New York Supreme Court Building Opening Delayed Again
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFSI Live reported that the opening of the new state Supreme Court building in St. George, New York is delayed again due to problems with the air-conditioning and elevator systems. Delay, however, is not new to this project, which was originally expected to be completed over a decade ago.
Initial delay was introduced “with the finding of remains from a 19th-century burial ground at the site, a former municipal parking lot, and more recently, with construction set-backs and other tie-ups,” according to SI Live.
When completed, the new “building will boast 14 courtrooms, jury assembly, hearing and deliberation rooms, judges' chambers and court offices. There will also be holding cells for prisoners.”
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Terms of Your Teaming Agreement Matter
February 11, 2019 —
Christopher G. Hill - Construction Law MusingsThese days in construction, and other pursuits, teaming agreements have become a great method for large and small contractors to work together to take advantage of various contract and job requirements from minority participation to veteran ownership. With the proliferation of these agreements, parties must be careful in how they draft the terms of these agreements. Without proper drafting, the parties risk unenforceability of the teaming agreement in the evewnt of a dispute.
One potential pitfall in drafting is an “agreement to agree” or an agreement to negotiate a separate contract in the future. This type of pitfall was illustrated in the case of InDyne Inc. v. Beacon Occupational Health & Safety Services Inc. out of the Eastern District of Virginia. In this case, InDyne and Beacon entered into a teaming agreement that provided that InDyne as Prime would seek to use Beacon, the Sub, in the event that InDyne was awarded a contract using Beacon’s numbers. The teaming agreement further provided:
The agreement shall remain in effect until the first of the following shall occur: … (g) inability of the Prime and the Sub, after negotiating in good faith, to reach agreement on the terms of a subcontract offered by the Prime, in accordance with this agreement.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Design and Construction Defects Not a Breach of Contract
February 14, 2013 —
CDJ STAFFThe California Court of Appeals tossed out a breach of contract award in Altman v. John Mourier Construction. The decision, which was issued on January 10, 2013, sent the construction defect case back to a lower court to calculate damages based on the conclusions of the appeals court.
The case involved both design issues and construction issues. According to the plaintiffs’ expert, the design plans did not make the buildings sufficiently stiff to resist the wind, and that the framing was improperly constructed, further weakening the structures, and leading to the stucco cracking. Additionally, it was alleged that the roofs were improperly installed, leading to water intrusion. The contractor’s expert “agreed the roofs needed repair, but disputed what needed to be done to repair the roofs and the cost.”
The jury rejected the plaintiffs’ claims of product liability and breach of warranty, but found in their favor on the claims of breach of contract and negligence. The plaintiffs were awarded differing amounts based on the jury’s conclusions about their particular properties.
Both sides sought new trials. JMC, the contractor, claimed that the jury’s verdicts were “inconsistent in that the relieved JMC of liability for strict products liability and breach of warranty, but found JMC liable for breach of contract and negligence.” The plaintiffs “opposed the setoff motion on the ground that the jury heard evidence only of damages not covered by the settlements.” Both motions were denied. After this, the plaintiffs sought and received investigative costs as damages. JMC appealed this amended judgment.
The appeals court rejected JMC’s claims that evidence was improperly excluded. JMC sought to introduce evidence concerning errors made by the stucco subcontractor. Earlier in the trial, JMC had insisted that the plaintiffs not be allowed to present evidence concerning the stucco, as that had been separately settled. When they wished to introduce it themselves, they noted that the settlement only precluded the plaintiffs from introducing stucco evidence, but the trial court did not find this persuasive, and the appeals court upheld the actions of the trial court. Nor did the appeals court find grounds for reversal based on claims that the jury saw excluded evidence, as JMC did not establish that the evidence went into the jury room. Further, this did not reach, according to the court, a “miscarriage of justice.”
The court rejected two more of JMC’s arguments, concluding that the negligence award did not violate the economic loss rule. The court also noted that JMC failed to prove its contention that the plaintiffs were awarded damages for items that were covered in settlements with the subcontractors.
The appeals court did accept JMC’s argument that the award for breach of contract was not supported by evidence. As the ruling notes, “plaintiffs did not submit the contracts into evidence or justify their absence; nor did plaintiffs provide any evidence regarding contract terms allegedly breached.”
The court also did not allow the plaintiffs to claim the full amount of the investigative costs. Noting that the trial court had rational grounds for its decision, the appeals court noted that “the jury rejected most of the damages claimed by plaintiffs, and the trial court found that more than $86,000 of the costs itemized in plaintiffs’ invoices ‘appear questionable’ as ‘investigation’ costs/damages and appeared to the trial court to be litigation costs nonrecoverable under section 1033.5.”
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NY Pay-to-Play Charges Dropped Against LPCiminelli Executive As Another Pleads Guilty
June 06, 2018 —
Mary B. Powers & Debra K. Rubin - Engineerings News-RecordThe former president of New York contractor LPCiminelli—the firm that has been at the center of an alleged pay-to-play scheme playing out since 2016 when he and two other executives were indicted—got a reprieve as federal prosecutors said they were dropping all charges against him, including wire fraud, conspiracy to commit wire fraud and making false statements to federal agents, according to a June 1 court filing.
Reprinted courtesy of
Mary B. Powers, ENR and
Debra K. Rubin, ENR
Ms. Rubin may be contacted at rubind@enr.com
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New York Instructs Property Carriers to Advise Insureds on Business Interruption Coverage
April 13, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe New York Department of Financial Services (DFS) took the unusual step last week of instructing all property/casualty insurers to provide information on commercial property insurance and details on business interruption coverage in light of the COVID-19 outbreak. The notice is
here.
The notice recognizes that policyholders have urgent questions about the business interruption coverage under their policies. Insurers must explain to policyholders the benefits under their policies and the protections provided in connection with COVID-19.
The explanation to policyholders is to include the following relevant information.
What type of commercial property insurance or otherwise related insurance policy does
the insured hold?
Does the insured's policy provide "business interruption" coverage? If so, provide the
"covered perils" under such policy. Please also indicate whether the policy contains a
requirement for "physical damage or loss" and explain whether contamination related
to a pandemic may constitute "physical damage or loss." Please describe what type of
damage or loss is sufficient for coverage under the policy.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Mediation Tips for Practitioners and 'Eyes Only' Tips for Construction Mediators
December 05, 2022 —
Stacy L. La Scala - Construction ExecutiveConstruction mediation can occur during or after construction and prior to or during arbitration or litigation. But, regardless of when a construction mediation occurs, its success often depends on the parties’ willingness to exchange critical information well in advance of the mediation session.
Tips for the Construction Practitioner
- Schedule a mandatory pre-session call.
A pre-session call with the mediator is the first and most effective opportunity to convey your client’s position and to allow the mediator to absorb and evaluate that information without distraction. On that call, counsel should describe the dispute and identify the decision-makers. Additionally, counsel should address the following questions:
- Are the parties working together and sharing information, or are they at war?
- Have the parties shared expert information?
- Have demands been published?
- Will the parties be publishing their briefs?
- What confidential information is not in the mediation brief?
- Will the decision-makers be participating? Are there any decision-makers who are not available or “behind the scenes”?
Reprinted courtesy of
Stacy L. La Scala, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Home Buyers will Pay More for Solar
February 05, 2015 —
Beverley BevenFlorez-CDJ STAFFThe National Association of Home Builders’ (NAHB) Eye on Housing reported that a study’s results “found that homebuyers are willing to pay more for homes that have installed solar photovoltaic (PV) energy systems.” The team of researchers led by the U.S. Department of Energy’s Berkeley Laboratory “estimates a price premium of approximately $4 per watt of PV installed. For a typical PV system, the research team found that this translates into a price premium of $15,000.”
Furthermore, according to the NAHB, the study “suggests that the presence of energy-efficient home features is among the most important concerns for prospective home buyers.”
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Construction Litigation Roundup: “Wrap Music to an Insurer’s Ears?”
February 05, 2024 —
Daniel Lund III - LexologyThe general contractor on a New Orleans condominium construction project obtained a Contractor Controlled Insurance Program/CCIP policy or "Wrap-Up" policy for the job.
An accident occurred on the job when a construction elevator/hoist fell, injuring several workers. The elevator/hoist was provided by a subcontractor, pursuant to a rental agreement and related subcontract with the general contractor. Contained within the subcontract was a provision which states that the general contractor "has arranged for the Project to be insured under a controlled insurance program (the "CCIP" or "WrapUp"),” and that the CCIP shall provide "commercial general liability insurance and excess liability insurance, in connection with the performance of the Work at the Project site."
A third-party administrator for the wrap-up policy had been in communication with the subcontractor prior to the commencement of the work, “specifically advising that insurance coverage was not automatic” and providing the subcontractor with an enrollment form for the CCIP. Ultimately, the subcontractor “declined to comply with the request,” stating that the subcontractor would "not participate in paying any wrap insurance premiums" – because the subcontractor had its own insurance.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
