Sierra Pacific v. Bradbury Goes Unchallenged: Colorado’s Six-Year Statute of Repose Begins When a Subcontractor’s Scope of Work Ends
November 03, 2016 —
Luke Mecklenburg – Snell & Wilmer Real Estate Litigation BlogIt’s official: the October 20, 2016 deadline to petition for certiorari to the Colorado Court of Appeals on its decision in Sierra Pacific Industries, Inc. v. Bradbury has passed, so it appears that decision will stand.
In Sierra Pacific, the Court of Appeals held as a matter of first impression that the statute of repose for a general contractor to sue a subcontractor begins to run when a subcontractor’s scope of work is substantially complete, regardless of the status of the overall project. Sierra Pac. Indus., Inc. v. Bradbury, 2016 COA 132, ¶ 28, ___ P.3d ___. The Court of Appeals interpreted the statute of repose in C.R.S. section 13-80-104, which requires that “all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of any improvement to real property” must be brought within six years of substantial completion of that improvement. C.R.S. § 13-80-104(1)(a). Recognizing that “an improvement may be [to] a discrete component of an entire project” under Shaw Construction, LLC v. United Builder Services, Inc., 296 P.3d 145 (Colo. App. 2012), the Court of Appeals determined that “a subcontractor has substantially completed its role in the improvement at issue when it finishes working on the improvement.” Sierra Pac., 2016 COA at ¶¶ 20, 28. In doing so, it rejected Sierra Pacific’s argument that the statute could be tolled under the repair doctrine “while others worked to repair [the subcontractor’s] ‘improper installation work and flawed repair work.’” Id. at ¶ 29. Because six years had undisputedly passed since the subcontractor completed its scope of work when Sierra Pacific filed suit against it, the Court of Appeals affirmed the trial court’s order granting the subcontractor’s motion for summary judgment under Section 13-80-104(1)(a).
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Luke Mecklenburg, Snell & Wilmer Real Estate Litigation BlogMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
California Court of Appeals Says, “We Like Eich(leay)!”
March 30, 2016 —
Garret Murai – California Construction Law BlogTime is money.
And nowhere can than be best observed than on a construction project.
Project delays can mean lost profits for owners, liquidated damages for general contractors, and increased material, labor, field overhead, and home office overhead costs for general contractors and subcontractors alike.
Pricing the impact of delays, however, can be thorny. Particularly, for home office overhead.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Development in CBF Green Building Case in Maryland
August 19, 2015 —
Christopher G. Hill – Construction Law MusingsRemember that case I discussed a while back relating to the Chesapeake Bay Foundation (CBF) building in Annapolis, Maryland? Remember how it was a lawsuit over parallams and failure of those parallams? Do you even remember what a parallam is?
Well, that case was initially dismissed upon the Defendant’s Motion for Summary Judgment because the trial court determined that CBF did not file its lawsuit within the proper time frame after notice of the potential failure of the building materials. Of course, CBF appealed to the Fourth Circuit Court of Appeals under the caption The Chesapeake Bay Foundation, Inc., et. al. v. Weyerhaeuser Company (4th Circuit).
After a great review of the facts of the case, the engineering inspections and reports at issue and the trial court’s ruling, the Fourth Circuit vacated the dismissal and remanded the case for further proceedings. The Court of Appeals reasoned that the district court jumped the gun in dismissing the lawsuit so early in the process because:
a genuine dispute exists as to whether knowledge of the water infiltration problem would have put a reasonable person on notice that the Parallams were susceptible to premature deterioration and that their PolyClear 2000 treatment would not preserve them.
In short, the court ruled that the engineering reports relating to moisture issues would have put CBF on notice of the particular issue of deterioration that was at issue in the litigation.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Jury Awards Aluminum Company 35 Million in Time Element Losses
September 23, 2019 —
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogOn July 3, 2019, a Delaware jury determined that fourteen property insurers for Noranda Aluminum Holding Corp., an aluminum producer that filed for bankruptcy and ceased operations three years ago, owe Noranda over $35 million in time element losses that Noranda sustained as a result of two separate catastrophic incidents that occurred at its aluminum facility in 2015 and 2016.
In August 2015, an aluminum explosion occurred at Noranda’s facility, resulting in substantial property damage and bodily injuries. Though the insurers paid for Noranda’s property damage claim, the insurers only covered $5.64 million of Noranda’s $22 million time element claim. In January 2016, the same facility sustained significant damage as a result of equipment failure. The insurers again paid for Noranda’s property damage claim arising from the equipment failure but declined to pay any of its $22.8 million time element claim.
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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Not Everything is a Pollutant: A Summary of Recent Cases Supporting a Common Sense and Narrow Interpretation of the CGL's Pollution Exclusion
October 26, 2020 —
Philip B. Wilusz & Jeffrey J. Vita - Saxe Doernberger & VitaThose of us who suffered through law school are familiar with the argument that there are fundamental rules applicable to contract interpretation and that a certain contract language interpretation would “swallow the rule.” However, insurance companies have long advocated for an interpretation of the CGL policy’s pollution exclusion that would “swallow the coverage” that the insureds thought they were purchasing. Insurers have successfully argued in several states that the pollution exclusion’s definition of “pollutant” should be read literally, and be applied to any “solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” As anyone with children can attest to, the range of items and substances that can be considered an “irritant” is limitless. The logical extent of the insurer’s interpretation brings to mind the high school student who, for his science fair project, convinced his fellow students to ban “dihydrogen monoxide.”1 Citing evidence such as the fact that everyone who has ever died was found to have consumed “dihydrogen monoxide,” he convinced them of the dangers of . . . water. Similarly, an overly expansive reading of the definition of “pollutant” could lead to the absurd result of even applying it to ubiquitous harmless substances such as water. The pollution exclusion, therefore, has run amok in many states and has allowed insurers to avoid liability for otherwise covered claims.
Fortunately, insureds in many states have successfully argued that the pollution exclusion is subject to a more limited interpretation based on several different theories. For example, some courts have agreed that the pollution exclusion, as initially introduced by the insurance industry, should be limited to instances of traditional environmental pollution. Others have held that the exclusion is ambiguous as to its interpretation. The reasonable expectations of the insureds do not support a broad reading of the defined term “pollutant.” Below, this article addresses a number of recent decisions that have adopted a pro policyholder interpretation of the pollution exclusion. As with most insurance coverage issues, choice of law clearly matters.
Reprinted courtesy of
Philip B. Wilusz, Saxe Doernberger & Vita and
Jeffrey J. Vita, Saxe Doernberger & Vita
Mr. Wilusz may be contacted at pbw@sdvlaw.com
Mr. Vita may be contacted at jjv@sdvlaw.com
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Midview Board of Education Lawsuit Over Construction Defect Repairs
February 04, 2014 —
Beverley BevenFlorez-CDJ STAFFMidview Local Schools Board of Education in Grafton, Ohio, “filed a lawsuit asking Lorain County Common Pleas Court to order the Ohio School Facilities Commission to help pay for repairs on three new schools,” according to The Morning Journal. Scott Goggin, Midview’s Superintendent, told The Morning Journal: “Water-stained ceilings and weeping windows in three new elementary schools, built with financial help and cooperation of the OSFC Expedited Local Partnership Program, irritated the district for months.”
“The lawsuit,” as reported by The Morning Journal “claimed other school districts received financial help from the state when correcting repairs to their schools built through the same program.” Furthermore, the lawsuit stated that “OSFC failed to assess the total classroom facilities needs of the school district, and to share the costs of repairing defects.”
The Morning Journal reported, “The lawsuit asks for restitution of the state’s share of correcting the construction defects, the costs of the lawsuit and reasonable attorney’s fees, and further relief the court decides is just and fair.”
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Sellers' Alleged Misrepresentation Does Not Amount To An Occurrence
November 30, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer successfully established on summary judgment that the insureds' alleged misrepresentation in the sale of a condominium was not an occurrence. Novak v. St. Maxent-Wimberly House Condo., 2020 U.S. Dist. LEXIS 167397 (E.D. La. Sept. 14, 2020).
State Farm issued the sellers a condominium unit owner's policy. The buyers sued the sellers, contending the sellers had made misrepresentations in the sale process. The sellers allegedly failed to disclose defects in the condominium before and at the time of the sale. State Farm intervened, seeking a declaration that it was not required to defend or indemnify the sellers because there was no occurrence.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Australians Back U.S. Renewables While Opportunities at Home Ebb
March 16, 2020 —
Natalia Kniazhevich & Matthew Burgess - BloombergSome of Australia’s biggest funds are pouring money into U.S. clean-energy projects as they butt up against a shortage of green opportunities at home.
AustralianSuper, the country’s largest pension fund, recently joined Queensland Investment Corporation in a $1 billion funding round for Generate, a San Francisco-based green-finance company. And Construction and Building Unions Superannuation, another pension giant, made its first U.S. clean-power investments last year.
The investments come as the wildfires that charred an area about the size of New York State have put increasing pressure on funds to do more to fight global warming. The problem, investors say, is the Australian government isn’t promoting clean-energy development, leaving the nation without enough sizable projects to back.
“At this point the platforms of scale don’t exist in Australia,” said Nik Kemp, head of infrastructure at AustralianSuper. “The size of the U.S. market makes for a much larger market and much better long-term growth opportunities.”
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Natalia Kniazhevich & Matthew Burgess, Bloomberg
