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Construction & Design

For several decades, Miller Nash Graham & Dunn's Construction Team has represented owners, developers, general contractors, design professionals, specialty contractors, suppliers, testing laboratories, and other professionals in the construction industry. We are proud to serve clients in a variety of industries, including healthcare, education, manufacturing, hospitality, gaming, government, and technology. Our experienced construction lawyers negotiate contracts for and litigate disputes for large and small construction projects across the country.

For our latest thoughts on construction law, visit our blog, From the Ground Up.

TRANSACTIONAL

We take pride in advising our clients on construction projects from inception to grand opening. Our transactional services include the following:

  • Legal Structural Advice. We advise our clients on the legal structures that are crucial to a successful project, including:
    • Project ownership structures (e.g., joint ventures, public-private partnerships)
    • Procurement regulation compliance (e.g., public contracting codes)
    • Project delivery methods (e.g., design-bid-build, design-build, CM/GC)
       
  • Procurement Documents. For public clients that are subject to procurement laws, and private clients that seek to establish policies and guidelines governing procurement efforts, we have professionals with extensive experience in preparing the following:
    • Requests for proposals (RFPs)
    • Invitations to bid (ITB) packages
    • Custom public and private procurement rules and guidelines
       
  • Contract Drafting and Negotiation. We have extensive experience with drafting and negotiating contracts for large and small construction projects, including: 
    • Fixed-fee and GMP construction contracts
    • Architect and engineer contracts
    • CM/GC contracts
    • Design-build contracts
    • Construction management agreements
    • Integrated project delivery agreements
    • Subcontracts
    • Supplier agreements, including custom
    • Engineer Procure Construct (EPC) contracts
       
  • Counseling and Guidance. We counsel our clients during various stages of design, preconstruction, and construction of their projects, including:
    • Insurance, bonding, and other risk allocation and management matters
    • Construction administration issues (e.g., payment applications, submittal reviews, completion certificates, and liens)
    • Audit of projects and claims
    • Code and regulatory issues

CLAIMS AND LITIGATION

We successfully negotiate and litigate a wide range of construction-related disputes, including:

  • Payment Claims, Delays, and Terminations. We regularly advise owners, general contractors, designers, and specialty contractors during projects when relationships have become strained. While we strive to get a project back on track, our focus is on protecting our client's rights. As necessary, we prosecute and defend all types of construction claims, including:
    • Payment claims
    • Liens and foreclosure actions
    • Terminations
    • Delay claims
    • Bond claims
       
  • Construction Defects. We prosecute and defend claims for breach of contract and negligent construction in connection with new construction or renovation work. We litigate a wide variety of construction-defect claims, including:
    • Water intrusion of all types
    • Concrete
    • Flooring
    • Window and door systems
    • Structural steel
    • Design deficiencies
    • Roof structures
    • Siding and framing
    • Mechanical, electrical, and plumbing
    • Energy efficiency
       
  • Product-Defect Litigation. Our team defends a variety of manufacturers of products used regularly in construction. Our extensive experience in defending product-defect claims includes the following:
    • Class action
    • Personal injury
    • Property damage
       
  • Insurance Claims. Potential claims against insurance carriers are part and parcel with construction claims. We regularly act as coverage counsel to many general contractors, specialty contractors, and design professionals that may also have insurance defense counsel defending the primary construction-defect claims. We advise clients on their rights as policyholders and, if necessary, bring claims against the carrier to provide a defense and to cover claims.
     
  • Professional Errors and Omissions. We represent design professionals and design-build contractors against claims for professional negligence.
     
  • Bid Protests. We have experience with handling federal, state, and local bid protests involving public procurements.

Representative Experience


Major Multiple Construction Defects:  Wyndham Resort Development Corp. v. Swinerton Builders Northwest, Inc.
Multimillion-dollar recovery in the largest private-sector construction-defect case in the history of the state at that time for The Resort at Seaside against a general contractor and 28 additional subcontractors, architects, designers, vendors, and material suppliers. Case complexities included dealing with multiple and overlapping defects, language barriers, condominium association rights, and complex insurance coverage issues.

Successful Construction-Defect Resolution:  In re Salem Hospital Metal Panels
Represented a hospital owner in a dispute over construction defects involving metal panels installed in a hospital building. Claims exceeded $1.7 million and involved the general contractor, subcontractor, designer, and panel manufacturer. Using a mediation process with follow-on direct negotiations, we successfully settled the matter without litigation and with all business relationships preserved.

Insurance Litigation:  Laurel Parc v. Seabold Construction
Represented the general contractor in claims against multiple insurance companies. The claimant owner had received an arbitration award against the general contractor for about $8 million in a construction-defect dispute defended by insurance defense counsel. After the award, we were activated to recover funds to pay the award from various insurance companies of the general contractor and subcontractors, all within 60 days before the arbitration award became an enforceable judgment. The insurance companies all denied coverage. Using a mediation process followed by intense direct negotiations, we obtained the $8 million from approximately ten different parties within the 60 days available.

Appellate:  Walsh Construction Co. v. Mutual of Enumclaw Insurance Co., 338 Or 1, 104 P3d 1146 (2005)
Filed successful amicus curiae briefs for Associated General Contractors and others before Oregon Supreme Court to clarify important ruling on Oregon's anti-indemnification statute governing construction contracts.

Concrete Design Defect:  Salem Hospital v. Century West Engineering
Represented a hospital owner in design-defect litigation against the structural engineer and other designers of a large parking garage structure. The garage had experienced deflection of concrete slabs, cracking of concrete, and settlement of footings. Total claims were about $1.2 million, and were successfully settled following a mediation process.

Design Defect:  Best Foods Baking v. Group McKenzie
Represented a national bakery owner in claims against the project architect and other parties for defective design of a bakery addition. Total claims exceeded $1.3 million. The case was tried to a jury, which awarded a verdict in favor of the client together with recovery of attorney fees.

Professional Errors-and-Omissions Defense
Assisted a multinational engineering firm in resolving claims asserted by a municipal wastewater commission related to the design and construction of a biosolids irrigation facility.

Payment Claims:  Hanson v. RCI/Herzog
Involved breach of contract, bond, and retainage claims for supplier to Sound Transit project.

Product-Defect Litigation:  Hoffman Construction v. Aluma Tech
Represented the parent corporation of a window manufacturer that supplied curtain walls and window systems to a large condominium project. The general contractor and a subcontractor sued for over $4 million, alleging repair costs and extra-work claims arising out of the window systems. The case also involved insurance-coverage disputes for construction-defect claims. This case was successfully settled for the client.

Payment Claims:  In re Round at Beaverton Central
Represented the owner/developer of a large multiuse project in defending multiple construction lien claims filed by the general contractor as well as many subcontractors. At one time, over 20 liens were filed against the project, exceeding $8 million. At the same time, we prosecuted a breach-of-contract claim against the general contractor for over $3 million. The entire case was successfully settled using a mediation process.

Construction-Defect/Delay Claims:  Integrated Device Technology v. Cherry City Electric
Prosecution of multimillion-dollar construction-defect and lost-profits claims against contractors for defective electrical service to high-tech manufacturing facility.

Construction-Defect/Delay Claims:  MultiCare Health System v. Skanska USA Building
Successful recovery of $3 million water-damage and delay claims arising during construction of new wing of hospital. Claims resolved under property and liability policies and with both subcontractors and insurers directly, including complex mediations.

Construction Defect:  Portland Art Museum v. Ann Beha Architects, Inc.
Obtained multimillion-dollar recovery during the course of litigation and mediation that involved claims for breach of contract, negligence, and breach of warranty against a Boston architectural firm arising from incomplete and uncoordinated drawings in connection with the renovation of the Masonic Temple and construction of the Mark Building, the new home of the Portland Art Museum. Representation of the museum additionally included resolution of multimillion-dollar contractor and subcontractor claims (which were resolved for less than 30 percent of the principal amount of the claims) and avoiding payment of any costs or attorney fees.

Delay Claims:  Sherwood School District v. OC America Construction
Successful recovery for school district on extensive scheduling delay, cost, and defect claims against general contractor during and after construction of new elementary school. Obtained arbitration award over $1 million and successfully defended court challenge to award.

Payment/Delay Claim:  Total Mechanical v. Siemens Building Technologies
Represented the general contractor in defense of a claim filed by the mechanical contractor concerning a boiler and underground piping project at a college. The claim was for approximately $1.5 million for extra work, delay, and disruption, and was successfully settled.

Construction Defect:  Trendwest Resorts, Inc. v. Ramsay-Gerding Construction Co.
Obtained multimillion-dollar recovery in a mediation in which excerpted video-deposition admissions and electronic and PowerPoint visual aids were used to convince insurance adjusters of their exposure. Claims included negligence and breach-of-contract claims against architects, an owner's representative, a general contractor, and subcontractors arising from the defective design and construction of the WorldMark at Gleneden Beach Resort.

Bid Protest:  Wilder Construction v. State of Oregon
Represented a general contractor bidding a large environmental remediation project for the State of Oregon. The contractor's bid was declared nonresponsive and rejected for technical errors. A protest was filed, and the State reversed its decision and awarded the contract to the client.

Construction Defect:  ABM v. Seattle Second & James
Multimillion-dollar claims related to defects arising out of parking garage.

Construction-Defect/Product-Liability Litigation:  Mosler Lofts v. Belltown Dev. (2013)
Defense of multimillion-dollar lawsuit involving construction defects and product-liability claims.

Contract Drafting:  Providence St. Joseph Health
Prepare and negotiate family of contract documents used for Providence St. Joseph Health's capital construction projects. The contract family governs Providence construction projects in five states and includes:
  • Master construction and design contracts
  • Construction and design contracts for individual projects
  • Design-build contracts
  • Project management contracts
  • Consultant contracts
  • Abatement contracts
  • Preconstruction contracts
  • Master services contracts

We also counsel Providence St. Joseph Health personnel on various matters related to construction risk allocations, including indemnification, insurance coverage, and claims.

Design and Construction Contract Negotiation:  Northern Quest Resort & Hotel Complex
Negotiated contracts for design and construction of $215 million resort and casino development for tribal enterprise, and handled ongoing issues during the construction and development process. Contract negotiations included addressing unique bonding and security issues related to tribe's unique status as sovereign, and negotiated ongoing construction-related relationships through fast-track construction from design to occupancy. Negotiated with local government for utilities and other issues. Handled franchise and other agreements for businesses locating in resort, contracts with vendors, gaming and liquor-related licensing and regulatory issues, and other tribal casino resort-related matters.

Contract Negotiations:  Salem Hospital
Negotiation of design, construction management, and construction contracts for major capital expansion project and multiple structures.

Contract Negotiations:  Good Samaritan Hospital, Puyallup, Washington
Negotiation and modification of complex construction contract for large new hospital and related facilities.

Contract Drafting:  Evergreen International Aviation
Negotiation of many design and construction contracts over decades, including for airport facilities, The Captain Michael King Smith Educational Institute, Evergreen Aviation & Space Museums, large-format theater, and related facilities. Successful litigation and settlement of construction-lien and -defect claims and audits relating to certain projects.

Contract Drafting:  WinCo Foods, LLC
Negotiation of design/build contracts for new distribution centers in California and Idaho, and expansion projects.