Property Damage, Occurrences, Delays, Offsets and Fees. California Decision is a Smorgasbord of Construction Insurance Issues
November 21, 2017 —
Garret Murai - California Construction Law BlogOriginally published by CDJ on November 15, 2017
I read once that 97 percent of cases never go to trial. However, there are still the ones that do. And, then, there are the ones that do both. The following case, Global Modular, Inc. v. Kadena Pacific, Inc., California Court of Appeals for the Fourth District, Case No. E063551 (September 8, 2017), highlights some of the issues that can arise when portions of cases settle and other portions go to trial, the recovery of delay damages on a construction project through insurance, and the recovery of attorneys’ fees.
Global Modular, Inc. v. Kadena Pacific, Inc.
The U.S. Department of Veterans Affairs contracted with general contractor Kadena Pacific, Inc. (Kadena) to oversee construction of its Center for Blind Rehabilitation in Menlo Park, California. Kadena, in turn, contracted with subcontractor Global Modular, Inc. (Global) to construct, deliver and install 53 modular units totaling more than 37,000 square feet for a contract price of approximately $3.5 million.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
One Stat About Bathrooms Explains Why You Can’t Find a House
June 10, 2015 —
Patrick Clark – BloombergThirty-six percent. That’s the share of homes built in the U.S. last year that had three or more bathrooms, up from 26 percent in 2005, according to the U.S. Census Bureau. If you’re on the market for your first home, that statistic can help explain why you’re having a hard time finding something you can afford.
In the years since the recession, builders have devoted their energy to “move-up” homes, which is what the industry calls houses that are too expensive for most first-time buyers. The result is clear from the bureau’s report on the characteristics of new housing, released on Monday: New homes have more bedrooms, bathrooms, and parking spaces. If you prefer a more conventional measure, the median square footage for new homes has increased 10 percent in the past decade.
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Patrick Clark, Bloomberg
The Best Lawyers in America© Peer Review Names Eight Newmeyer & Dillion Partners in Multiple Categories and Two Partners as Orange County’s Lawyers of the Year in Construction and Insurance Law
August 26, 2015 —
Press ReleaseNewmeyer & Dillion is pleased to announce that a number of its partners have again been recognized by
TheBest Lawyers in America© peer review as some of California’s Best Lawyers in multiple categories.
Our partners were recognized in the following practice areas in 2016 for Newport Beach, CA:
Michael S. Cucchissi / Real Estate Law
Jeffrey M. Dennis / Insurance Law
Gregory L. Dillion / Commercial Litigation, Construction Law, Insurance Law, Litigation - Construction, and Litigation - Real Estate
Joseph A. Ferrentino / Litigation – Construction and Litigation - Real Estate
Thomas F. Newmeyer / Commercial Litigation, Construction Law, and Litigation - Real Estate
John A. O'Hara / Litigation - Construction
Bonnie T. Roadarmel / Insurance Law
Carol Sherman Zaist/ Commercial Litigation
Beyond the above recognition, Greg Dillion and Tom Newmeyer were selected respectively as Orange County’s “Lawyers of the Year 2016” in Insurance Law and Construction Law. Greg Dillion and Joe Ferrentino previously have been honored as Orange County “Lawyers of the Year 2015” in Real Estate Litigation as well.
“We take pride in hiring great attorneys who will deliver the highest quality service and results for our clients. This recognition confirms that we are doing just that. It is a great honor and well deserved recognition for our partners to be selected by their peers as the Best Lawyers in their fields,” said Managing Partner, Jeff Dennis.
Because of the rigorous and transparent methodology used by Best Lawyers, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a prestigious honor. Inclusion in the Best Lawyers in America® 2016 is based on a rigorous national survey involving over 6.7 million detailed evaluations by other lawyers. For additional information, visit www.bestlawyers.com.
About Newmeyer & Dillion LLP
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With more than 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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Grad Student Sues UC Santa Cruz over Mold in Residence
November 13, 2013 —
CDJ STAFFMatthew Richert, a graduate student at UC Santa Cruz, and his wife have filed a lawsuit against UC Santa Cruz, alleging the residence they rented from the university was contaminated with mold, causing problems for them and their children.
The family noticed the signs of mold on the walls, but did not initially connect it with their daughter’s health problems, until they mentioned it to their doctor. The doctor sent a letter to the university requesting that the family be transferred to another unit if the mold problem could not be remedied. Mr. Richert made five such requests.
Eventually the university moved the family to a hotel as they investigated the unit. The Richert’s unit remains unoccupied, and a Santa Cruz spokesperson noted that 60 of the units showed mold problems.
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The Nightmare Scenario for Florida’s Coastal Homeowners
April 20, 2017 —
Christopher Flavelle - BloombergOn a predictably gorgeous South Florida afternoon, Coral Gables Mayor Jim Cason sat in his office overlooking the white-linen restaurants of this affluent seaside community and wondered when climate change would bring it all to an end. He figured it would involve a boat.
When Cason first started worrying about sea-level rise, he asked his staff to count not just how much coastline the city had (47 miles) or value of the property along that coast ($3.5 billion). He also told them to find out how many boats dock inland from the bridges that span the city’s canals (302). What matters, he guessed, will be the first time a mast fails to clear the bottom of one of those bridges because the water level had risen too far.
“These boats are going to be the canary in the mine,” said Cason, who became mayor in 2011 after retiring from the U.S. foreign service. “When the boats can’t go out, the property values go down.”
If property values start to fall, Cason said, banks could stop writing 30-year mortgages for coastal homes, shrinking the pool of able buyers and sending prices lower still. Those properties make up a quarter of the city’s tax base; if that revenue fell, the city would struggle to provide the services that make it such a desirable place to live, causing more sales and another drop in revenue.
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Christopher Flavelle, Bloomberg
Encinitas Office Obtains Complete Defense Verdict Including Attorney Fees and Costs After Ten Day Construction Arbitration
May 23, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPartner Vik Nagpal and Associate Attorney Tim McNulty of the Encinitas office recently obtained a substantial victory on behalf of BWB&O’s client after a 10-day binding construction arbitration before a three-arbitrator panel of the American Arbitration Association.
BWB&O’s client was sued by the Owner of a commercial office building related to a multimillion-dollar tenant improvement project in San Diego. The Owner asserted construction defect damages, delay damages, architectural negligence, fraudulent billing practices and consequential damages of $3.6 million dollars. BWB&O’s client claimed breach of contract damages against the owner for failure to pay invoices.
The Owner who had substantial financial resources and a personal spite against the general contractor, unreasonably pursued the case with an extensive team of lawyers and experts. At an earlier full-day mediation, the owner rejected a reasonable settlement offer which included a settlement payment to the Owner and the client’s agreement to dismiss their affirmative claim for damages.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
California Appeals Court Remands Fine in Late Completion Case
November 18, 2011 —
CDJ STAFFThe California Court of Appeals in Stanislaus County has reversed the decision of the lower court in Greg Opinski Construction Inc. v. City of Oakdale. The earlier court had awarded the city of judgment of $54,000 for late completion, $3,266 for repair of construction defects and interest, and $97,775 in attorneys’ fees. The late completion of the project was due to actions by the City of Oakdale, however, the court rejected Opinski’s argument that the California Supreme Court decision in Kiewit did not allow this, as his contract with the city established a procedure for claiming extensions.
The appeals court noted that the Kiewit decision has been “criticized as an unwarranted interference in the power of contracting parties to shift the risk of delays caused by one party onto the other party by forcing the second party to give the first notice of any intention to claim an extension of time based on delays caused by first.” They cited Sweet, a professor at Boalt Hall, UC Berkeley’s law school, that Kiewit “gutted” the “provision that conditions the contractor’s right to claim an extension of time for delays beyond his control.”
Further changes in California law in response to the Kiewit decision lead to the current situation which the court characterized as “if the contractor wished to claim it needed an extension of time because of delays caused by the city, the contractor was required to obtain a written change order by mutual consent or submit a claim in writing requesting a formal decision by the engineer.”
Opinski also argued that the lower court misinterpreted the contract. The Appeals court replied that “Opinski is mistaken.” He cited parts of the contract regarding the increase of time, but the court rejected these, noting that “an inability to agree is not the same as an express rejection.”
The court also rejects Opinski’s appeal that “the evidence the project was complete earlier than September 30, 2005, is weightier than the evidence to the contrary,” which they describe as “not a winning appellate argument.” The court points out that the role of an appeals court is not to reweigh the evidence, but to determine “whether the record contains substantial evidence in support of the judgment.”
The court did side with Opinski on one question of the escrow account. They rejected most of his arguments, repeating the line “Opinski is mistaken” several times. They decided that he was mistaken on the timing of the setoff decision and on whether the city was the prevailing party. However, the appeals court did find that Opinski was not liable for interest on the judgment.
The appeals court rejected the awarding of prejudgment interest to the city as the funds from which the judgment was drawn was held in an escrow account. The court noted that the city had access to the funds and could “access the funds when it determined that Opinski had breached the contract.” The appeals court noted that the judgment exhausted the escrow balance and remanded the case to the lower court to determine the amount own to Opinski.
Read the court’s decision…
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Understanding the Real Estate and Tax Implications of Florida's Buyer Ban Law
July 16, 2023 —
Kelly Erb - White and Williams LLPLast month, Gov. Ron DeSantis (R) of Florida signed a new law that would prohibit people who are not U.S. citizens or permanent residents and whose "domicile" is in China from purchasing certain real property in the state. Generally, the prohibition applies to agricultural land and other land within ten miles of restricted areas, including military bases and infrastructure like airports and wastewater treatment plants.
The law, which takes effect on July 1, 2023, would also impose criminal penalties on any person or real estate company that knowingly sells real estate in the Sunshine State to anyone impacted by the ban.
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Kelly Erb, White and Williams LLPMs. Erb may be contacted at
erbk@whiteandwilliams.com
