Webinar – Winning The Fight For Attorney’s Fees In Construction Disputes (Video)

In this webinar, Attorney Ryan G. Foltz from our Litigation Group discusses “Winning the Fight for Attorney’s Fees in Construction Disputes”

Transcript

0:18

18 seconds

Good afternoon. My name is Ryan Folultz.

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20 seconds

I'm an attorney at Barisford Booth. I've been practicing for 25 years and my practice focuses on construction litigation. Today we're going to examine

0:28

28 seconds

some pathways to recover attorney's fees in a construction dispute in Washington.

0:33

33 seconds

Fee recovery can dramatically um alter and affect case strategy and also settlement uh leverage negotiation.

0:41

41 seconds

These aren't the only way to recover fees in Washington, but are the most common routes to recover fees in a residential construction dispute.

0:51

51 seconds

Recovery of attorney's fees is limited in Washington. So you typically need three one of three routes to recover under a contract u by statute or some

1:00

1 minute

recognized uh ground in equity to allow the recovery of attorney's fees.

1:05

1 minute, 5 seconds

Obviously the most direct route and the best path is to recover fees under a well-drafted contract. Um a typical uh

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1 minute, 13 seconds

prevailing party attorney's fee provision can be very profound in litigation when the cost of litigation many times can be half or um more than

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1 minute, 23 seconds

than the actual uh amount in dispute between the parties. Even one-sided um attorney fee provisions can be uh deemed

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1 minute, 32 seconds

mutual um under Washington's reciprocity statute. So even if there is a uh poorly drafted contract that isn't in your

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1 minute, 39 seconds

favor, you can use that attorney fee provision to your advantage uh once litigation uh is underway.

1:47

1 minute, 47 seconds

There are a number of statutes that allow for the recovery of fees in residential construction. One of the most uh specifically drafted uh statutes

1:56

1 minute, 56 seconds

to protect owners is the contractor registration act. Um, under that act, the contractor is required to provide a

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2 minutes, 3 seconds

disclosure statement prior to commencing work on a project. Uh, frankly, this is a a commonly missed uh uh procedure by

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2 minutes, 11 seconds

by contractors. And when they fail to do this, it exposes them to attorney's fees under the Consumer Protection Act. uh

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2 minutes, 19 seconds

failing to provide uh this disclosure statement uh is deemed to be an infraction under

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2 minutes, 26 seconds

the the contractor registration act. Um and that infraction is also a per se violation of the Consumer Protection

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2 minutes, 34 seconds

Act. Under the CPA, you can recover your attorney's fees, actual damages, and trouble damages up to $25,000.

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2 minutes, 43 seconds

Also for the contractor's non-compliance with this statute, the contractor is unable to bring a lean claim, which is a very very uh significant defense uh

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2 minutes, 52 seconds

being as leans are common uh in residential construction.

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2 minutes, 58 seconds

Under the the lean statute, there are a number of ways to to recover your cost and fees. U importantly, if a lean is

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3 minutes, 6 seconds

filed, uh the prevailing party, either the the plaintiff or the defendant can recover their fees. So, this applies whether you're prosecuting the lean

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3 minutes, 14 seconds

claim, whether you're defending against the lean claim, or whether you're simply trying to bring an action to remove a

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3 minutes, 21 seconds

wrongfully uh recorded lean against the property.

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3 minutes, 26 seconds

The costs are are fairly robust. You can get your cost for title reports. You can get the cost for the claim of lean and any necessary litigation expenses uh

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3 minutes, 35 seconds

related to to the litigation. Um, as to the lean in Washington, you're not typically allowed to recover uh your attorney's

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3 minutes, 44 seconds

fees in a torque claim. There is an exception for for omissions or defects in a form 17 disclosure. And this is a

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3 minutes, 52 seconds

seller disclosure statement that's [clears throat] required um during the course of sale. If, for example, a seller omits a defect in the

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4 minutes, 1 second

property or if a seller fails to disclose that there was renovations or remodels and um let's say that

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4 minutes, 9 seconds

inspections or permits weren't pulled, that claim is is deemed to be a misrepresentation.

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4 minutes, 16 seconds

And under Washington law, the way that the courts have interpreted that that cause of action, the claim is deemed to be on a contract. And so in in the

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4 minutes, 23 seconds

purchase and sale documents, you'll typically find an attorney fee provision. And the courts will allow you, even though it's a tort claim, the

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4 minutes, 31 seconds

court will allow a prevailing party um in a form 17 negligent uh misrepresentation claim to recover their attorney's fees.

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4 minutes, 43 seconds

Equity is another route to to recover fees in Washington. Uh this is commonly referred to as the ABC rule. Um, and

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4 minutes, 51 seconds

essentially it's when an owner is exposed to litigation uh due to the wrongdoing of the contractor. The the way that the rule works is fairly

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5 minutes

straightforward. um when the owner is compelled to defend against the the wrongdoing of the contractor, um they're

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5 minutes, 7 seconds

exposed to litigation with a with a third party and the ultimate responsible party, the contractor, um assuming the

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5 minutes, 15 seconds

facts are are proven um in the favor of the owner, the owner can re recoup their attorney's fees and costs uh for the

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5 minutes, 21 seconds

litigation resulting from u any wrongful acts from the contractor. So, in the construction context, um, primarily

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5 minutes, 29 seconds

you'll see this if you're if an owner is forced to defend a third party claim caused by a contractor or the contractor's uh subcontractor's negligent work.

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5 minutes, 42 seconds

If you have any questions, feel free to contact me. Um, like I said, my practice uh primarily focuses on construction litigation and construction related

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5 minutes, 49 seconds

disputes. Uh Bears for Booth is also a full ser full service law firm um that provides um legal services and

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5 minutes, 57 seconds

counseling for all sorts of disputes uh estate planning, family law and and business law. Thank you.