Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment in Pinellas County Circuit Court
November 29, 2021 —
Bradley T. Guldalian - Traub LiebermanOn September 20, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment in Pinellas County Circuit Court in St. Petersburg, Florida, on behalf of a Homeowner who invited an acquaintance to his house to assist him with hanging a gutter on his roof. While he was assisting the Homeowner installing the gutter, the Plaintiff fell from a ladder and sustained a comminuted left intertrochanteric (hip) fracture. The Plaintiff was taken to the hospital, where he underwent open reduction, internal fixation of his left hip fracture. He was hospitalized for five days and released in wheelchair. He incurred more than $70,000 in medical bills and was confined to a wheelchair for two months.
The Plaintiff filed a negligence action against the Homeowner alleging he improperly set up the ladder causing it to become unstable, thereby creating a dangerous condition on the premises which proximately caused his fall. The Plaintiff claimed the Homeowner breached the duty he owed the Plaintiff to provide safe and stable equipment for his use. After engaging in discovery, Mr. Guldalian moved for summary judgment arguing that because the Plaintiff could not explain in his deposition why he fell from the ladder, the Plaintiff could not establish—as a matter of law—the Homeowner was negligent, did anything, or failed to do something, that proximately caused his injury. In support of his argument, Mr. Guldalian submitted the affidavit of an investigator who inspected the ladder after the Plaintiff’s fall and found no defect in, on, or about the ladder, and affirmed that the area where the ladder was set up had no raised or defective areas which could have caused the ladder to become unstable.
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Bradley T. Guldalian, Traub LiebermanMr. Guldalian may be contacted at
bguldalian@tlsslaw.com
In a Win for Design Professionals, California Court of Appeals Holds That Relation-Back Doctrine Does Not Apply to Certificate of Merit Law
December 20, 2017 —
Garret Murai - California Construction Law BlogThe year was 1995. The old guard was still in power in Sacramento. “Button-Down” Pete Wilson was Governor. Willie Brown, the self-nicknamed “Ayatollah of the Assembly,” was Speaker of the Assembly. And Bill “Huggy” Lockyer was Senate Pro Tem. Names that, for many reasons as of late, seem . . . well . . . let’s just say, “quaint.”
Their time, however, was coming to an end. Three years earlier, California voters approved Proposition 140, which instituted term limits for the first time in California. And by 1996, the first slate of legislators would be “termed out.” The immediate impact: It was the time for making deals because you didn’t know who would be keeping house next.
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Garret Murai, Wendel, Rosen, Black, Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Napa Quake, Flooding Cost $4 Billion in U.S. in August
September 10, 2014 —
Noah Buhayar - BloombergAn earthquake that struck the California wine country north of San Francisco and flooding in the U.S. last month caused more than $4 billion in economic losses, according insurance broker Aon Plc. (AON)
A 6.0-magnitude temblor shook the city of Napa on Aug. 24, damaging more than 1,100 buildings, injuring at least 258 people and causing about $2 billion in economic damages, the London-based broker said today in a report. Insured losses are expected to be in the hundreds of millions of dollars, because of the below-average extent of coverage, Aon said.
“Residential earthquake insurance penetration rates have gradually lowered in California during the past two decades from 33 percent in 1996 to roughly 10 percent today,” Steve Bowen, associate director and meteorologist for Aon Benfield Impact Forecasting, said in a statement. The Napa quake “serves as a reminder of the unpredictability and costly impacts.”
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Noah Buhayar, BloombergMr. Buhayar may be contacted at
nbuhayar@bloomberg.net
Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?
March 05, 2015 —
William L. Porter – Porter Law Group, Inc.The “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Completion will not prevent enforcement of a California Mechanics Lien.
The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.
The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.
What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien.
The usual error is two-fold. First, the statute states that the Notice is available when the owner “did not contract for the work of improvement”. The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner’s contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first “has knowledge” of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge.
The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective.
The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham “tenants” who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility.
For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner).
William L. Porter of
Porter Law Group, Inc. located in Sacramento, California may be contacted at (916) 381-7868 or bporter@porterlaw.com
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Public Policy Prevails: Homebuilders and Homebuyers Cannot Agree to Disclaim Implied Warranty of Habitability in Arizona
November 01, 2022 —
Ryan Bennett - The Subrogation StrategistIn Zambrano v. M & RC II LLC, et al., 2022 Ariz. LEXIS 309, the Supreme Court of Arizona held that a homebuilder and homebuyer could not waive or disclaim the implied warranty of workmanship and habitability. While the court would normally enforce a contract between two parties – even if one side made a “bad deal” – they will not do so if the contract’s terms are against public policy.
In this case, Tina Zambrano (Zambrano) signed a purchase agreement with the homebuilder to buy a newly built home. The agreement included provisions which expressly disclaimed any implied warranties, including the warranty of habitability and workmanship. After the purchase, Zambrano claimed that there were construction defects within the home, including popped nails in the drywall and issues with the home’s foundation. Zambrano sued the homebuilder for breach of the implied warranty of workmanship and habitability. The homebuilder moved for summary judgment based on the waivers within the contract and the trial court, agreeing that the waivers applied, dismissed the case. Zambrano appealed and the appellate court reversed the trial court’s decision. The appellate court specifically explained that Arizona has a public policy interest in protecting consumers.
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Ryan Bennett, White and Williams LLPMr. Bennett may be contacted at
bennettr@whiteandwilliams.com
Insurer Incorrectly Relies Upon "Your Work" Exclusion to Deny Coverage
June 10, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Eleventh Circuit reversed the district court's determination that there was no coverage based upon the policy's "your work" exclusion. Southern-Owners Ins. Co. v. Mac Contractors of Fla, LLC, 2019 U.S. App. LEXIS 10689 (11th Cir. April 11, 2019).
Mac Contractors contracted with the homeowners to custom build their home. After construction began, Mac left the site before completing the project and before the issuance of a certificate of occupancy. The homeowners sued, alleged damage to wood floors and the metal roof.
Southern-Owners originally agreed to defend under the CGL policy, but later withdrew the defense and filed this action for declaratory relief. The parties cross-filed motions for summary judgment. Southern-Owners argued that the "your work" exclusion applied to bar coverage. The "your work" exclusion barred coverage for "'property damage' to 'your work' arising out of it or any part of it and included in the 'products' completed operations hazard.'" The "products' completed operations hazard" included all "'property damage' occurring away from premises you own or rent and arising out of . . . 'your work' except . . . (1) products that are still in your physical possession; or (2) work that has not yet been completed or abandoned."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Where Breach of Contract and Tortious Interference Collide
January 11, 2022 —
Christopher G. Hill - Construction Law MusingsClaims for breach of contract are numerous in the construction law world. Without these claims we construction attorneys would have a hard time keeping the doors open. A 2021 case examined a different sort of claim that could arise (though, “spoiler alert” did not in this case) during the course of a construction project. That type of claim is one for tortious interference with business expectancy.
In Clark Nexsen, Inc. et. al v. Rebkee, the U. S. District Court for the Eastern District of Virginia gave a great explanation of the law of this type of claim in analyzing the following basic facts:
In 2018, Clark Nexsen, Inc. (“Clark”) and MEB General Contractors, Inc. (“MEB”) responded to Henrico County’s (“Henrico”) Request for Proposals (“RFP”) for the design and construction of a sport and convocation center (the “Project”). Henrico initially shortlisted Clark and MEB as a “design-build” team for the Project, but later restarted the search, issuing a second RFP. Clark and MEB submitted a second “design-build” proposal, but Henrico selected Rebkee Co. (“Rebkee”) for certain development aspects of the Project. MEB also submitted proposals to Rebkee, and Rebkee selected MEB as the design-builder for the Project. MEB, at Rebkee’s request, solicited proposals from three design firms and ultimately selected Clark as its design partner. From December 2019 to May 2020, Clark and MEB served as the design-build team to assist Rebkee in developing the Project. In connection therewith, Clark developed proprietary designs, technical drawings, and, with MEB, several cost estimates. In February 2020, MEB submitted a $294,334.50 Pay Application to Rebkee for engineering, design, and Project development work. Rebkee never paid MEB. Henrico paid MEB $50,000.00 as partial payment for MEB’s and Clark’s work. MEB then learned that Rebkee was using Clark’s drawings to solicit design and construction proposals from other companies. On July 23, 2020, Rebkee told MEB that Henrico directed it to cancel the design-build arrangement with MEB and Clark and pursue a different planning method. MEB and Clark sued and Rebkee for, among other claims, tortious interference with a business expectancy. Rebkee moved to dismiss the tortious interference claim.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
FBI Makes Arrest Related to Saipan Casino Construction
April 05, 2017 —
Matthew Campbell & Greg Farrell - BloombergThe Federal Bureau of Investigation arrested one person in connection with the death of a construction worker at Imperial Pacific International Holdings Ltd.’s casino on the remote U.S. island of Saipan, according to an agency spokeswoman.
“The FBI conducted a search and made an arrest in response to the recent death of an individual working at the construction site of the Imperial Pacific Resort,” Michele Ernst, a spokeswoman in the FBI’s Honolulu field office, said in an email Friday. “The investigation is related to allegations of a federal violation of the workplace visa system, including reports the company was systematically harboring individuals who are out of status and in violation of federal statutes."
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Matthew Campbell, Bloomberg and
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