Seventh Circuit Remands “Waters of the United States” Case to Corps of Engineers to Determine Whether there is a “Significant Nexus”
July 10, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Association Insurance Company v. Carbondale Glen Lot E-8, LLC: Federal Court Reaffirms That There Is No Duty to Defend or Indemnify A Builder For Defective Construction Work
December 20, 2017 —
David M McLain - Colorado Construction Litigation BlogIn a case that squarely confronts the juxtaposition of an insurer’s duty to defend or indemnify its insured for construction related defects, the United States District Court for the District of Colorado recently granted an insurer’s motion for summary judgment on both matters against a construction subrogee, in Ass’n Ins. Co. v. Carbondale Glen Lot E-8, LLC, No. 15-cv-02025-RPM, 2016 WL 9735743, at *1 (D. Colo. Oct. 10. 2017).
Mountainview Construction Services, LLC (“MCS”) served as the general contractor for the construction of a residence on a lot owned by Glen Lot E-8, LLC (“E-8”). MCS took out a Commercial General Liability Policy (“Policy”) with Association Insurance Company (“AIC”) that provided coverage to MCS for the relevant time period for the construction of the residence. E-8 then asserted a series of claims against MCS, based on the allegation that MCS and its subcontractors defectively constructed the home by, among other things, building the residence two feet too high in violation of applicable codes. E-8 also argued that MCS and its subcontractors made significant alterations and/or deviations from the original project specifications without obtaining E-8’s consent or approval from relevant authorities. MCS tendered the claim to AIC for defense and indemnity. In turn, AIC declined coverage on the argument that the Policy precluded any coverage for defective work MCS may have performed on the project, absent damage to person or other property.
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David M McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Wendel Rosen Attorneys Named as Fellows of the Construction Lawyers Society of America
October 26, 2017 —
Wendel Rosen Black & Dean LLP - California Construction Law BlogWendel Rosen is proud to announce that two of its attorneys, Garret Murai and Quinlan Tom, have been named as Fellows of the Construction Lawyers Society of America. CLSA, an invitation-only honors society, is limited to 1,200 construction attorneys worldwide. Garret and Quinlan serve as co-chairs of Wendel Rosen’s Construction Practice Group.
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Wendel Rosen Black & Dean LLP
Ninth Circuit Resolves Federal-State Court Split Regarding Whether 'Latent' Defects Discovered After Duration of Warranty Period are Actionable under California's Lemon Law Statute
December 17, 2015 —
Laura C. Williams & R. Bryan Martin – Haight Brown & Bonesteel LLPIn Daniel v. Ford Motor Company (filed 12/02/15), the Ninth Circuit resolved a federal and state court split on the issue of whether consumers can sustain a breach of implied warranty claim under California’s Song Beverly Consumer Warranty Act (aka the “lemon law” statute) for “latent” defects discovered after the warranty period has expired. Answering this question in the affirmative, the Ninth Circuit followed the holding in the California state appellate decision of Mexia v. Rinker Boat Co. 95 Cal.Rptr.3d 285 (2009), which definitively determined there is nothing in California’s lemon law that requires a consumer to discover a latent defect during the duration of the warranty.
The underlying class action lawsuit was brought in federal district court by purchasers of Ford Focus vehicles. The plaintiffs alleged Ford was aware of, but failed to disclose, a rear suspension defect in the Focus that resulted in premature tire wear which can cause decreased vehicle control, catastrophic tire failure and drifting on wet or snowy roads. The plaintiffs alleged a number of claims including violations of California’s Song Beverly Consumer Warranty Act and Magnuson Moss Warranty Act. Ford successfully moved for summary judgment on all claims prompting an appeal.
Reprinted courtesy of
Laura C. Williams, Haight Brown & Bonesteel LLP and
R. Bryan Martin, Haight Brown & Bonesteel LLP
Ms. Williams may be contacted at lwilliams@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
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The Hidden Dangers of Construction Defect Litigation
March 28, 2012 —
David M. McLain, Colorado Construction LitigationDavid M. McLain, writing at Colorado Construction Litigation, has an interesting blog post republishing his article in Common Interests magazine, the monthly periodical of the Rocky Mountain Chapter of the Community Associations Institute. In his article, he touches on a number of pitfalls in construction defect litigation, including the potential conflicts of interests facing HOAs. He also considers the problems homeowners can face, including both “strong-arm tactics” taken by attorneys to compel homeowners to join the lawsuit, or situations in which the interests of the HOA do not match those of the homeowners. He writes:
There is also a conflict of interest with individual owners who attempt to opt out of the case. This can lead to shocking strong-arm tactics on the part of plaintiffs’ attorneys. In one instance, a plaintiffs’ attorney sent a letter to an individual homeowner that stated that as a 1/58th owner of the common elements, if he refused to go along with the suit, and there was ultimately a finding in favor of the HOA which was in any way limited by his refusal to participate, he would be personally liable for 1/58th of the HOA’s total damages. In another instance, a different plaintiffs’ attorney sent a letter to a homeowner who wanted the builder to perform warranty repairs, informing the owner that if he let the builder perform any repairs, the attorney would bill the HOA according to the fee agreement entered by the HOA board (without knowledge or consent of non-board members) and that the HOA would assess the homeowner for that expense. These are just two examples of conflicts which may arise between the HOA board and individual homeowners when the HOA pursues CD cases.
Another example of a conflict which will arise as a result of CD litigation occurs post-settlement. When an HOA settles for less than 100% of the amount necessary to fund all repairs outlined by its experts, plus attorneys’ fees and litigation costs, there will obviously be a shortfall in the amount necessary to fix the development. The HOA board must then choose to impose a special assessment to cover the shortfall or to make some, but not all, of the repairs outlined by its experts. In choosing the latter, the conflict arises with respect to which homes get fixed and which do not. In this situation, the HOA board has acted as the attorney-in-fact for the individual owners by bringing claims on their behalf, and has compromised those claims without their knowledge or consent.
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Reprinted courtesy of David M. McLain of Higgins, Hopkins, McClain & Roswell, LLC. Mr. McClain can be contacted at mclain@hhmrlaw.com.
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Unwrapped Pipes Lead to Flooding and Construction Defect Lawsuit
July 31, 2013 —
CDJ STAFFHomeowners in New Jersey have filed a lawsuit over unwrapped pipes in exterior walls. During the cold winter weather, the pipes froze, leading one homeowner to experience a “massive leak.” A plumber was able to end the flooding by shutting off water to the house. He then told the homeowner, Robert Long, that he had been doing the same at other homes in the community.
The Longs are now party to a class-action lawsuit which seeks that the homebuilder, Ryan Homes, tell those who have purchased homes about the defect. Further, the suit seeks compensation for those whose home have been damaged, and repairs to assure that additional homes do not have their pipes burst.
Stephen P. DeNittis, who is representing the Longs, said that “the code violation alleged in this case is particularly troublesome because it involves unprotected pipes hidden inside an exterior wall.”
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2019’s Biggest Labor and Employment Moves Affecting Construction
January 27, 2020 —
Micah Dawson - Construction ExecutiveThe construction industry is fueled by change, which is the only constant in life and construction. Still, continuous change makes compliance with state and federal laws and regulations more difficult.
While contractors may thrive on the frantic pace, sometimes it is good to look back and ensure they have an understanding of, and are complying with, the newest regulations and laws.
Top 10 Stories Dominating Employment Law in Construction
1. Trio of Federal Joint Employment Rules Expected in December 2019
Joint employment took center stage during the November 20, 2019 release of the Fall Regulatory Agenda, as three separate federal agencies announced plans to move forward with revised joint employment rules in December. While the Department of Labor and the National Labor Relations Board had already released versions of their draft rules, the Equal Employment Opportunity Commission also announced that it would weigh in on the topic before the end of 2019. As of January 10, 2020, the EEOC had not done so.
2. NLRB Tightens Union Access to Employer Property
In a ruling that levels the labor relations playing field, the NLRB ruled that employers could rightfully eject outside union representatives soliciting petition signatures from a shared shopping center parking area. When read in conjunction with an earlier 2019 decision conferring greater rights to limit on-premises union activity by abolishing the “public space” exception, the NLRB has significantly restricted union access to private employer property.
Reprinted courtesy of
Micah Dawson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Dawson may be contacted at
mdawson@fisherphillips.com
Arguing Cardinal Change is Different than Proving Cardinal Change
April 05, 2021 —
David Adelstein - Florida Construction Legal UpdatesThe cardinal change doctrine has become a popular doctrine for a contractor to argue under but remains an extremely difficult doctrine to support and prove. Arguing cardinal change is one thing. Proving cardinal change is entirely different. As shown below, this is a doctrine with its origins under federal government contract law with arguments extending outside of the federal government contract arena. For this reason, the cases referenced below are not federal government contract law cases, but are cases where the cardinal change doctrine has been argued (even though these cases cite to federal government contract law cases).
A party argues cardinal change to demonstrate that the other party (generally, the owner) materially breached the contract based on the cardinal change. In reality, a party argues cardinal change because they have cost overruns they are looking to recover and this doctrine may give them an argument to do so. But it is important to recognize the distinction between raising it as an argument and the expectation that this (difficult doctrine to prove) will carry the day.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
