Reaffirming the Importance of Appeal Deadlines Under the Contract Disputes Act
January 26, 2017 —
Chadd Reynolds – Autry, Hanrahan, Hall & Cook, LLPA recent United States Court of Federal Claims (“COFC”) decision emphasizes the importance of deadlines for appealing a contracting officer’s (“CO”) decision under the Contract Disputes Act (“CDA”). On July 22, 2016, the COFC granted the consolidation of two naval contract dispute appeals totaling nearly $12.4 million in response to Nova Group/Tutor-Saliba’s (“NTS”) motion to resolve two Requests for Equitable Adjustment (“REA”) in the same forum. See Nova Group/Tutor-Saliba v. United States, No. 15-885C, 2016 WL 4009886, at *5 (Fed. Cl. July 22, 2016). NTS’s motion before the COFC sought to transfer an appeal of a REA before the COFC to the Armed Services Board of Contract Appeals (“ASBCA”), where another appeal of a REA arising under the same contract was presently on appeal. The COFC rejected NTS’s appeal to transfer the REA to the ASBCA because NTS did not appeal the REA within the 90-day limit under the CDA. Instead, the COFC allowed NTS to transfer the REA before the ASBCA to the COFC because timeliness was not an issue.
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Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.com
Traub Lieberman Partners Dana Rice and Jason Taylor Obtain Summary Judgment For Insurance Carrier Client in Missouri Federal Court Coverage Action
April 19, 2022 —
Dana A. Rice & Jason Taylor - Traub LiebermanTraub Lieberman Partners Dana Rice and Jason Taylor were recently successful in obtaining summary judgment for a national insurance carrier client in a federal court declaratory judgment action pending in Missouri. The underlying lawsuit involved two wrongful death actions brought against an insured responsible for performing demolition work on a freight elevator shaft as part of a larger demolition project. The two decedents were operating a motorized wire rope pulley inside the shaft when the system failed, causing the work basket occupied by the decedents to fall and resulting in fatal injuries to the workers. Two state court actions followed against the general contractor on the project, the insured, and various other product suppliers and manufacturers of the freight elevator equipment.
The firm’s client issued commercial general liability insurance policy, which included an “Injury to Employees, Contractors, Volunteers and Other Workers” exclusion that precluded coverage for bodily injury to a broad variety of workers. As respects the insured, the underlying plaintiffs alleged that the decedent-workers were “employed by” the insured, such that the carrier argued the “Injury to Workers” exclusion barred coverage. The carrier filed a declaratory judgment action in the U.S. District Court for the Eastern District of Missouri seeking a declaration that the insurer had no duty to defend or indemnify its insured for the underlying state court actions under the exclusion, and moved for judgment on the pleadings. The carrier also claimed a related “Contractors and Subcontractors” exclusion barred coverage.
Reprinted courtesy of
Dana A. Rice, Traub Lieberman and
Jason Taylor, Traub Lieberman
Mr. Rice may be contacted at drice@tlsslaw.com
Mr. Taylor may be contacted at jtaylor@tlsslaw.com
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Court Throws Wet Blanket On Prime Contractor's Attorneys' Fees Request In Prompt Payment Case
September 03, 2015 —
Steven M. Cvitanovic & Abigail E. Lighthart – Haight Brown & Bonesteel LLPPrompt payment penalty cases do not come around very often, but when they do, there is bound to be fireworks.
In James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., et al. (No. C072169, filed 8/27/15), the California Court of Appeal for the Third Appellate District upheld the trial court's discretion to not award prevailing party attorneys' fees to the party who won a prompt payment dispute. California Business and Professions Code §7108.5 and Public Contract Code §§7107 and 10262 are the mechanisms for obtaining prompt payment relief in California. As shown by the outcome, it is possible to win and lose at the same time.
West Bay Builders, Inc. (“West Bay”) was the prime contractor on a school construction project for Stockton Unified School District. West Bay entered into a subcontract agreement with James L. Harris Painting & Decorating, Inc. (“Harris”) on the project. During construction there were disagreements between West Bay and Harris regarding the contractual scope of work, and Harris performed work it believed was outside the contract, believing it would be paid for the additional work. After West Bay refused to pay for the additional work, Harris left the project, and West Bay hired another subcontractor to complete the work.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Abigail E. Lighthart, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Ms. Lighthart may be contacted at alighthart@hbblaw.com
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U.S. Homebuilder Confidence Rises Most in Almost a Year
June 18, 2014 —
Shobhana Chandra – BloombergConfidence among U.S. homebuilders rose in June by the most in almost a year, a sign the residential real estate market is stabilizing after reeling from severe winter weather earlier this year.
The National Association of Home Builders/Wells Fargo sentiment gauge climbed to 49 this month from 45 in May, the biggest gain since July 2013, figures from the Washington-based group showed today. Readings greater than 50 mean more respondents report good market conditions. The median forecast in a Bloomberg survey called for 47.
Current sales, the outlook for future purchases and prospective buyer traffic all improved this month, today’s figures showed, indicating mortgage rates close to historically low levels and a strengthening job market are sustaining demand. Improving sentiment comes as the world’s largest economy picks up this quarter following a contraction in the first three months of 2014.
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Shobhana Chandra – BloombergMs. Chandra may be contacted at
schandra1@bloomberg.net
California Court Broadly Interprets Insurance Policy’s “Liability Arising Out of” Language
December 20, 2017 —
Garret Murai - California Construction Law BlogIn McMillin Mgmt. Servs. v. Financial Pacific Ins. Co., Cal.Ct.App. (4th Dist.), Docket No. D069814 (filed 11/14/17), the California Court of Appeal held that the term “liability arising out of,” as used in an ongoing operations endorsement, does not require that the named insured’s liability arise while it is performing work on a construction project.
In the McMillin case, the general contractor and developer (McMillin) contracted with various subcontractors, including a concrete subcontractor and stucco subcontractor insured by Lexington Insurance Company. Both subcontractors performed their work at the project prior to the sale of the units.
The Lexington policies contained substantively identical additional insured endorsements that provided coverage to McMillin “for liability arising out of your [the named insured subcontractor’s] ongoing operations performed for [McMillin].” Several homeowners filed suit against McMillin, alleging that they had discovered various defective conditions arising out of the construction of their homes, including defects arising out of the work performed by Lexington’s insureds. Lexington argued that there was no potential for coverage in McMillin’s favor under the endorsements because there were no homeowners during the time that the subcontractors’ operations were performing work at the project (the homes closed escrow after the subcontractors had completed their work); thus, McMillin did not have any liability for property damage that took place while the subcontractors’ operations were ongoing.
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Garret Murai, Wendel Rose Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Hollywood Legend Betty Grable’s Former Home for Sale
June 30, 2014 —
Catherine Sherman – BloombergWhen it comes to Old Hollywood stars, Betty Grable was “the girl with the million-dollar legs.” She also lived in a million-dollar home just four blocks from the Hotel Bel-Air.
Located at 1280 Stone Canyon Rd, the house is currently on the market for $13.295 million.
“It’s a classic, Hollywood estate,” said listing agent Bjorn Farrugia of Hilton & Hyland. “It’s very picturesque — set back on one of the best streets in Bel-Air.”
Grable moved in after the home was built in 1937, the same year she married actor Jackie Coogan (aka “Uncle Fester” in the 1960s sitcom The Addams Family). Soon after, in 1939, the couple appeared in “Million Dollar Legs,” a movie giving rise to the actress’ nickname.
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Catherine Sherman – Bloomberg
Montana Supreme Court Tackles Decade-Old Coverage Dispute Concerning Asbestos Mineworker Claims
December 20, 2021 —
Patricia B. Santelle & Paul A. Briganti - White and WilliamsOn November 23, 2021, the Montana Supreme Court issued an almost unanimous decision in National Indemnity Company v. State of Montana, a ten-year-old coverage dispute arising from claims against the State of Montana alleging it had failed to warn of asbestos dust conditions at vermiculite mining and milling operations in and around Libby, Montana (the Libby Mine) run by W.R. Grace & Company and its predecessors. Affirming in part and reversing in part rulings by the trial court that culminated in a $98 million judgment against the State’s CGL insurer from 1973 to 1975, the court addressed issues including the duty to defend/estoppel, the number of occurrences, “trigger of coverage,” and, in a case of first impression, allocation under Montana law.
Whether the Insurer Breached the Duty to Defend Depended Upon the Timeframe
The court looked at whether (1) the insured provided sufficient information to bring the claims within the possibility of coverage under the subject policy and (2) the insurer gave “the necessary substance to” fulfilling its duty to defend at four points in the relevant timeframe:
- The insurer did not breach its duty at the time the State initially tendered the Libby Mine claims because the State defended the claims through its self-insurance program, hired its own counsel, managed the litigation, made its own defense decisions, and took the position with the insurer that the matter was “under control” and “nothing was left to be done[.]”
Reprinted courtesy of
Patricia B. Santelle, White and Williams and
Paul A. Briganti, White and Williams
Ms. Santelle may be contacted at santellep@whiteandwilliams.com
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
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Construction Litigation Roundup: “Who Needs Them”
August 28, 2023 —
Daniel Lund III - LexologyWho needs them?
So argued a surety pursuing recovery under its general agreement of indemnity when the indemnitors urged a Louisiana federal court to dismiss the surety’s complaint for failure to join various allegedly required parties as defendants in the litigation.
As part of its court action, the surety moved for preliminary injunction to enforce its collateral security rights. In response thereto, the indemnitors informed the court that if the injunction were to be granted, the indemnitors would “be forced to sell assets that are encumbered by security interests senior to those held by” the surety. In connection therewith, the indemnitors demanded that the other creditors be joined in the action or the lawsuit dismissed. The indemnitors also urged that the public project owner be joined as a party because the surety was seeking proceeds from the project that were still in the possession of the project owner.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com