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DIRECTORY AND CAPABILITIES

California Supreme Court Confirms the Right to Repair Act as the Exclusive Remedy for Seeking Relief for Defects in New Residential Construction

February 22, 2018 — Brenda Radmacher – Construction Law Blog

The California Supreme Court recently issued its decision on a critical issue in the residential construction industry – the claims for construction defects that a California homeowner can bring against a builder or seller of new residential properties in California.

Holding

In McMillin Albany v. The Superior Court of Kern County, the Court held that California’s Right to Repair Act (California Civil Code, sections 895, et seq.) (the “Act”) is the exclusive remedy for homeowners claiming defective construction of new residences in California.

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Reprinted courtesy of Brenda Radmacher, Gordon & Rees
Ms. Radmacher may be contacted at bradmacher@grsm.com

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Governmental Immunity Waived for Independent Contractor - Lopez v. City of Grand Junction

September 17, 2018 — Frank Ingham - Colorado Construction Litigation Blog
On July 12, 2018, the Colorado Court of Appeals announced its decision in Lopez v. City of Grand Junction, 2018 WL 3384674 (Colo. App. 2018). The Court considered whether immunity is waived under Colorado’s Governmental Immunity Act (“CGIA”), pursuant to section C.R.S. § 24-10-106(1)(f), in situations where the public entity hired an independent contractor to perform the work. The Court held that if the public entity would have been liable under the CGIA for the conduct that caused the injury, had it performed the work itself, then it is liable for the work performed by its independent contractor. Read the court decision
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Reprinted courtesy of Frank Ingham, Higgins Hopkins McClain & Roswell, LLC
Mr. Ingham may be contacted at ingham@hhmrlaw.com

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Design Professional Asserting Copyright Infringement And Contributory Copyright Infringement

May 01, 2019 — David Adelstein - Florida Construction Legal Updates
Standard form construction contracts between an owner and design profesional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.” An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design. Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on. While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story. “To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id. In the second prong, the design professional must establish that the defendant copied constituent elements that are original. Id. There is also a claim known as contributory copyright infringement. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dadelstein@gmail.com

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ETF Bulls Bet Spring Will Thaw the U.S. Housing Market

April 08, 2014 — Corinne Gretler – Bloomberg
Build it and they will come, if it’s not too chilly. Traders have turned bullish on a security that tracks home construction companies, appliance makers and furniture retailers as spring finally ends the harsh winter. As the SPDR S&P Homebuilders ETF (XHB) heads for its first weekly gain since February, investors are buying options betting that the rebound will keep going. The cost of bullish contracts has risen to the highest versus bearish ones in 2 ½ years. The ETF has gained 2.2 percent this week. The exchange-traded fund of companies such as Ryland Group Inc., Whirlpool Corp. and Home Depot Inc. has rebounded 8 percent after reaching its lowest level this year on Feb. 3 as investors attribute weakness in the housing market to winter weather. Between December and February, snow covered 1.42 million square miles of the continental U.S., the 10th-largest snow cover in records going back to 1966, according to the National Climatic Data Center. Read the court decision
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Reprinted courtesy of Corinne Gretler, Bloomberg
Ms. Gretler may be contacted at cgretler1@bloomberg.net

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NJ Condo Construction Defect Case Dismissed over Statute of Limitations

June 11, 2014 — Beverley BevenFlorez-CDJ STAFF
According to an article by Matthew D. Stockwell of the firm Pillsbury Winthrop Shaw Pittman, LLP published in Lexology, “a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations.” Stockwell stated that the “aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.” Read the court decision
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Reprinted courtesy of

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S&P Near $1 Billion Mortgage Ratings Settlement With U.S.

January 14, 2015 — Tom Schoenberg and Edvard Pettersson – Bloomberg
Standard & Poor’s is close to a settlement of about $1 billion with the U.S. for allegedly misleading investors about its ratings of mortgage-backed securities before the subprime crisis, a person familiar with the matter said. The McGraw Hill Financial Inc. (MHFI) unit and the Justice Department may agree to settle the case as early as this quarter, according to the person, who asked not to be identified because the negotiations are confidential. The Justice Department has secured settlements worth tens of billions of dollars during the past two years from mortgage lenders and banks it blamed for the 2008 financial crisis. Those companies generated unprecedented amounts of shoddy mortgages that were packaged and sold to investors as securities, many of which turned out to be worthless despite their investment-grade ratings. Mr. Schoenberg may be contacted at tschoenberg@bloomberg.net; Mr. Pettersson may be contacted at epettersson@bloomberg.net Read the court decision
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Reprinted courtesy of Tom Schoenberg and Edvard Pettersson, Bloomberg

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2021 Construction Related Bills to Keep an Eye On [UPDATED]

March 08, 2021 — Christopher G. Hill - Construction Law Musings
Each year here at Musings, I try and highlight some key construction industry-related bills that are winding their way through the Virginia General Assembly. This year is no different, though this year does not have the action level that prior years have had. Without further ado, here are those that I spotted and which I will be “Tracking” as they move through the sausage-making process: HB2288– Virginia Public Procurement Act; construction contracts; requirement to submit list of subcontractors. Requires bidders or offerors on contracts for construction of $250,000 or more to submit along with their bid or proposal a list of all subcontractors, regardless of tier, that the bidder or offeror intends at the time of submitting the bid or proposal to use on the contract to perform work valued at $50,000 or more, including labor and materials. The bill requires such list to include certain information about each contractor. This bill also includes a re-passage provision that requires that it be re-enacted in the 2022 session to become effective. Finally, the Senate General Laws and Technology committee has continued this to the First Special Session. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Arbitration Provisions Are Challenging To Circumvent

May 13, 2019 — David Adelstein - Florida Construction Legal Updates
Arbitration provisions are enforceable and they are becoming more challenging to circumvent, especially if one of the parties to the arbitration agreement wants to arbitrate a dispute versus litigate a dispute. Remember this when agreeing to an arbitration provision as the forum for dispute resolution in your contract. There is not a one-size-fits-all model when it comes to arbitration provisions and how they are drafted. But, there is a very strong public policy in favor of honoring a contractual arbitration provision because this is what the parties agreed to as the forum to resolve their disputes. By way of example, in Austin Commercial, L.P. v. L.M.C.C. Specialty Contractors, Inc., 44 Fla.L.Weekly D925a (Fla. 2d DCA 2019), a subcontractor and prime contactor entered into a consultant agreement that contained the following arbitration provision:

Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between [Prime Contractor] and the [Owner]. Should the Prime Contract contain no specific requirement for the resolution of disputes or should the [Owner] not be involved in the dispute, any such controversy or claim shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing, and judgment upon the award by the Arbitrator(s) shall be entered in any Court having jurisdiction thereof.

The prime contract between the owner and prime contractor did not require arbitration. 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

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