Summary Judgment in Favor of General Contractor Under Privette Doctrine Overturned: Lessons Learned
March 27, 2023 —
Garret Murai - California Construction Law BlogIt seems like we’ve been seeing a lot of Privette doctrine cases recently. Here’s another,
Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2002), which provides a cautionary tale for general contractors to watch what they include in their scope of work and how they manage projects.
The Beach House Case
Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project. A&D Plastering Co., another subcontractor on the project, had erected scaffolding on the project.
On June 16, 2017, while using A&D’s scaffolding, Brown fell onto a concrete walkway where he suffered severe injuries. Following the accident, Beach House and A&D inspected the scaffolding and found that some of the scaffolding was not properly secured to the building and that planks, crossbars, ties and guardrails had been cut or were missing.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Alexander Moore Promoted to Managing Partner of Kahana Feld’s Oakland Office
May 08, 2023 —
Alexander R. Moore - Kahana FeldKahana Feld is pleased to announce that Alexander R. Moore, Esq., has been promoted to Managing Partner of our Oakland office. Mr. Moore has been at Kahana Feld since 2021 and is a member of the construction defect and general liability practice groups.
Mr. Moore has over 23 years of experience representing individual and commercial clients in complex disputes arising out of construction contracts, construction defect allegations, premises liability matters, landlord-tenant disputes, and contractual disputes arising out of various business relationships involving financial services companies, technology companies, telecommunications companies, real estate brokerages, non-profits, and a range of small businesses. When not focused on litigation, Mr. Moore enjoys consulting on transactional matters including the development of construction and business contracts. He has extensive experience evaluating rights and obligations under construction contracts and related insurance programs. He also assists clients in the implementation of pre-litigation risk management strategies.
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Alexander R. Moore, Kahana FeldMr. Moore may be contacted at
amoore@kahanafeld.com
Colorado Court of Appeals Defines “Substantial Completion” for Subcontractors’ Work so as to Shorten the Period of Time in Which They Can Be Sued
October 20, 2016 —
David M. McLain – Colorado Construction Litigation BlogOver the past few years, there has been a battle raging on in district courts and arbitration hearing rooms throughout Colorado regarding when a subcontractor’s work is to be deemed “substantially complete,” for purposes of triggering Colorado’s six-year statute of repose. C.R.S. § 13-80-104 states, in pertinent part:
Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
* * *
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
C.R.S. § 13-80-104 (emphasis added).
As the battle raged on at the trial court level, subcontractors and design professionals argued that their work should be deemed “substantially complete” when they finished their discrete scope of work within a project. Developers and general contractors, seeking to maintain third-party claims against the subcontractors and design professionals, typically argued either that the subcontractors’ and design professionals’ work should be deemed “substantially complete” upon the issuance of the final certificate of occupancy on the project, or upon the issuance of the final certificate of occupancy for the last building within a project on which the subcontractor or design professional worked. Trial court judges and arbitrators have been split on this issue, with perhaps a slight majority favoring one or the other approaches advocated by developers and general contractors, that the subcontractors’ and design professionals’ work is “substantially complete” upon the issuance of the last certificate of occupancy in a project (the minority view) or upon the issuance of the last certificate of occupancy for the last building within a project on which the subcontractor of design professional worked (the majority view).
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Insurer Rejecting Construction Defect Claim Must Share in Defense Costs
March 02, 2020 —
Tred R. Eyerly - Insurance Law HawaiiOne insurer, who accepted the tender of defense in a construction defect case, successfully moved for summary judgment against the second insurer, who denied the insured's tender. Interstate Fire & Cas. v. Aspen Ins. UK Ltd., 2019 N.Y. Misc. LEXIS 5800 (N.Y. Sup. Ct. Oct. 25,2019).
Standard Waterproofing Corporation was hired by the construction manager, G Builders, to perform waterproofing work as part of condominium conversion project. After the project was completed,the condominium occupants experienced water damage in their units. The Condominium Board retained an engineer who reported numerous issues of water infiltration relating to Standard's work.
The Condominium Board filed suit against the construction manager, who filed a third party complaint against Standard. Standard tendered to four different insurers, including plaintiff Interstate and defendant Aspen. Interstate agreed to defend, while Aspen and the other two insurers declined. Aspen argued there were no allegations of an occurrence resulting in property damage during its policy periods. Interstate filed for declaratory relief against Aspen and Standard.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Potential Extension of the Statutes of Limitation and Repose for Colorado Construction Defect Claims
April 27, 2020 —
David M. McLain – Colorado Construction LitigationOn January 27th, Senator Robert Rodriguez introduced SB 20-138 into the Colorado Legislature. The bill has been assigned to the Senate Judiciary Committee and has not yet been scheduled for its first hearing in that committee. In short, Senate Bill 20-138, if enacted, would:
- Extend Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
- Require tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
- Permit statutory and equitable tolling of the statute of repose.
Colorado’s statute of repose for construction defect claims are codified at C.R.S. § 13-80-104. In 1986, the Colorado Legislature set the statute of repose period at 6+2 years. For the last 34 years, Colorado’s statute of repose for owners’ claims against construction professionals has been substantially the same, to wit:
(1) (a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Court Says KBR Construction Costs in Iraq were Unreasonable
August 27, 2014 —
Beverley BevenFlorez-CDJ STAFFMike Bosse of Bernstein Shur, analyzed a case involving Kellogg Brown and Root Services Inc. (KBR) and the U.S. Army for services that KBR provided during Operation Iraqi Freedom, according to JDSupra Business Advisor: “The court case involved KBR’s construction of dining facility services near Mosul, Iraq under a cost-plus fee arrangement. Under this contractual arrangement, all allowable costs were reimbursed by the government plus the contractor was paid an additional fee.”
KBR first started on a prefabricated metal dining hall that would serve 2,500 people, but part way into building they were told to stop construction and to instead start on a new reinforced concrete building that would serve almost three times as many people.
“After construction was finished, a defense contract auditing agency suspended some of the payments to KBR and instead of the $12.5 million it expected to receive, KBR was paid only $6.7 million,” reported JDSupra Business Advisor. “After trial, the court concluded KBR did not meet its burden to show the costs it incurred were reasonable under the circumstances.”
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Contract Should Have Clear and Definite Terms to Avoid a Patent Ambiguity
December 11, 2023 —
David Adelstein - Florida Construction Legal UpdatesIf you need more of a reason to have contracts with clear and definite terms, this case is it. This case exemplifies what can happen if the contract, not only does not have clear and definite terms, but contains a patent ambiguity. The contract will be deemed unenforceable which will make one of the contracting parties very unhappy!
In Bowein v. Sherman, 48 Fla.L.Weekly D2208a (Fla. 6th DCA 2023), the buyer and seller entered into a real estate transaction. The transaction was for $2 Million. The purchase-and-sale agreement included the address and legal description of a parcel to be sold. However, there was a section in the agreement called “Other Terms and Conditions” which identified that the offer was actually for four properties that were being sold by the seller. When it came to closing time, the seller refused to close because the seller disputed that the $2 Million purchase price was for all four of his properties. The buyer sued the seller for specific performance to force the sale which the trial court agreed in favor of the buyer. However, the appellate court did not.
First, the appellate court held that “[t]he equitable remedy of specific performance may be granted only where the parties have actually entered into a definite and certain agreement.” Bowein, supra (quotation and citation omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Unlocking the Hidden Power of Zoning, for Good or Bad
October 21, 2024 —
David Zipper - BloombergNo longer dismissed as an insomnia-curing corner of local governance, zoning is having a moment. It’s at the heart of the pro-housing Yes In My Backyard — or YIMBY — movement, which seeks to reform the rules that mandate the construction of single-family homes across much of the US, and the arcane details of land use policy are being debated in national outlets and city councils across the US. In much of this discourse, zoning is the clear villain, blamed for feeding societal ills ranging from housing costs to racial discrimination to greenhouse gas emissions.
In her new book Key to the City, Sara Bronin examines zoning with a critical but sympathetic eye. Bronin brings deep experience to the topic, having studied zoning as an architect and lawyer before overhauling the land use regulations of Hartford, Connecticut. A professor of architecture and planning at Cornell University (and an occasional Bloomberg CityLab contributor), she is currently on leave to chair the federal Advisory Council on Historic Preservation.
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David Zipper, Bloomberg
