Governor Ducey Vetoes Water and Development Bills
June 09, 2016 —
Patrick J. Paul – Snell & Wilmer Real Estate Litigation BlogWith the second regular legislative session of Governor Doug Ducey’s tenure complete, the Governor exercised his veto pen rejecting several laws impacting water and land development.
On May 9th, Governor Ducey vetoed two measures that could have allowed developers to manipulate the requirements of Arizona’s Groundwater Management Act of 1980: Senate bills the
1268 (adequate water supply requirements) and
1400 (county water supply). The bills’ sponsor, Senator Gail Griffin, had expressed concerns that the federal government was exercising too much control of the water supply in Cochise County in its efforts to ensure the continued flow of water in the San Pedro River.
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Patrick J. Paul, Snell & WilmerMr. Paul may be contacted at
ppaul@swlaw.com
Texas Supreme Court Rules on Contractual Liability Exclusion in Construction Cases
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Texas Supreme Court ruled on Ewing v. Amerisure Ins. Co. on January 17th, a “much-anticipated” decision according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP. “Construction projects are always the subject of contracts among owners and contractors” Salisbury stated in his article on Lexology.com. The recent decision demonstrates that “an exclusion in the standard Comprehensive Liability Insurance policy that precludes coverage for ‘liabilities assumed under contract’” does not usually “apply to construction contracts.”
In 2008, Ewing Construction Company built a set of tennis courts in Corpus Christi, according to Salisbury. “Shortly after construction was complete, according to the school district, ‘the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events.’” After the school district sued Ewing in state court, Ewing “turned the suit over to Amerisure, its CGL insurer, seeking a defense and indemnity. Amerisure denied all coverage, citing the contractual liability exclusion in its policy. This inspired Ewing to sue the carrier in federal district court for the Southern District of Texas.”
After several rulings and appeals, the case eventually reached the Texas Supreme Court: “According to the Ewing court, the contract claims that Ewing failed to perform in a good and workmanlike manner ‘are substantively the same as its claims that Ewing negligently performed under the contract because they contain the same factual allegations and alleged misconduct.’ Failure to perform in a ‘good and workmanlike manner’ is functionally and substantively the same as performing negligently. ‘Accordingly,’ the Ewing court said, ‘we conclude that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.’”
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New York vs. Miami: The $50 Million Penthouse Battle From Zaha Hadid
October 28, 2015 —
James Tarmy – BloombergThe Anglo-Iraqi starchitect Zaha Hadid has designed just two residential buildings in the U.S., one in New York (520 West 28th Street in the Chelsea Gallery District next to the High Line) and one in Miami (One Thousand Museum, next to PAMM and overlooking Biscayne Bay). Both have yet to be completed and both, as it happens, have penthouses priced in the region of $50 million.
Two trophy properties by a Pritzker Prize-winning architect and two almost identical price tags? (The Miami penthouse clocks in at a mere $49 million, the New York penthouse an even $50 million.) It’s practically begging for a head-to-head comparison.
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James Tarmy, Bloomberg
Supreme Court of Kentucky Holds Plaintiff Can Recover for Stigma Damages in Addition to Repair Costs Resulting From Property Damage
August 15, 2018 —
Gus Sara - The Subrogation StrategistIn Muncie v. Wiesemann, 2018 K.Y. LEXIS 257, the Supreme Court of Kentucky considered whether stigma damages[1] in a property casualty case are recoverable in addition to the costs incurred to remediate the actual damage. The court held that stigma damages are recoverable in addition to repair costs, but the total of the stigma damages and repair costs cannot exceed the diminution in the fair market value of the property. The court’s decision establishes that if the repair costs are insufficient to make the plaintiff whole, a recovery for stigma damages up to the amount of the diminution in the market value of the home is appropriate.
Appellants Cindy and Jim Muncie incurred significant property damage to their home as a result of an oil leak originating from a neighboring property owned by the Estate of Martha Magel. In 2011, Auto Owners Insurance Company (Auto Owners), the liability carrier for the Estate’s testatrix, Patricia Weisman, filed an impleader complaint in federal court to discharge its obligation to settle the third-party liability claims on behalf of Ms. Weisman. Auto Owners reached a settlement with the Muncies for $60,000 which represented the remediation costs for the actual damage to the property. The settlement release reserved the Muncies’ right to pursue a claim for stigma damages associated with the oil leak.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
City Potentially Liable for Cost Overrun on Not-to-Exceed Public Works Contract
June 29, 2017 —
David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLPOn a public works construction project, a contractor incurred additional costs and asserted a claim against the city. The city denied the claim because the contract had a not-to-exceed price, and the city council and mayor did not approve contract modifications to exceed that amount. City ordinances require approval for contract modifications and change orders exceeding ten percent of the original not-to-exceed amount.
But the contractor argued that the ordinance did not apply because the excess costs did not result from a contract modification or change order. In addition, the contractor argued that, in refusing to approve an increase in the not-to-exceed amount, the city breached the implied duty of good faith and fair dealing. The court concluded that these questions were factual issues for the jury to decide.
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David R. Cook, Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
A Reminder to Get Your Contractor’s License in Virginia
April 25, 2023 —
Christopher G. Hill - Construction Law MusingsHow are ducks and contractors alike? A question I get often, particularly from construction contractors outside of Virginia is whether they need to get a Virginia contractor’s license. The answer is almost invariably “yes.” The next question is why? The answer is almost always “Because state law says so.” With some minor exceptions for material suppliers and the like, Virginia law requires that all of those that perform construction for others carry the proper license and specialization for the work performed. There is no exception for the proverbial “paper contractor” that takes money from an owner and subcontracts all of the actual physical work. It does not matter if you use a different term for what you do for the owner. If it walks like a duck and quacks like a duck. . .its a duck. If you take money to perform construction, you’re a contractor.
Some of the consequences of contracting without a license (aside from possible criminal charges) include among other things, the inability to perfect a mechanic’s lien under Va. Code 43-3(D) and, with minor exceptions, the ability to enforce a contract (meaning it really hurts your ability to get paid).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Insurer Must Defend Contractor Against Claims of Faulty Workmanship
May 30, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe magistrate judge recommended that the insurer's motion for summary judgment seeking to determine there was no coverage for claims of faulty workmanship be denied. Greystone Multi-Family Builders v. Gemini Ins. Co., 2018 U.S. Dist. LEXIS 56770 (S.D. Tex. Feb. 26, 2018).
TPG (Post Oak) purchased an OCIP policy to cover construction of an apartment complex. TPG was sued by the contractor, Greystone, after TPG cancelled the construction contract. TPG filed a counterclaim against the contractor, alleging that Greystone had failed to properly perform in building a luxury apartment complex which resulted in monetary damages to TPG. The complaint further alleged that the project was nine months behind its substantial completion date, far from complete, and over budget when TPG cancelled the contract. The cost to fix the mismanagement caused by Greystone was $18.9 million.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
“You’re Out of Here!” -- CERCLA (Superfund) Federal Preemption of State Environmental Claims in State Courts
October 20, 2016 —
Joshua J. Anderson & John E. Van Vlear – Newmeyer & Dillion LLPThe Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C § 9601 et seq. (“CERCLA”), commonly referred to as “Superfund,” is a federal statute
that provides funding and cost-recovery to address our nation’s worst hazardous-waste
sites. While CERCLA generally vests United States District Courts with exclusive original
jurisdiction over all related controversies, section 113(h) of the Act delays such jurisdiction
while the United States Environmental Protection Agency supervises or undertakes
environmental response action plans. What impact does this delayed federal jurisdiction
have on state law claims brought in state courts? Short answer: “You’re out of here!”
Litigants are precluded from bringing claims in state court that “challenge” environmental
response actions under CERCLA during the pendency of those actions.
Reprinted courtesy of
Joshua J. Anderson, Newmeyer & Dillion LLP and
John E. Van Vlear, Newmeyer & Dillion LLP
Mr. Anderson may be contacted at joshua.anderson@ndlf.com
Mr. Van Vlear may be contacted at john.vanvlear@ndlf.com
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