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DIRECTORY AND CAPABILITIES

Idaho Construction Executive Found Guilty of Fraud and Tax Evasion

October 01, 2013 — CDJ STAFF
A former president of the Associated General Contractors in Idaho has been found guilty of attempting to defraud the U.S. Government. Elaine Martin filed false income taxes, allowing her to participate in a program that helped economically and socially disadvantaged businesses. Ms. Martin has convicted on both the fraud tax evasion charges. Ms. Martin’s business partner, Darrell Swigert, has also been convicted. He was found guilty of obstruction of justice. Mr. Swigert helped Ms. Martin conceal the extent of her income. Read the court decision
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Insurance Client Alert: Denial of Summary Judgment Does Not Automatically Establish Duty to Defend

January 28, 2015 — Valerie A. Moore and Christopher Kendrick – Haight Brown & Bonesteel LLP
In McMillin Companies v. American Safety Indemnity (No. D063586, filed 1/20/15), a California appeals court ruled that an insurer's loss of a summary judgment motion on the duty to defend does not necessarily establish that a duty to defend existed. McMillin was the general contractor for a series of residential construction projects, sued in a construction defect action brought by 117 homeowners. McMillin tendered its defense to its subcontractors' insurers, including American Safety (ASIC), claiming status as an additional insured (AI). ASIC denied the tender. McMillin sued ASIC and other insurers alleging breach of contract and bad faith for the failure to defend McMillin as an additional insured. Eventually, all of the other insurers settled, leaving ASIC as the sole defendant. ASIC moved for summary judgment, but the trial court denied the motion, ruling that ASIC had failed to carry its burden of disproving coverage under a blanket additional insured endorsement in the policy. Reprinted courtesy of Valerie A. Moore, Haight Brown & Bonesteel LLP and Christopher Kendrick, Haight Brown & Bonesteel LLP Ms. Moore may be contacted at vmoore@hbblaw.com, Mr. Kendrick may be contacted at ckendrick@hbblaw.com Read the court decision
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Hospital Inspection to Include Check for Construction Defects

October 08, 2013 — CDJ STAFF
The Temecula Valley Hospital is almost ready to be opened. One last step is an inspection from the California Department of Public Health’s Licensing and Certification Division. The inspection will take place over three to five days and will include not only building defects, but will also seek to identify problems that could compromise patient care. Any problems identified by the inspectors will have to be remedied before the hospital can open. Darlene Wetton, the CEO/president of the hospital said that the hospital worked with both the state and contractors to assure that the construction met the state standards. Currently, the city of Temecula does not have a hospital. Read the court decision
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Feds OK $9B Houston Highway Project After Two-Year Pause

March 20, 2023 — James Leggate - Engineering News-Record
The Federal Highway Administration has agreed to let a $9-billion Texas highway reconstruction project proceed after a two-year pause over concerns linked to the project’s potential impact on communities along the route, including a lawsuit filed by Harris County to halt contracting, pending a new environmental impact review. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Ambitious Building Plans in Boston

November 18, 2011 — CDJ STAFF

Although most are unlikely to change the Boston skyline, there are several large projects on the drawing boards. The site BostInnovation covered ten of them in a recent post. Downtown Boston will be the site of several of these large projects, including three towers to be added to the Christian Science Plaza, a 404-unit residential tower in the Theater District, and perhaps the largest of these projects, a 47-story tower to be built over Copley Plaza, which will tower over the adjacent buildings. None of the planned buildings will challenge the Hancock Tower’s 60 stories.

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Negligent Misrepresentation in Sale of Building Altered without Permits

September 30, 2011 — CDJ STAFF

The Supreme Court of New Hampshire has ruled in the case Wyle v. Lees. The Leeses owned a two-unit apartment building in North Conway, New Hampshire. They hired a contractor to add a third, larger apartment, including a two-car garage. The Leeses and their contractor submitted a building permit application. They were informed that site plan review was required. After receiving approval on the site plan, construction started. At no point did they obtain a building permit and the construction was never inspected. The Leeses subsequently added more space to the unit, reducing parking spaces below the minimum required. Again, they did not obtain a building permit.

In 2007, three years after all these changes were complete, the Leeses sold their building to Mr. Wyle. To the question “are you aware of any modifications or repairs made without the necessary permits?” they answered “no.” About six weeks after closing, Wyle “received a letter from the town code enforcement officer regarding the legality of the removal of a garage door from the new unit.” A subsequent inspection revealed “numerous building and life safety code violations.”

Mr. Wyle brought a claim against the Leeses for negligent misrepresentation. The defendants filed a motion “seeking to preclude economic loss damages.” At a two-day bench trial, Mr. Wyle won. The Leeses appealed.

The appeals court found that “the defendants negligently misrepresented that the premises were licensed for immediate occupancy and that the defendants had obtained all necessary permits,” and thus upheld the lower court’s finding of negligent misrepresentation. The appeals court also rejected the Leeses’ argument that damages must be apportioned on all parties, including “the plaintiff himself, the plaintiff’s building inspector, and the defendant’s contractor,” finding a lack of “adequate evidence.”

The Leeses further argued that they were unaware that modifications and repairs were accomplished without the required permits. The appeals court noted that “the trial court found that both the conditional approval and final approval for the site plan stated that a building permit and a certificate of occupancy were required prior to any use.” The court concluded that the Leeses “knew or should have known of the falsity of their representation.”

The appeals affirmed the findings of the trial court.

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There Are Consequences to Executed Documents Such as the Accord and Satisfaction Defense

October 01, 2024 — David Adelstein - Florida Construction Legal Updates
A federal government contractor in Jackson Construction Co., Inc. v. U.S., 62 Fed.Cl. 84 (Fed.Cl. 2024) sought delay damages against the government. It lost. The reason for the loss is a crucial reminder that documents parties sign ALWAYS matter. ALWAYS!! In Jackson Construction Co., the contractor’s delay claim was premised on relocating a waterline. The contractor, however, received additional money for relocating the waterline, but no additional time, and this was memorialized in a modification to the contract (i.e., a change order). In executing the modification for the additional work, the contractor did NOT reserve rights for time or money. Indeed, the modification reflected that the monetary adjustment constitutes full compensation for the additional work including delay, namely:

The contract period of performance remains the same. It is further understood and agreed that this adjustment constitutes compensation in full on behalf of the contractor and his subcontractors and suppliers for all costs and markup directly or indirectly, including extended overhead, attributable to the change order, for all delays related thereto, and for performance of the change within the time frame stated.

Jackson Construction Co., supra, at 90.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Maritime Law: An Albatross for Contractors Navigating Marine Construction

January 03, 2022 — Cindy Matherne Muller - ConsensusDocs
“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1 Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions. What is admiralty jurisdiction? The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus. Read the court decision
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Reprinted courtesy of Cindy Matherne Muller, Jones Walker LLP
Ms. Muller may be contacted at cmuller@joneswalker.com

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