Substituting Materials and Failure to Comply with Contractual Requirements
November 19, 2021 —
David Adelstein - Florida Construction Legal UpdatesIt is important to remember that if you are going to substitute materials from those specified, you need to make sure there is proper approval in doing so–make sure to comply with the contractual requirements to substitute materials. Otherwise, you could be in a situation where you are contractually required to remove the installed substituted materials and replace with the correct specified materials. This is not the situation you want to find yourself in because this is oftentimes a costly endeavor. This was the situation in Appeal-of-Sauer, Inc., discussed below, on a federal project. The best thing that you can do is comply with the contractual requirements if you want to substitute materials. If you are in the situation where it is too late, i.e., you already installed incorrect materials, you want to demonstrate the substituted materials are functionally equivalent to the specified materials and/or come up with an engineering solution, as required, that could be less costly then ripping out the installed material and replacing with the correct material. Even doing so, however, is not a “get out of jail free card” and does not necessarily mean there is not a strong basis to require you to install the correct specified material.
In Appeal of- Sauer, Inc., ASBCA 61847, 2021 WL 4888192 (ASBCA September 29, 2021), a federal project’s engineering requirements required cast iron piping for the above ground sanitary system. However, the prime contractor installed PVC piping instead of cast iron piping. The prime contractor believed it had the appropriate approval through its submittal. The government, through its contracting officer, directed the prime contractor to remove installed PVC piping to replace with cast iron. The government did not believe PVC piping was the functional equivalent of cast iron piping for the above ground sanitary system due to its concern with the noise level of waste materials flowing through the piping. The prime contractor submitted a claim for its removal and replacement costs which was denied by the contracting officer. On appeal with the Armed Services Board of Contract Appeals, the Board agreed with the contracting officer explaining: “While we agree that a design change could be approved by the designer of record and brought to the attention of the government before being incorporated into the design documents, the [prime contractor’s] task order required that such a design change meet the minimum requirements of the solicitation and accepted proposal. The plumbing submittal [the prime contractor] issued here, showing the use of PVC instead of cast iron for the above ground waste piping, did not meet the minimum requirements of the solicitation.” Appeal of-Sauer, Inc., supra.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Travelers v. Larimer County and the Concept of Covered Cause of Loss
May 10, 2013 —
Brady IandiorioTravelers Indemnity Company (“Travelers”) recently won a decision against Larimer County regarding a claim for damage caused to the roofs of several buildings at the County Fairgrounds. Travelers Indemnity Company v. Board of County Commissioners for Larimer County, Slip Copy, 2013 WL 238865, p. 1 (10th Cir. 2013). Larimer County alleged, in district court, that snowstorms and the weight of the snow build-up caused damage to the roof structures. Id. After the district court found for Travelers on a motion for summary judgment, Larimer County appealed the ruling, claiming that Traveler’s was obligated under the insurance policy to pay for repair costs to portions of the roofing structure. Id.
The underlying claim for repairs originates with several snowstorms that caused damage to several buildings on the County Fairgrounds. The damage claimed was widespread to the roof structures, evidenced by rolling and buckling purlins (horizontal beams running along the length of the roof, resting upon the principal rafters at right angles and supporting the ordinary rafters). Travelers denied the claim based on its own investigation which concluded the damage was caused by design and construction defects, and therefore excluded from coverage under the insurance policy.
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Brady IandiorioMr. Iandiorio can be contacted at
iandiorio@hhmrlaw.com
Excess Must Defend After Primary Improperly Refuses to Do So
August 13, 2014 —
Tred R. Eyerly - Insurance Law HawaiiThe excess insurer had a duty to defend after the primary carrier improperly refused its defense obligations. IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014).
IMG was sued for over $300,000,000 for alleged fraud, conversion, civil theft and violations of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA). The lawsuit stemmed from a real estate development project. The plaintiffs had invested in the project and alleged that the developer had sold them undeveloped properties with the promise they would be developed. IMG was a consultant on the project and also licensed to the developer the use of the IMG name and logo in marketing materials. IMG had no contractual obligation to actually develop the property or finance the project.
IMG sought coverage from its primary carrier, Great Divide, and from its excess carrier, Westchester. Both denied coverage and refused to defend.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Georgia Local Government Drainage Liability: Nuisance and Trespass
November 29, 2021 —
David R. Cook Jr. - Autry, Hall & Cook, LLPA long-running dispute between a landowner and a municipality has escalated to the Georgia Court of Appeals and in the federal court for the Northern District of Georgia.[1] The municipality maintained a stormwater system that discharged on property uphill from the landowner’s property. The uphill property was used as an illegal dump, and debris washed downhill from the dump to the landowner’s property. The debris clogged the landowner’s surface water drainage system, which caused flooding of the property and a building.
State Case
The landowner sued for trespass, nuisance, takings, and inverse condemnation. While the other claims were barred by the four-year statute of limitations, the court addressed the plaintiff-landowner’s claim for continuing nuisance.
Municipalities may be liable when they negligently construct or maintain a sewer or drainage system that causes repeated flooding of property, such that it results in a continuing, abatable nuisance.[2] For a municipality to be liable for maintenance of a nuisance:
the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.[3]
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Design Immunity of Public Entities: Sometimes Designs, Like Recipes, are Best Left Alone
October 21, 2015 —
Garret Murai – California Construction Law BlogApril 23, 1985 will live in infamy.
The Coca Cola Company, responding to diminishing sales as its “sweeter” rival Pepsi-Cola gained market share, announced that it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public simply as, “new Coke.”
The reaction was unexpected.
People around the world began hoarding “old Coke.” Protest groups, such as the Society for the Preservation of the Real Thing and Old Cola Drinkers of America, sprang up around the county. Angry letters addressed to “Chief Dodo” were sent to Coca-Cola’s chief executive officer. And even Fidel Castro, a longtime Coca-Cola drinker, joined the backlash calling “new Coke” a “sign of American capital decadence.”
By July it was over.
Coca-Cola announced that it would once again produce “old Coke,” and in a sign (I’m sure Fidel Castro would say) of American arrogance, announced that “old Coke” would be produced under the name “Coca-Cola Classic” alongside “new Coke” which would continue to be called “Coca-Cola” suggesting that “new Coke” would be the Coke of today as well as the future. By 1992, however, “new Coke” whose sales dwindled to 3% of market share was demoted to “Coke II” and by 2002 was discontinued entirely.
The moral of the story: Change the recipe at your own risk.
Castro v. City of Thousand Oaks
In the next case, Castro v. City of Thousand Oaks, Case No. B258649, California Court of Appeals for the Second District (August 31, 2015), the corollary might well be change the recipe design at your own risk.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Only Two Weeks Until BHA’s Texas MCLE Seminar in San Antonio
April 28, 2014 —
Beverley BevenFlorez-CDJ STAFFThere are just two weeks remaining to sign up for Bert L. Howe & Associate’s inaugural Texas MCLE seminar, “THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.” This activity will be presented on Friday, May 9th at noon in BHA’s San Antonio offices, located at 17806 IH 10, Suite 300, San Antonio, TX 78256. There is no cost for attendance at this seminar and lunch will be provided.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit. The seminar will be presented by Don MacGregor, general contractor and project manager.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation. The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals. Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* An analysis of exposure/allocation to responsible parties.
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
Course #: 901290467 / Sponsor #: 14152.
To register for the event, please email Don MacGregor at dmac@berthowe.com. If you have any questions, please feel free to contact Don at (210) 540-9017 (office) or (714) 713-4956 (cell).
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Commonwealth Court Strikes Blow to Philly Window and Door Ordinance
January 05, 2017 —
Wally Zimolong – Supplemental ConditionsOn December 22, 2016, the Pennsylvania Commonwealth Court issued an important opinion that has flown under the radar somewhat. The case Rufo v. Board of Licenses and Inspection Review, invalidates a major portion of Philadelphia’s so called windows and doors ordinance, which requires owners of vacant properties to install glass windows and doors with frames on vacant properties. A copy of the opinion can be found here. (I only learned about the case because of a tweet by a litigator with the pro-freedom group the Institute for Justice.)
The Windows and Doors Ordinance
The case concerns Section 306.2 of the Property Maintenance Code which requires “the owner of a vacant building that is a blighting influence, as defined in this subcode, [to] secure all spaces designed as windows with windows that have frames and glazing and all entryways with doors.” Property owners found in violation of the ordinance can face stiff fines. Property owners are subject to a daily fine for each door and window in violation of the Ordinance. The fine is $300 per window or door. However, because most vacant properties have multiple windows and doors the fines can add up exponentially.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Buyer Alleges Condo Full of Mold and Mice
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFSarah Schottenstein purchased a New York condo for $1.65 million, and claimed that “she wound up getting a moldy, mouse-infested mess,” according to DNAinfo New York. Schottenstein alleged that “within a month of moving in she found her apartment was infested with mice, had toxic mold growing beneath her floors, brown water coming from the tap and leaks from the ceiling, according to court documents.”
According to DNAinfo New York, “Microecologies Inc., an environmental health firm, found 'very heavy levels' of the infectious mold Aspergillus Chaetomium under the floor of Schottenstein's apartment.”
However, Larry Pittinsky, an attorney for the condo board, told DNAinfo New York that “the case was "about a woman trying to escape her obligation to pay money.”
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