91视频

As a San Francisco defense attorney during the late 鈥�90s, Bill Joseph was intrigued by the rise in construction-defect claims involving roofing, plumbing and other building products such as the notorious LP siding.

Joseph, who began practicing in 1996, shifted his focus to specialize in defending against such product-related claims, and joined Bullivant Houser Bailey鈥檚 Portland office in 2000. He began representing more contractors in product-defect cases and other consumer litigation as well as claims related to the Unfair Trade Practices Act.

During the 2003 legislative session, Joseph was counsel to the Oregon House and Senate Judiciary Committees.聽He is a frequent guest lecturer for the Associated General Contractors鈥� Oregon-Columbia chapter, and in 2010 was honored as Associate of the聽Year by the Home Builders Association of Metropolitan Portland.聽Super Lawyers recognized Joseph in 2008 and 2009 as a Rising Star in construction law.

Now a partner with Portland鈥檚 Dunn Carney Allen Higgins & Tongue, Joseph recently took time to discuss how product-defect litigation has changed and explore some of the more pressing issues impacting commercial contractors and homebuilders today. His responses have been edited for clarity and brevity.

91视频: How has the construction-defect market evolved since you started practicing?

Bill Joseph: Back in 2000, it was product focused 鈥� almost like a mass tort experience 鈥� and it was very centered on single-family homes. About five or six years ago, it evolved from siding to other aspects of the building envelope, like vapor drive. It also began to move away from single-family homes to multifamily complexes, primarily townhomes, presumably because it was easier to get one large group of homeowners to share the cost of a lawsuit rather than have individual homeowners bear those costs. Townhomes and condominiums became easy fodder for this type of litigation.

Today, construction-defect claims are more focused on workmanship as opposed to products. They are broader in scope, and they are being brought earlier in the life cycle of structures. I think there鈥檚 also a lot more competition between plaintiffs鈥� attorneys for construction-defect claims work than there used to be, as more attorneys are doing that type of work while less is being built. And what is being built is constructed much better than in the past. I think plaintiffs鈥� attorneys have gotten more aggressive in pursuing this type of work, and I鈥檝e heard anecdotally that they are doing things like walking around neighborhoods signing people up for lawsuits. That鈥檚 really scary to the average developer or homebuilder.

91视频: What types of cases are you seeing most prominently these days?

Joseph: There still seems to be a lot of construction-defect cases being litigated, which is an incredible drain on already-taxed contractors. There is very little lien work because there are very few projects, but I鈥檓 doing a lot of contract work because of so many legislative changes since 2008. These include new requirements for residential construction contracts, (state Construction Contractor Board) licensing requirements, insurance requirements and lien procedures.

91视频: What new laws will impact contractors and homebuilders?

Joseph: Probably the most significant is Senate Bill 961, which bars waivers of subrogation in construction agreements under certain circumstances. Current law already renders void any provision in a construction agreement that requires one contractor to indemnify another contractor for the other鈥檚 own negligence.聽SB 961 closes what some perceive as a loophole that allows contractors to contractually waive their right to recover payments attributable to another contractor鈥檚 negligence after having settled with a third-party claimant.

For example, under existing law, a subcontractor鈥檚 insurer that pays a settlement amount to a claimant in an effort to avoid litigation is prohibited from pursuing the general contractor for payment if the subcontractor has waived its right to subrogation in its contract with the general contractor.聽These waivers are relatively common and are typically enforced under current law.聽SB 961 renders such waiver of subrogation provisions void.聽While these waivers don鈥檛 generally impact litigated cases because the fault of each party is effectively assessed at the same time, they can affect the rights of a contractor and/or its insurer when the contractor chooses to independently settle with a claimant and then pursue others.聽The bill, however, is not intended to affect relationships between insured contractors and their insurers.

91视频: What are some of the other key issues facing contractors right now?

Joseph: It really comes down to the economy and finding work that has a profit margin built into it. I don鈥檛 think finding skilled labor is too difficult, although there has been quite a flight of skilled labor due to the economy. Most concerning, I thought a year ago that the economic shakeout was done, but now I鈥檓 not so sure.