Statutes of Limitations May be the Colorado Contractors’ Friend
April 18, 2011 —
Beverley BevenFlorez CDJ STAFFAlbert Wolf, a principal in Wolf Slatkin & Madison P. C., has written an interesting article on statutes of limitations in construction defect claims in Colorado. While Wolf states that in most cases, “construction defect claims against construction industry participants (contractors, subcontractors, architects, engineers, etc.) requires that suits be started within two years after construction defects have been or should have been—in the exercise of reasonable diligence (care)—discovered,” if a project used the AIA General Conditions (AIA Document A2010) before the 2007 edition, the “statutes of limitations begin to run (accrue) at either substantial completion or breach by the contractor (installation of defective work), depending on the circumstances.”
“That’s a huge difference,” Wolf writes in his article. “For example, if the structural defect caused by faulty foundation work is not discovered or discoverable until walls begin to exhibit cracking more than two years after the building is completed, the owner’s claim against the contractor may be barred if the AIA provision is applied.”
Read the full story...
Read the court decisionRead the full story...Reprinted courtesy of
Building a Case: Document Management for Construction Litigation
October 07, 2019 —
Robert A. Gallagher, Jane Fox Lehman, & Michael I. Frankel, Pepper Hamilton LLP - ConsensusDocsSuccess in construction litigation often turns less on counsel’s ability to craft legal arguments and more on counsel’s ability to gather, master and present the often complex set of facts underlying the case. In construction matters, most of the key facts are found in documents: contract documents, drawings, plans and specifications, schedules, submittals, progress reports, daily logs, change orders, invoices and payment records. Nowadays, these documents will almost certainly be created, exchanged and stored electronically; many will never exist in hard copy. As such, timely collection, organization and analysis of electronically stored information (ESI) is crucially important in construction litigation.
The construction industry has always involved a large quantity of records. Today, the majority of those records exist only as ESI: Design professionals use computer-aided design (CAD) software to create construction plans. Construction managers use Primavera or similar software to create schedules and workflows. Estimators use job cost control programs. Innovative firms capture digital photos of the project, from mobilization through the punch process.
Because ESI is created and exchanged at a higher rate than hard-copy documents, ESI has facilitated a dramatic increase in the volume of records associated with construction projects. Further compounding the increase is the proliferation of mobile devices. With a smartphone in every pocket, ESI creation has moved out of the home office and the site trailer and onto the site itself. As the volume of ESI expands, so too does the time and expense associated with storing, processing, reviewing and producing these records. This article will cover strategies for balancing time and expense with the requirements of the rules and the needs of the case.
Reprinted courtesy of Pepper Hamilton LLP attorneys
Robert A. Gallagher,
Jane Fox Lehman and
Michael I. Frankel
Mr. Gallagher may be contacted at gallagherr@pepperlaw.com
Ms. Lehman may be contacted at lehmanj@pepperlaw.com
Mr. Frankel may be contacted at frankelm@pepperlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
County Elects Not to Sue Over Construction Defect Claims
June 18, 2014 —
Beverley BevenFlorez-CDJ STAFFEven though repairs are expected to cost four million, the New Hanover County Board of Commissioners announced that they will not be pursuing litigation against Clancy and Theys Construction Company for their alleged construction defects of their work on the W. Allen Cobb Judicial Annex in North Carolina, according to Star News Online.
“The board stated that taxpayer money would be better spent on the repairs than on a lengthy court case,” reported Star News Online. “But as a result of the faulty work, the board removed the company from its list of prequalified bidders and stated that it would not be eligible to work on other county construction projects.”
Read the court decisionRead the full story...Reprinted courtesy of
Newmeyer & Dillion Announces New Partner Bahaar Cadambi
May 06, 2019 —
Newmeyer & DillionProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that Newport Beach attorney Bahaar Cadambi has been elected to partnership.
"Bahaar has worked hard to become an integral part of the firm's litigation practice, delivering exceptional value to her colleagues and clients at every opportunity," said the firm's Managing Partner, Paul Tetzloff, "We are proud to count her among our partners and look forward to her continued success and contributions."
Cadambi concentrates her practice in business, insurance, and real estate litigation. She represents businesses, homebuilders, developers, and general contractors in complex, multi-party real estate, construction defect, and insurance disputes. She also represents individuals and businesses across a variety of business litigation matters. Her approach to litigation ensures that clients are informed of all potential strategies, the consequences of those strategies, and how the implementation of those strategies will affect their business.
Passionate about the legal community, Cadambi is an adjunct professor at the University of Southern California Gould School of Law and an active member of CREW (Commercial Real Estate Women Orange County). She is also a Barry's Bootcamp and yoga enthusiast, lover of all things interior design, avid traveler, devoted wife, and favorite aunt to two energetic nieces and one cheerful nephew.
Bahaar earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California, Hastings College of Law. Prior to joining Newmeyer & Dillion, she served as a Judicial Extern for the Honorable William Alsup in the U.S. District Court for the Northern District of California.
Bahaar Cadambi: bahaar.cadambi@ndlf.com
Practice Areas
- Business Litigation
- Construction Litigation
- Insurance Law
About Newmeyer & Dillion
For almost 35 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
Read the court decisionRead the full story...Reprinted courtesy of
No Escape: California Court of Appeals Gives a Primary CGL Insurer’s “Other Insurance” Clause Two Thumbs Down
December 02, 2015 —
Yas Omidi – California Construction Law Blog“No Escape” is a 2015 action movie starring Pierce Brosnan and Owen Wilson (that’s right, Owen Wilson) and which the folks at rogerebert.com described as “a dreadful…would-be thriller” and “low-grade trash.”
It’s also, in short, the California Court of Appeal’s answer to a primary insurer’s recent bid to escape its duty to defend pursuant to an “other insurance” clause in a CGL policy in Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., Case No. D066615, California Court of Appeals for the Fourth District (October 23, 2015).
Read the court decisionRead the full story...Reprinted courtesy of
Yas Omidi, California Construction Law BlogMs. Omidi may be contacted at
yomidi@wendel.com
Specific Performance: Equitable Remedy to Enforce Affirmative Obligation
January 18, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen a party breaches an agreement, particularly when dealing with real estate, there is an equitable remedy known as specific performance that requests the trial judge issue an order to affirmatively force the breaching party to perform, i.e., close on the real estate contract. You are asking the court to require the other party to specifically perform an affirmative obligation. See Melbourne Ocean Club Condominium Ass’n, Inc. v. Elledge, 71 So.3d 144, 146 (Fla. 2011).
A decree of specific performance is an equitable remedy ‘not granted as a matter of right or grace but as a matter of sound judicial discretion’ governed by legal and equitable principles. Specific performance shall only be granted when 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it.
Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (internal citations omitted).
An example of specific performance may play out, as mentioned, in a real estate contract where a seller refuses to close on the transaction.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Properly Trigger the Performance Bond
January 05, 2017 —
David Adelstein – Florida Construction Legal UpdatesA performance bond is a valuable tool designed to guarantee the performance of the principal of the contract made part of the bond. But, it is only a valuable tool if the obligee (entity the bond is designed to benefit) understands that it needs to properly trigger the performance bond if it is looking to the bond (surety) to remedy and pay for a contractual default. If the performance bond is not properly triggered and a suit is brought upon the bond then the obligee could be the one materially breaching the terms of the bond. This means the obligee has no recourse under the performance bond. This is a huge downside when the obligee wanted the security of the performance bond, and reimbursed the bond principal for the premium of the bond, in order to address and remediate a default under the underlying contract.
A recent example of this downside can be found in the Southern District of Florida’s decision in Arch Ins. Co. v. John Moriarty & Associates of Florida, Inc., 2016 WL 7324144 (S.D.Fla. 2016). Here, a general contractor sued a subcontractor’s performance bond surety for an approximate $1M cost overrun associated with the performance of the subcontractor’s subcontract (the contract made part of the subcontractor’s performance bond). The surety moved for summary judgment arguing that the general contractor failed to property trigger the performance bond and, therefore, materially breached the bond. The trial court granted the summary judgment in favor of the performance bond surety. Why?
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dma@katzbarron.com
Read Carefully. The Insurance Coverage You Thought You Were Getting May Not Be The Coverage You Got
November 27, 2013 —
Bret Cogdill — Higgins, Hopkins, McLain & Roswell, LLCA recent U.S. District Court case in Colorado highlighted the importance for an insured to read and understand the terms of its insurance policy. The case 2-BT, LLC v. Preferred Contractors Insurance Company Risk Retention Group, LLC, Civil Action No. 12CV02167PAB, was a controversy between an insured’s expectations for coverage, and the terms and exclusions of the insurance policy.
2-BT is a heating, ventilation, and air-conditioning (“HVAC”) contractor, which utilizes soldering devices and heat sources among other tools for its trade. 2-BT needed liability insurance to cover its work, and found a provider, Preferred Contractors Insurance Company Risk Retention Group, LLC (“PCIC”). 2-BT read PCIC’s online materials, which stated “PCIC’s personalized underwriting process allows us to tailor coverage to properly outfit the contractor with excellent coverage and rates.”
2-BT filled out a policy application, which included a description of the type of HVAC work it performs, initialed several sections, and signed it. One of the initialed paragraphs on the application, “Policy Exclusions,” stated that damages arising from “fungi/bacteria,” “open flame,” and “use of heating devices,” was not covered. PCIC issued a policy to 2-BT, which included a section titled, “Additional Exclusions” that excluded coverage for mold and damage related to heating elements among others.
Read the court decisionRead the full story...Reprinted courtesy of
Bret CogdillBret Cogdill can be contacted at
cogdill@hhmrlaw.com
