New Jersey Appellate Decision Reminds Bid Protestors to Take Caution When Determining Where to File an Action
March 13, 2023 —
Brian Glicos & Nicholas J. Zaita - Peckar & Abramson, P.C.On February 21, 2023, the New Jersey Appellate Division held that University Hospital is not a “state administrative agency” and, therefore, the Appellate Division does not have original jurisdiction to determine the merits of an action commenced by an unsuccessful bidder to challenge the award of a contract. In re Protest of Contract for Retail Pharmacy Design, Constr., Start-up & Operation, Request for Proposal No. UH-P20-006, A-1667-20, 2023 WL 2125002 (N.J. Super. Ct. App. Div. Feb. 21, 2023).
Pursuant to Rule 2:2-3(a)(2) of New Jersey’s Rules of Court, final decisions or actions of any state administrative agency or officer may be appealed directly to the Appellate Division as of right. Accordingly, where an unsuccessful bidder chooses to challenge the award of a contract issued by, for example, the New Jersey Department of Transportation, the unsuccessful bidder must file its action directly with the Appellate Division. On the other hand, where an unsuccessful bidder wishes to challenge a contract award made by a local municipality (among a slew of other public entities), the Superior Court Law Division maintains original jurisdiction over the dispute.
Reprinted courtesy of
Brian Glicos, Peckar & Abramson, P.C. and
Nicholas J. Zaita, Peckar & Abramson, P.C.
Mr. Glicos may be contacted at bglicos@pecklaw.com
Mr. Zaita may be contacted at nzaita@pecklaw.com
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Massachusetts Lawyers Weekly Honors Construction Attorney
November 20, 2013 —
CDJ STAFFMassachusetts Lawyers Weekly has named Grace V. B. Garcia one of its 2013 Top Women of the Law. She is an attorney at Morrison Mahoney LLP in Boston, and her practice focuses on construction law, product liability, premises liability, commercial litigation, and American with Disability Act cases.
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Wait! Don’t Sign Yet: Reviewing Contract Protections During the COVID Pandemic
April 13, 2020 —
Danielle S. Ward - Balestreri Potocki & HolmesAs the circumstances of the COVID pandemic change day by day, and we all rush to keep business moving where and when we can, companies should consider hitting the “pause button” before renewing or executing any new contracts. Developing contracts often takes considerable time and expense, and companies are not in the habit of reworking them often. A change in law may prompt a company to revisit their contract terms, but otherwise business is often carried out with a standard form contract for a period of years. With the COVID pandemic affecting nearly every business and industry, life is not business as usual, and companies should make sure their contracts consider what previously seemed like an unforeseeable event.
Force Majeure clauses are included in many contracts to excuse contract performance when made impossible by some unforeseen circumstance. These clauses typically fall under two categories: general and specific. General force majeure clauses excuse performance if performance is prevented by circumstances outside the parties’ control. By contrast, specific force majeure clauses detail the exhaustive list of circumstances (acts of god, extreme weather, war, riot, terrorism, embargoes) which would excuse contract performance. Force majeure clauses are typically interpreted narrowly. If your contract has a specific clause and pandemic or virus is not one of the listed circumstances it may not apply. Whether a particular existing contract covers the ongoing COVID pandemic will vary depending on the language of the contract.
Force majeure clauses previously made headlines when the great economic recession hit in 2008. A number of courts held that simple economic hardship was not enough to invoke force majeure. The inability to pay or lack of desire to pay for the contracted goods or services did not qualify as force majeure. In California, impossibility turns on the nature of the contractual performance, and not in the inability of the obligor to do it. (Kennedy v. Reece (1964) 225 Cal. App. 2d 717, 725.) In other words, the task is objectively impossible not merely impossible or more burdensome to the specific contracting party.
California has codified “force majeure” protection where the parties haven’t included any language or the circumstances in the clause don’t apply to the situation at hand. Civil Code section 1511 excuses performance when “prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.” (Civ. Code § 1511.) What qualifies as a “superhuman cause”? In California, the test is whether under the particular circumstances there was such an insuperable interference occurring without the party's intervention as could not have been prevented by the exercise of prudence, diligence and care. (Pacific Vegetable Oil Corp. v. C. S. T., Ltd. (1946) 29 Cal.2d 228, 238.)
If you find yourself in an existing contract without a force majeure clause, or the statute does not apply, you may consider the doctrine of frustration of purpose. This doctrine is applied narrowly where performance remains possible, but the fundamental reason the parties entered into the contract has been severely or substantially frustrated by an unanticipated supervening circumstance, thus destroying substantially the value of the contract. (Cutter Laboratories, Inc. v. Twining (1963) 221 Cal. App. 2d 302, 314-15.) In other words, performance is still possible but valueless. Note this defense is not likely to apply where the contract has simply become less profitable for one party.
Now that COVID is no longer an unforeseeable event, but rather a current and grave reality, a party executing a contract today without adequate protections may have a difficult time proving unforeseeability. Scientists are not sure whether warm weather will suppress the spread of the virus, as it does with the seasonal flu, but to the extent we get a reprieve during the summer we may see a resurgence of cases this Fall or Winter. Companies should take care in reviewing force majeure clauses, and other clauses tied to timely performance such as delay and liquidated damages before renewing or executing new contracts.
Your contract scenario may vary from the summary provided above. Please contact legal counsel before making any decisions. During this critical time, BPH’s attorneys can be reached via email to answer your questions.
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Danielle S. Ward, Balestreri Potocki & HolmesMs. Ward may be contacted at
dward@bph-law.com
Congratulations to Nicholas Rodriguez on His Promotion to Partner
November 25, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is very proud to announce that Nick Rodriguez has been promoted to the position of partner with the firm!
Nick has been with BWB&O since 2019 and is licensed to practice law in California and the U.S. District Courts. Nick’s practice focuses on complex construction defect matters, as well as personal injury and wrongful death claims. During his time with the firm, Nick has successfully represented numerous clients through alternative dispute resolution and has taken matters to trial where he has received favorable jury verdicts. He also supervises and manages a team of associates in the Newport Beach office.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Haight’s 2020 San Diego Super Lawyers and Rising Stars
July 06, 2020 —
Haight Brown & Bonesteel LLPHaight congratulates partners
Michael Parme and
Arezoo Jamshidi who were selected to the 2020 San Diego Super Lawyers Rising Stars list.
Each year no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Haight Brown & Bonesteel LLP
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Because I Haven’t Mentioned Mediation Lately. . .
November 23, 2020 —
Christopher G. Hill - Construction Law MusingsAny regular reader of Construction Law Musings knows that I am both a great believer in mediation and a certified Virginia mediator. After the last few weeks in which I participated in mediation by Zoom, a Judicial Settlement Conference (read, court-ordered mediation with a retired judge), and will be participating in another mediation in person next week, it seems as if others believe in the process as well.
After all of this mediation activity, all of which related to construction project-related disputes, I am more convinced than ever that almost every construction case should at least be submitted for mediation. The list below gives my reasons for saying this:
- The parties are in control. In litigation or arbitration, the parties present their evidence to a third party or parties with no familiarity with the “boots on the ground” reality of the construction project at issue. This third party gives a cold review of what evidence court rules allow them to consider and gives a final ruling that one side “wins” and the other side “loses.” This decision has monetary consequences for the losing party, not the least of which is a large attorney fee bill after potentially several years of legal wrangling. With mediation, those closest to the project, the parties, can say what they want, present what they feel to be the best case, and work for a solution. The solution can be flexible and allow the two sides to reach a business decision that is at least better than a large monetary judgment against one of the parties that is only further enforceable in court.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Court of Appeal Shines Light on Collusive Settlement Agreements
October 21, 2015 —
Kristian B. Moriarty & R. Bryan Martin – Haight Brown & Bonesteel LLPIn Diamond v. Reshko, (filed 8/20/2015, No. A139251) the California Court of Appeal, First District, held that a defendant was entitled to introduce evidence at trial reflecting amounts paid by co-defendants in settlement of a plaintiff’s claim.
Plaintiff, Christine Diamond, was injured during an automobile accident that occurred while she was a passenger in a taxi driven by Amir Mansouri. Christine, and her husband Andrew, filed suit against Mr. Mansouri, the Yellow Cab Collective (“Yellow Cab”), and the driver of the vehicle that collided with the taxi, Serge Reshko. Before trial, Mansouri and the Yellow Cab Collective settled with Plaintiffs, but agreed to appear and participate as defendants at the jury trial of the action. Mansouri and Yellow Cab paid a total of $400,000 to Plaintiffs in settlement.
Reshko filed a pre-trial motion seeking an order permitting Reshko to admit evidence of the settlement between Plaintiffs and the other defendants. The trial court refused to rule on the motion before trial. Ultimately, evidence of the settlement between Plaintiffs, Mansouri and Yellow Cab was excluded during trial. The jury returned a verdict in favor of Plaintiffs in the total amount of $745,778, finding Mansouri 40 percent at fault, and Reshko 60 percent at fault. The Trial Court entered judgment against Reshko in the sum of $406,698.
Reshko appealed the judgment. The First District Court of Appeal reversed, holding that evidence of the settlement should have been admitted at trial because the settling defendant’s position should be revealed to the court and jury to avoid committing a fraud on the court, and in order to permit the trier of fact to properly weigh the settling defendant’s testimony.
Reprinted courtesy of
Kristian B. Moriarty, Haight Brown & Bonesteel LLP and
R. Bryan Martin, Haight Brown & Bonesteel LLP
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
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Colorado House Bill 19-1170: Undefined Levels of Mold or Dampness Can Make a Leased Residential Premises Uninhabitable
April 03, 2019 —
Steve Heisdorffer - Colorado Construction LitigationOne of the 407 bills the Colorado legislature is considering as of the date of this blog post is House Bill 19-1170, the Residential Tenants Health and Safety Act, which can be found at https://leg.colorado.gov/bills/hb19-1170 and clicking on the link for the recent bill text. The bill passed the House on February 26 and is in the Senate for consideration. The bill currently adds two substantive conditions to those conditions that make a residential premises uninhabitable. One is the lack of functioning appliances that conformed to applicable law when installed and that are maintained in good working order. The second is “mold that is associated with dampness, or there is any other condition causing the premises to be damp, which condition, if not remedied, would materially interfere with the health or safety of the tenant…,” referred to here as “the mold or dampness provision.” The bill also amends various procedural provisions of Colorado law to make enforcement by a tenant easier and broadens tenant remedies. The bill grants jurisdiction to county and small claims courts to grant injunctions for breach. This article focuses on the mold or dampness provision.
The mold or dampness provision is vague and will likely lead to abuse. First, there is mold everywhere. While expert witnesses routinely testify about the level of exposure that is unacceptable, no generally accepted medical standards for an unacceptable level of mold exposure currently exist, and each person reacts to mold differently. There is no requirement in the bill that mold exposure exceed levels that are generally considered harmful by experts in the field, or even in excess of naturally occurring background levels. Second, some sources estimate that there are over 100,000 different species of mold. No harmful effects have been shown for many species of mold, while other species of mold are considered harmful.
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Steve Heisdorffer, Higgins, Hopkins, McLain & RoswellMr. Heisdorffer may be contacted at
heisdorffer@hhmrlaw.com
