Columbus Ohio Building Expert Directory

Rejection’s a Bear- Particularly in Construction

December 23, 2024 — Christopher G. Hill - Construction Law Musings
As I read through this week’s cases published in Virginia Lawyers Weekly, I came across a case posing an interesting question. The question is, “If your bid is rejected along with everyone else’s, can you complain?” The short answer set out by the Rockingham County, Virginia Circuit Court is “No.” In the case of General Excavation v. City of Harrisonburg the Court looked at the Virginia Public Procurement Act’s bid protest provisions in Va. Code 2.2-4360 and 2.2-4364(C) in the context of General Excavation’s protest of the City’s failure to award it (or anyone else for that matter) the contract on which it was the low bidder. The controlling section of the statute allows a challenge to the award or proposed award of a contract. In defending the action, the City of Harrisonburg argued that, because the Procurement Act waived some of the city’s sovereign immunity, it must be read strictly. The city further argued (somewhat ironically) that, because no award of the contract was given or even proposed, General Excavation could not bring suit because it would not be challenging the “proposed award or award” of a contract. Not surprisingly, the Rockingham County court held with the City and strictly construed the statute against General Excavation in finding that General Excavation did not have the standing necessary to bring suit under the statute. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Quick Note: Do Your Homework When it Comes to Selecting Your Arbitrator

July 26, 2017 — David Adelstein - Florida Construction Legal Updates
Many construction contracts contain arbitration provisions. Instead of litigating a dispute arising out of the contract, the parties will arbitrate the dispute per the arbitration provision. There are advantages to arbitration and certain disputes bode well for arbitration. The key is you want to make sure you select the RIGHT arbitrator or arbitrators. Do your homework regarding the arbitrator list presented to you by, say, the American Arbitration Association. Strike out those on the list that either do not have the requisite experience you need to decide the dispute or you believe they are not going to be impartial. For instance, if you want an arbitrator that you think will specifically follow the letter of the law or the precise terms of a contract, select those on the list that meet this requirement; strike out others that do not. The same philosophy would apply if you want an arbitrator to have specific factual knowledge or a factual understanding regarding a driving issue in the dispute. Do not neglect the homework required to select –or try to select — the arbitrator you believe is the most qualified to understand the issues. Now, why is this important? It is important because you need to arbitrate a dispute with the understanding that the arbitrator’s award (decision) is FINAL. There are no appellate rights. None. Vacating an arbitrator’s award is very challenging and the bases to vacate an award are limited and, most of the time, will NOT apply. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Reversing Itself, Alabama Supreme Court Finds Construction Defect is An Occurrence

April 08, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Alabama Supreme Court withdrew is prior opinion and authored a new decision finding that construction defects are an "occurrence." Owners Ins. Co. v. Jim Carr Homebuilder, No. 1120764 (Ala. March 28, 2014) [decision here]. Jim Carr Homebuilder (JCH) contracted to build a home for the Johnsons. After completion of the construction and moving in, the Johnsons noticed several problems with the house, including water leaking through the roof, walls, and floors, resulting in water damage to those and other areas of the house. When JCH was unable to satisfactorily fix the problems, the Johnsons sued, alleging breach of contract, fraud, and negligence. Owners, JCH's insurer, defended under a reservation of rights. The matter went to arbitration, where an award of $600,000 was made to the Johnsons. Owners filed a declaratory judgment action against the Johnsons and JCH. Owners argued that the property damage upon which the award was based was not the result of an "occurrence." The trial court determined that the entire arbitration award was covered under the policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

CSLB Reminds California Public Works Contractors to Renew Their Public Works Registration

October 02, 2015 — Garret Murai – California Construction Law Blog
A friendly reminder from the Contractors State License Board . . . CSLB Urges Public Works Contractors to Renew Dept. of Industrial Relations Registration before October 1 to Avoid Hefty Penalty SACRAMENTO — A mandatory renewal deadline is approaching for licensees who work on public works projects. Contractors whose registration with the California Department of Industrial Relations (DIR) expired June 30, 2015, and have ongoing public works projects or plan to bid on new ones, must pay the $300 renewal fee before October 1, 2015, or face an additional $2,000 late penalty after that date. As a result of Senate Bill (SB) 854, all contractors have been required since April 1, 2015, to register with DIR to be awarded a public works contract, even if the project did not go out to bid. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Can a Non-Signatory Invoke an Arbitration Provision?

February 02, 2017 — David Adelstein - Florida Construction Legal Updates
As you know from prior postings, arbitration is a creature of contract. Hence, if you want your disputes to be resolved through arbitration, as opposed to litigation, make sure to include an arbitration provision in your agreement that covers all disputes arising out of or relating to the agreement. Under certain circumstances, a non-signatory to an agreement wants to invoke an arbitration clause in the agreement. The non-signatory will move to compel a signatory to the agreement (with an arbitration provision) to arbitrate a dispute with the non-signatory. Can a non-signatory do this? Yes, under certain circumstances. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

New York Team’s Win Limits Scope of Property Owners’ Duties to Workers for Hazards Inherent in Their Work

May 20, 2024 — Lewis Brisbois Newsroom
New York, N.Y. (May 9, 2024) - New York Partners Jennifer Oxman and Andrew Harms recently secured dismissal of a personal injury plaintiff’s complaint on summary judgment in Queens County, with a state judge accepting their argument that a porter who allegedly tripped and fell on loose wood in a stairwell had no cause of action against the property owner because it was his job to clean the stairs in the first instance. The porter was not an employee of the property owner, but rather an employee of a property management company. Therefore, the workers compensation bar did not apply to the employee’s claims. In a four-page decision, Justice Chereé A. Buggs of Queens County Supreme Court found that plaintiff’s duties as a porter included cleaning the stairwell and that he saw and cleaned loose pieces of wood on occasions prior to his accident. Justice Buggs held that while the wood debris likely came from an “outside source”, i.e. a contractor performing work at a neighboring building, the source of the debris was not relevant. Rather, what mattered was the fact that the hazard upon which plaintiff tripped was “inherent in or related to” plaintiff’s work responsibilities. By contrast, Justice Buggs held that the contractor who allegedly was the source of the wood was not entitled to summary judgment under the same legal theory because it arguably caused and created the hazard upon which plaintiff tripped. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Substituting Materials and Failure to Comply with Contractual Requirements

November 19, 2021 — David Adelstein - Florida Construction Legal Updates
It is important to remember that if you are going to substitute materials from those specified, you need to make sure there is proper approval in doing so–make sure to comply with the contractual requirements to substitute materials. Otherwise, you could be in a situation where you are contractually required to remove the installed substituted materials and replace with the correct specified materials. This is not the situation you want to find yourself in because this is oftentimes a costly endeavor. This was the situation in Appeal-of-Sauer, Inc., discussed below, on a federal project. The best thing that you can do is comply with the contractual requirements if you want to substitute materials. If you are in the situation where it is too late, i.e., you already installed incorrect materials, you want to demonstrate the substituted materials are functionally equivalent to the specified materials and/or come up with an engineering solution, as required, that could be less costly then ripping out the installed material and replacing with the correct material. Even doing so, however, is not a “get out of jail free card” and does not necessarily mean there is not a strong basis to require you to install the correct specified material. In Appeal of- Sauer, Inc., ASBCA 61847, 2021 WL 4888192 (ASBCA September 29, 2021), a federal project’s engineering requirements required cast iron piping for the above ground sanitary system. However, the prime contractor installed PVC piping instead of cast iron piping. The prime contractor believed it had the appropriate approval through its submittal. The government, through its contracting officer, directed the prime contractor to remove installed PVC piping to replace with cast iron. The government did not believe PVC piping was the functional equivalent of cast iron piping for the above ground sanitary system due to its concern with the noise level of waste materials flowing through the piping. The prime contractor submitted a claim for its removal and replacement costs which was denied by the contracting officer. On appeal with the Armed Services Board of Contract Appeals, the Board agreed with the contracting officer explaining: “While we agree that a design change could be approved by the designer of record and brought to the attention of the government before being incorporated into the design documents, the [prime contractor’s] task order required that such a design change meet the minimum requirements of the solicitation and accepted proposal. The plumbing submittal [the prime contractor] issued here, showing the use of PVC instead of cast iron for the above ground waste piping, did not meet the minimum requirements of the solicitation.” Appeal of-Sauer, Inc., supra. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Contrasting Expert Opinions Result in Denial of Cross Motions for Summary Judgment

February 27, 2023 — Tred R. Eyerly - Insurance Law Hawaii
Given the opposing experts' contradictory reports, the court denied both the insured and insurer's motions for summary judgment regarding coverage for a pipe leak. Pronti v. Hanover Ins. Co., 2022 U.S. Dist. LEXIS 222306 (W.D. N. Y. Dec. 9, 2022). The insured had a swimming poll and spa, which functioned using a subsurface plumbing system, covered with concrete decking. A subsurface pipe began to leak, preventing the pool from properly functioning. The insureds gave notice under their homeowners' policy and contended that significant portions of the pool, spa, concrete decking and other landscaping had to be torn out to do repairs. The insurer retained an expert, Sarah G. Byer, a structural engineer, to investigate. The parties agreed that the pipe had a leak, but disputed if the location of the leak was specifically identified. The parties also disputed the cause of the leak. Byer found that the most likely cause was deterioration incurred over the pipe's lifetime based on the age of the plumbing system and Byer's personal observation of the pipe. Byer further stated that the physical qualities of flexible PVC piping made it susceptible to damage from chlorine and water over time. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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