Seattle Washington Building Expert Directory

Measure of Damages for a Chattel Including Loss of Use

November 16, 2020 — David Adelstein - Florida Construction Legal Updates
In a non-construction case, but an interesting case nonetheless, the Second District Court of Appeals talks about the measure of damages when dealing with chattel (property) including loss of use damages. Chattel, you say? While certainly not a word used in everyday language, a chattel is “an item of tangible movable or immovable property except real estate and things (such as buildings) connected with real property.” Equipment, machinery, personal items, furniture, etc. can be considered chattel. With respect to the measure of damages for a chattel:

“Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value,” the plaintiff may make an election out of two theories of recovery in addition to compensation for the loss of use. Badillo v. Hill, 570 So. 2d 1067, 1068 (Fla. 5th DCA 1990) (quoting Restatement of Torts § 928 (Am. Law Inst. 1939)). In addition to compensation for the loss of use, the plaintiff may elect either “the difference between the value of the chattel before the harm and the value after the harm” or “the reasonable cost of repairs or restoration where feasible, with due allowance for any difference between the original value and the value after repairs.” Id. (quoting Restatement of Torts § 928).

Sack v. WSW Rental of Sarasota, LLC, 45 Fla.L.Weekly D2306a (Fla. 2d DCA 2020). Sack is a good example of a case dealing with the measure of damages with a chattel, here, an aircraft, including loss of use damages. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Lump Sum Subcontract? Perhaps Not.

August 20, 2019 — David Adelstein - Florida Construction Legal Updates
Lump sum subcontract? Perhaps not due to a recent ruling where the trial court said “No!” based on the language in the subcontract and contract documents generally incorporated into the subcontract. This is a ruling on an interpretation of a subcontract and contract documents incorporated into the subcontract that I do not agree with and struggle to fully comprehend. The issue was whether the subcontract amount was a lump sum or subject to an audit, adjustment, and definitization based on actual costs incurred. Of course, the subcontractor (or any person in any business) is not just interested in recouping actual costs, but there needs to be a margin to cover profit and home office overhead that does not get factored into field general conditions. In United States v. Travelers Casualty and Surety Company, 2018 WL 6571234 (M.D.Fla. 2018), a prime contractor was hired to perform work on a federal project. During the work, the Government issued the prime contractor a Modification that had a not-to-exceed value and required the prime contractor to track its costs for this Modification separate from other contract costs. In other words, based on this Modification, the prime contractor was paid its costs up to a maximum amount and the prime contractor would separately cost-code and track the costs for this work differently than other work it was performing under the prime contract. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Newmeyer & Dillion Announces New Partner Bahaar Cadambi

May 06, 2019 — Newmeyer & Dillion
Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that Newport Beach attorney Bahaar Cadambi has been elected to partnership. "Bahaar has worked hard to become an integral part of the firm's litigation practice, delivering exceptional value to her colleagues and clients at every opportunity," said the firm's Managing Partner, Paul Tetzloff, "We are proud to count her among our partners and look forward to her continued success and contributions." Cadambi concentrates her practice in business, insurance, and real estate litigation. She represents businesses, homebuilders, developers, and general contractors in complex, multi-party real estate, construction defect, and insurance disputes. She also represents individuals and businesses across a variety of business litigation matters. Her approach to litigation ensures that clients are informed of all potential strategies, the consequences of those strategies, and how the implementation of those strategies will affect their business. Passionate about the legal community, Cadambi is an adjunct professor at the University of Southern California Gould School of Law and an active member of CREW (Commercial Real Estate Women Orange County). She is also a Barry's Bootcamp and yoga enthusiast, lover of all things interior design, avid traveler, devoted wife, and favorite aunt to two energetic nieces and one cheerful nephew. Bahaar earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California, Hastings College of Law. Prior to joining Newmeyer & Dillion, she served as a Judicial Extern for the Honorable William Alsup in the U.S. District Court for the Northern District of California. Bahaar Cadambi: bahaar.cadambi@ndlf.com

Practice Areas

Business Litigation
Construction Litigation
Insurance Law

About Newmeyer & Dillion For almost 35 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, privacy & data security 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. Read the court decision
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Keep it Simple with Nunn-Agreements in Colorado

June 28, 2021 — Jean Meyer - Colorado Construction Litigation
On May 24, 2021, the Colorado Supreme Court published its decision in Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass'n.[1] There, the Colorado Supreme Court was tasked with answering whether an insurer, who is defending its insured under a reservation of rights, is entitled to intervene as of right under C.R.C.P. 24(a)(2) where the insured enters into a Nunn agreement with a third-party claimant, but rather than entering into a stipulated judgment, agrees with the third party to proceed via an uncontested trial to determine liability and damages. Interestingly, however, while the Court ultimately answered the above question in the negative, the real lesson from the Colorado Supreme Court’s decision is that Colorado litigants should not seek a trial court’s blessing as to liability and damages through non-adversarial proceedings when using Nunn-Agreements. Or, as articulated in Justice Carlos Samour’s vociferous dissenting opinion, Colorado litigants desiring to enter into a Nunn-Agreement should not proceed with a non-adversarial hearing, as doing so is “offensive to the dignity of the courts,” constitutes a “bogus,” “faux,” “sham” and “counterfeit” proceeding, and the hearing provides “zero benefit.” By way of background, the case arrived in front of the Colorado Supreme Court based on the following fact pattern. A homeowner association (Bolt Factory Lofts Owners Association, Inc.) (“Association”) brought construction defect claims against a variety of prime contractors and those contractors subsequently brought third-party construction defect claims against subcontractors. One of the prime contractors assigned their claims against a subcontractor by the name Sierra Glass Co., Inc. (“Sierra”) to the Association. The other claims between the additional parties settled. On the eve of trial involving only the Association’s assigned claims against Sierra, the Association made a settlement demand to Sierra for $1.9 million. Sierra asked its insurance carrier, Auto-Owners Insurance, Co. (“AOIC”), which had been defending Sierra under a reservation of rights letter, to settle the case for that amount, but AOIC refused. This prompted Sierra to enter into a “Nunn-Agreement” with the Association whereby the case would proceed to trial, Sierra would refrain from offering a defense at trial, the Association would not pursue any recovery against Sierra for the judgment, and Sierra would assign any insurance bad faith claims it may have had against AOIC to the Association. Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

California Supreme Court Finds Negligent Supervision Claim Alleges An Occurrence

July 21, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Answering a question posed by the Ninth Circuit, the California Supreme Court found that a suit against a employer for negligent hiring, retention and supervision of a employee who intentionally injures a third party alleges an occurrence under a CGL policy. Liberty Surplus Co. Corp. v. Ledesma & Meyer Construction Co., 2018 Cal. LEXIS 4063 (Cal. June 4, 2018) Ledesma & Meyer Construction Company (L&M) contracted with the school district to manage a construction project at a middle school. L&M hired Darold Hecht as an assistant superintendent on the project. In 2010, Jane Doe, a 13-year-old student at the school, sued alleging that Hecht had sexually abused her. Doe’s claims included a cause of action against L&M for negligent hiring, retaining, and supervising Hecht. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Real Estate & Construction News Round-Up 01/26/22

February 07, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
The future of traditional real estate skills for virtual land buys is questioned, China’s property sector might experience policy easing, U.S. commercial real estate sales set records in 2021, and more.

As the platforms and business case for virtual land buys mature, the future of traditional real estate skills remains unclear when it comes to managing virtual ownership and development. (Patrick Sisson, Bisnow)
China’s real estate sector is likely to see “significant easing” in the policies that govern it after stricter financing rules for property development set in 2020 were met with debt, causing a contraction in the market. (Reuters)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

OSHA Releases COVID-19 Guidance

June 15, 2020 — L. Stephen Bowers & Joshua Tumen - White and Williams LLP
The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance. The COVID-19 outbreak has increased demand for N95 filtering face piece respirators (N95 FFRs), limiting availability for workers in healthcare and emergency response. On April 3, 2020, OSHA issued interim guidance for employers to combat the supply shortages of N95 FFRs and to comply with the respiratory protection standard (29 CFR § 1910.134). This guidance will remain in effect until further notice and applies in all industries. Employers must continue to manage their respiratory protection programs and be mindful of N95 FFR shortages. Specifically, employers should identify and evaluate respiratory hazards in the workplace, and develop and implement written respiratory protection programs. Businesses should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 FFRs. Some examples provided in the guidance include using portable local exhaust systems or moving operations outdoors. Employers may also consider temporarily suspending non-essential operations, to the extent such operations are not already suspended due to state mandates. Reprinted courtesy of L. Stephen Bowers, White and Williams LLP and Joshua Tumen, White and Williams LLP Mr. Bowers may be contacted at bowerss@whiteandwilliams.com Mr. Tumen may be contacted at tumenj@whiteandwilliams.com Read the court decision
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San Francisco International Airport Reaches New Heights in Sustainable Project Delivery

November 21, 2022 — Aileen Cho - Engineering News-Record
Ten years ago, Geoff Neumayr decided he was tired of “doing design and construction by combat.” San Francisco International Airport had completed a master plan for the complex and the front of the airport facilities doing things the traditional way. Reprinted courtesy of Aileen Cho, Engineering News-Record Ms. Cho may be contacted at choa@enr.com Read the full story... Read the court decision
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