Final Thoughts on New Pay If Paid Legislation in VA
August 15, 2022 —
Christopher G. Hill - Construction Law MusingsThis past General Assembly session, and after a governor’s amendment and with the convening of a study group, a new statute banning so-called “pay-if-paid” clauses from enforcement was passed. Some of the key features of the legislation are as follows:
It does not take effect until January 1, 2023, and,
For those construction contracts in which there is at least one general contractor and one subcontractor:
- It requires payment within 60 days of receipt of an invoice following the satisfactory performance of the work or within 7 days of receipt of payment by the Owner
- It allows for retainage
- It allows the higher-tier contractor to withhold money for improper performance
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Shifting Fees and Costs in Nevada Construction Defect Cases
November 26, 2014 —
Casey J. Quinn - Newmeyer & Dillion LLPIn Nevada, homeowners who sue a builder for residential constructional defects may recover attorneys’ fees and costs caused by the defect. Many times, the request for attorneys’ fees can outpace the size of the actual claim for defects. However, Nevada provides builders with two ways to potentially shift the right to recover attorneys’ fees and costs away from the homeowner and to the builder.
The first arises during the Nevada Revised Statutes (NRS) Chapter 40 process (Nevada’s Right to Repair law). After a builder receives notice of construction defects, it is required to provide the claimant with a written response to each defect, which may include a proposal for monetary compensation (including contribution from a subcontractor, supplier, or design professional). See NRS 40.6472. If a claimant unreasonably rejects a reasonable written offer of settlement included in the response and decides to commence litigation, the court may deny the claimant’s attorneys’ fees and costs and award attorneys’ fees and costs to the builder. See NRS 40.650. Thus, by including a reasonable offer of monetary compensation in a Chapter 40 response, a builder could possibly avoid paying any fees and costs and even recover its own fees in defending against the claim.
A second method for shifting fees and costs is through a written offer of judgment (OOJ). See NRS 17.115 and NRCP 68. Not limited solely to construction defect matters, an OOJ is a useful tool in all kinds of litigation. OOJs are designed to facilitate and encourage pre-trial settlement by incentivizing parties to make reasonable settlement offers that—when unreasonably rejected—have the consequence of shifting the right to recover attorneys’ fees. Basically, when a party rejects an OOJ and fails to obtain a more favorable judgment, the court cannot award any attorneys’ fees and costs to the rejecting party and may award attorneys’ fees incurred from the date of the offer to the entry of judgment, as well as all reasonable costs, to the party who made the offer. In a recent decision, the Nevada Supreme Court affirmed that when a homeowner rejects an OOJ and fails to obtain a more favorable judgment, it can wipe out that homeowner’s right to Chapter 40 fees and costs. See Gunderson, et al. v. D.R. Horton, 130 Nev. Adv. Op. 9 (Feb. 27, 2014). In other words, “While NRS Chapter 40 permits an award of reasonable attorney fees proximately caused by a construction defect, it does not guarantee it.” Id.
Because of the potentially harsh consequences of rejecting an OOJ, there are specific requirements that must be met to trigger them. An offer of judgment must be made in writing, can be made at any time at least 10 days before trial, and is irrevocable for 10 days with no provision for withdrawal before the 10 days expire. See Nava v. Second Judicial Dist. Court, 118 Nev. 396, 46 P.3d 60 (2002). A party may make successive offers of judgment, but the most recent offer extinguishes previous offers and is controlling for determining the date from which attorneys’ fees may be awarded. See Albios v. Horizon Communities, Inc. 132 P.3d 1022 (2006).
In Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983), the Nevada Supreme Court explained that the purpose of OOJs are not to cause plaintiffs to unfairly forego legitimate claims. However, when a valid offer of judgment is made, the offer is rejected, and the party rejecting the offer fails to obtain a more favorable judgment, a court must evaluate whether the plaintiff's claim was brought in good faith; whether the offer of judgment was reasonable and in good faith in both its timing and amount; whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and whether the fees sought by the offer are reasonable and justified. “After weighing the foregoing factors, the district judge may, where warranted, award up to the full amount of fees requested.” Id.
It is worth noting that in Albios v. Horizon Communities, Inc. 132 P.3d 1022 (2006), the Nevada Supreme Court held that when a party rejects a reasonable OOJ and is foreclosed from recovering fees and costs, the party is likewise foreclosed from an award of fees and costs under Chapter 40. This means that even if a builder fails to include a monetary settlement offer as part of a Chapter 40 response, it may still avoid paying the claimant’s fees and costs with a reasonable and timely OOJ.
Finally, it is important to remember that OOJs are a powerful tool that can cut both ways. If an OOJ is not reasonable and timely, or if it fails to contemplate all the potential recovery of an offeree, the OOJ may have no effect on the outcome of a case. Moreover, if a party rejects an OOJ and fails to obtain a more favorable judgment, that party could end up paying the offeror’s costs and attorney’s fees incurred from the date of the offer. Given this powerful impact, OOJs should be an integral part of pre-litigation planning and overall litigation strategy.
About the Author
Casey J. Quinn is an associate in the Las Vegas office of
Newmeyer & Dillion LLP. His practice focuses on complex commercial, construction, and insurance litigation and appellate work. Casey can be reached by email at Casey.Quinn@ndlf.com.
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How to Build a Coronavirus Hospital in Ten Days
April 20, 2020 —
Elaine Lee - Gravel2Gavel Construction & Real Estate Law BlogIf the coronavirus pandemic continues to spread in the United States as it has in other countries, drastic expansions of hospital and quarantine facility capacity are likely to be necessary. In the hard-hit Seattle area, several temporary facilities are already under construction, including a 200-bed temporary quarantine and isolation center built on a soccer field. China’s response to the initial outbreak in the city of Wuhan demonstrates how rapidly authorities can add capacity in an emergency.
As thousands of citizens became ill with COVID-19, China built two hospitals in Wuhan over the span of just days. Time-lapse videos such as this one show how remarkably quickly the hospitals were built. Construction on the Huoshenshan Hospital (shown in the prior linked video) began on January 23 and finished eight days later. A second hospital, Leishenshan Hospital, began construction on January 25 and finished 12 days later. Square footage information on both hospitals has been inconsistently reported, but Huoshenshan Hospital has a capacity for 1,000 beds, while Leishenshan Hospital has a capacity for 1,600 beds.
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Elaine Lee, PillsburyMs. Lee may be contacted at
elaine.lee@pillsburylaw.com
Ohio Supreme Court Holds No Occurence Arises from Subcontractor's Faulty Workmanship
January 09, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Ohio Supreme Court bucked the modern trend by finding that there was no coverage under CGL policy's the subcontractor's exception for faulty workmanship claimed against the insured. Ohio N. Univ. v. Charles Constr. Servs. 2018 Ohio LEXIS 2375 (Ohio Oct. 9, 2018).
The University contracted with Charles Construction Services, Inc. to build a new luxury hotel and conference center on campus. After work was completed, the University discovered extensive water damage from hidden leaks that it believed were caused by the defective work of Charles Construction and its subcontractors. Repairs were made at the cost of $6 million.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Expansion of Potential Liability of Construction Managers and Consultants
November 18, 2019 —
Scott D. Cessar - Construction ExecutiveOver the last decade or so, there has been far more judicial willingness to adopt legal theories that result in an increased risk of exposure to construction managers and consultants working on construction projects. This has resulted in a greater likelihood of lawsuits being filed that name construction managers and consultants as defendants and a greater likelihood of those lawsuits surviving efforts to have the lawsuits dismissed prior to trial. The consequence of more claims has led to increased costs for legal expenses, settlements and uncompensated personnel time devoted to the defense of the claims.
This expansion of potential liability may be broken into two sets:
- claims for pure economic loss not arising from property damage or personal injury by parties not in a contractual relationship with a construction manager or consultant; and
- claims for property damage or personal injury by a party not in a contractual relationship with a construction manager or consultant.
The first set concerns claims by a contractor against a construction manager or consultant that its breach of duties owed to the owner on a project and/or its provision of incomplete or inaccurate information on a project, which it knew, or should have reasonably anticipated, would be relied on by the contractor, resulted in damages to the contractor.
Reprinted courtesy of
Scott D. Cessar, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Cessar may be contacted at
scessar@eckertseamans.com
Engineering, Architecture, and Modern Technology – An Interview with Dr. Jakob Strømann-Andersen
September 14, 2020 —
Aarni Heiskanen - AEC BusinessWe sat down with Dr. Jakob Strømann-Andersen of Henning Larsen’s Sustainability Engineering Department. Our talk covered the need for interdisciplinary research, sustainable practice, and how technology will lead change in the years ahead.
Can you tell us a bit about your professional background and what you’re currently working on?
I’m a partner with Henning Larsen and work with around 300 architects globally. We’re based in Copenhagen where we’re 200 people strong, with branches throughout the world. I’m a trained engineer with a civil engineering background – making me the first partner that’s not an architect. I’ve been with the company for 15 years and joined as an industrial research Ph.D. in Denmark. For my first three years here, I was employed as a researcher doing research and energy-efficient building design. And that’s where we started with our approach to sustainability.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Newmeyer & Dillion Partner Aaron Lovaas & Casey Quinn Recognized by Super Lawyers
July 21, 2018 —
Newmeyer & DillionLAS VEGAS, Nev. – JUNE 11, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that partner
Aaron Lovaas has been selected to the 2018 Mountain States Super Lawyers list, and associate
Casey Quinn has been selected to the 2018 Mountain States Rising Stars list by Super Lawyers. Each year, no more than 5 percent of lawyers are named to a Super Lawyers list and less than 2.5 percent are named to the Rising Stars list. This is the 9th consecutive year Lovaas has been honored, while Quinn has been consistently selected as a Rising Star honoree in prior years.
Aaron Lovaas is a partner in the Las Vegas office. As a transactional attorney and business litigator, Lovaas has the ability to evaluate legal issues from both points of view and help his clients understand their best option. He also brings to the table experience as a business owner, having owned and managed his own boutique law firm for 12 years.
Casey Quinn, an associate in the Las Vegas office, focuses his practice in complex commercial and construction litigation. He represents a variety of business entities in commercial disputes, including contract claims, business torts, privacy lawsuits, defamation, and fraud. Quinn is a past chair of the Construction Law section of the State Bar of Nevada and has successfully argued before the Supreme Court of Nevada, as well as settled disputes through various forms of conflict resolution including mediation and arbitration.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
About Newmeyer & Dillion
For more than 30 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, construction 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.
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Champagne Wishes and Caviar Dreams. Unlicensed Contractor Takes the Cake
August 31, 2020 —
Garret Murai - California Construction Law BlogBefore the Kardashians, before Empire, before Crazy Rich Asians there was Lifestyles of the Rich and Famous with Robin Leach. The next case, Moore v. Teed, Case No. A153523 (April 24, 2020), 1st District Court of Appeals, is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.”
Moore v. Teed
The $13 Million Dollar “Fixer Upper”
Justin Moore just wanted to buy a house in San Francisco. But he couldn’t afford one in the neighborhoods he preferred. But in 2011, luck struck, when Moore met Richard Teed, a real estate agent with “over 25 years of experience as a building contractor,” “an extensive background in historic restorations” and a “deep understanding of quality construction.” Teed told Moore that he could locate a “lower-priced fixer-upper in a choice neighborhood and then renovate it.” Moore was sold.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
