Georgia Legislature Passes Additional Procurement Rules
May 30, 2018 —
David R. Cook Jr. - Autry, Hall & Cook, LLPOn May 3, 2018, Governor Nathan Deal signed HB 899 into law, officially making it Act 389. Act 389 modifies O.C.G.A. § 13-10-4 and § 36-91-23 relating to public works bidding and contracts of state and local governments, respectively. Both sections are modified in the same bill because they contain the same language. The bill prohibits the disqualification of bidders based upon lack of previous experience with the project’s desired construction delivery method.
Before the modifications, the code protected a contractor from disqualification only for lack of previous experience on a job of comparable size. After the modification, the law expands to prohibit disqualification based on lack of previous experience with comparable job size and lack of previous experience with the construction delivery method.
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Construction Law Client Alert: California’s Right to Repair Act (SB 800) Takes Another Hit, Then Fights Back
February 25, 2014 —
Steven M. Cvitanovic and Whitney L. Stefko - Haight Brown & Bonesteel, LLPLast week, the California appellate courts decided two cases with ramifications under the Right to Repair Act. The first case, Burch, addresses whether the Right to Repair Act is the exclusive remedy for the homeowner. The second case, KB Home, addresses a situation where a homeowner or the homeowner's insurer fails to follow the procedures under the Right to Repair Act.
Last August, the Fourth Appellate District announced its decision in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 holding that SB 800 is not a homeowner’s exclusive remedy in situations where defects cause actual damage. Many lawyers believed that Liberty Mutual would be a one-off because of its facts – it was a subrogation case brought by an insurance company. So much for that.
Now the Second Appellate District is getting into the act.
In Burch v. The Superior Court of Los Angeles County, et al., the Second Appellate District overturned an order granting summary adjudication in favor of a developer, general contractor, and their respective owners, in a construction defect action brought by a residential homeowner. The trial court found that the Right to Repair Act precluded the homeowner’s negligence and implied warranty claims but the Court of Appeal reversed.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and
Whitney L. Stefko, Haight Brown & Bonesteel, LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com, Ms. Stefko may be contacted at wstefko@hbblaw.com
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Lump Sum Subcontract? Perhaps Not.
August 20, 2019 —
David Adelstein - Florida Construction Legal UpdatesLump sum subcontract? Perhaps not due to a recent ruling where the trial court said “No!” based on the language in the subcontract and contract documents generally incorporated into the subcontract.
This is a ruling on an interpretation of a subcontract and contract documents incorporated into the subcontract that I do not agree with and struggle to fully comprehend. The issue was whether the subcontract amount was a lump sum or subject to an audit, adjustment, and definitization based on actual costs incurred. Of course, the subcontractor (or any person in any business) is not just interested in recouping actual costs, but there needs to be a margin to cover profit and home office overhead that does not get factored into field general conditions.
In United States v. Travelers Casualty and Surety Company, 2018 WL 6571234 (M.D.Fla. 2018), a prime contractor was hired to perform work on a federal project. During the work, the Government issued the prime contractor a Modification that had a not-to-exceed value and required the prime contractor to track its costs for this Modification separate from other contract costs. In other words, based on this Modification, the prime contractor was paid its costs up to a maximum amount and the prime contractor would separately cost-code and track the costs for this work differently than other work it was performing under the prime contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Fifth Circuit Decision on Number of Occurrences Underscores Need to Carefully Tailor Your Insurance Program
December 19, 2018 —
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogThe Fifth Circuit in Evanston Insurance Co. v. Mid-Continent Casualty Co. recently held that multiple collisions caused by the same insured driver over a span of 10 minutes constitute a single occurrence subject to a $1 million limit in the insured’s primary policy with Mid-Continent. The holding reversed a lower court’s ruling that Mid-Continent is liable for an additional sum the excess insurer, Evanston, paid to resolve all of the claims arising from the collisions. At issue, a fundamental question about causation and coverage under commercial liability insurance.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Mercury News Editorial Calls for Investigation of Bay Bridge Construction
July 01, 2014 —
Beverley BevenFlorez-CDJ STAFFEditors at the San Jose Mercury News called for investigations of the construction of the new eastern span of the Bay Bridge: “It's time for public officials, especially members of the Metropolitan Transportation Commission, state legislators and Gov. Jerry Brown, to demand thorough independent analyses.”
Problems with the $6.5 billion structure were found about nine months ago, which led to questions regarding the “integrity and maintenance costs” that were allegedly covered up by Caltrans officials. Issues raised included questions “about the strength of thousands of bolts, including at the base of the tower and the connections of the main cable; cracked welds in the suspension span; and rusting of the single cable holding up the bridge.”
The Mercury editors, however, do not show much optimism about the situation: “It's likely that, absent a political outcry, Caltrans will sign off. From the start, agency officials have failed to adequately oversee the construction and thrown public money at problems while trying to cover-up their own failures. Brown, ultimately responsible for Caltrans, has dismissed concerns about the bridge's integrity.”
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Partner Lisa M. Rolle and Associate Vito John Marzano Obtain Dismissal of Third-Party Indemnification Claims
December 22, 2019 —
Lisa M. Rolle & Vito John Marzano - Traub Lieberman PerspectivesOn June 1, 2019, Traub Lieberman partner Lisa M. Rolle and associate Vito John Marzano successfully secured dismissal of all third-party claims on behalf of a corporate entity and its principal in a third-party action in the New York State Supreme Court, County of Bronx. The underlying action concerned a trip and fall that occurred on a public sidewalk located in the Bronx. Plaintiff commenced suit against the corporation property owner and its principal. Defendants/third-party plaintiffs commenced the third-party action seeking contractual and common-law indemnification against three third-party defendants, the corporate tenant, another corporate entity that was not a party to the lease and its principal. Traub Lieberman represented the latter two third-party defendants.
On behalf of the corporate entity that was not a party to the lease, Traub Lieberman moved for dismissal on the basis that the lease constitutes documentary evidence establishing as a matter of law that the non-tenant corporation cannot be held liable to third-party plaintiffs. On behalf of the principal, Traub Lieberman sought dismissal for failure to state a cause of action because the principal was shielded from liability by virtue of having incorporated his business, and the complaint did not allege a claim for piercing the corporate veil.
In opposition, third-party plaintiffs sought to amplify their pleadings by alleging that a de facto merger had occurred between the non-tenant corporation and the tenant corporation. Third-party plaintiffs further argued that the corporate principal executed a guaranty to the lease, thus accepting liability on behalf of the tenant corporation.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman and
Vito John Marzano, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Marzano may be contacted at vmarzano@tlsslaw.com
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The Greenest U.S. Cities & States
August 13, 2014 —
Beverley BevenFlorez-CDJ STAFFECOBUILDING Pulse discussed the results of the 2014 U.S. Clean Tech Leadership Index, which “tracks clean tech progress by state, and in the 50 largest metro areas.” The top three states with the highest Clean Tech Index score were California, Massachusetts, and Oregon. Out of the top 10 cities, 5 were located in California. The top three cities with the highest score were San Francisco, San Jose, and San Diego.
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