Construction Firm Settles Suit Over 2012 Calif. Wildfire
January 15, 2019 —
Associated Press - Engineering News-RecordSACRAMENTO, Calif. (AP) — Officials say a construction company and a logging firm have collectively agreed to pay $9 million for damages resulting from a 2012 wildfire that burned more than 1,600 acres of national forest land in Northern California.
The U.S. Attorney's office in Sacramento says Monday that the agreement settles a lawsuit brought by the federal government against Kernen Construction and Bundy & Sons Logging.
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ENR.com@bnpmedia.com
Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 —
Beverley BevenFlorez CDJ STAFFThe Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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Hiring Subcontractors with Workers Compensation Insurance
January 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesYou want to hear more on the POWER of
statutory workers compensation immunity? Well, here it is, because as I have mentioned in the past,
workers compensation immunity is powerful reinforcing the importance for contractors to ensure the subcontractors they hire absolutely have workers compensation insurance. Likewise, subcontractors want to ensure the subcontractors they hire also have workers compensation insurance.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Coyness is Nice. Just Not When Seeking a Default Judgment
March 04, 2019 —
Garret Murai - California Construction Law BlogAs Morrissey of the Smith’s sang: Coyness is nice, but Coyness can stop you, from saying all the things in life you’d like to.
It’s not uncommon in litigation to see a complaint asking for “damages according to proof.” Call it laziness. Call it hiding the ball. Call it coy, even. I call it risky.
And here’s why: If a defendant doesn’t appear and you need to seek a default judgment against him, her, or it, you are barred from doing so, since you are limited to recovering the amount you sought. And last I checked, something of nothing is nothing.
In Yu v. Liberty Surplus Insurance Corporation, California Court of Appeals for the Fourth District, Case No. G054522 (December 11, 2018), one plaintiff found this out the hard way, although perhaps not quite in the way they expected it.
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Garret Murai, Wendel RosenMr. Murai may be contacted at
gmurai@wendel.com
Balfour Taps Qinetiq’s Quinn as new CEO to Revamp Builder
October 15, 2014 —
Benjamin Katz and Simon Thiel – BloombergBalfour Beatty Plc (BBY) named Leo Quinn as new chief executive officer to revamp Britain’s biggest builder which has suffered from mismanaged projects and a lack of demand.
Quinn will start on Jan. 1 after five years as CEO of defense specialist Qinetiq Group Plc, Balfour Beatty said today. The executive began his career at Balfour Beatty in 1979 as a civil engineer and later worked as president of Honeywell Building Controls and CEO of banknote printer De La Rue Plc. The stock gained 5.3 percent in London trading today.
Balfour Beatty, which rejected a merger proposal from British rival Carillion Plc in August, has struggled since the global recession slashed orders and prices. Its stock had fallen 48 percent this year before today, reducing the company’s value to 1 billion pounds ($1.6 billion). In September, Balfour Beatty cut its U.K. construction-services unit’s profit forecast and said Chairman Steve Marshall plans to leave.
Mr. Thiel may be contacted at sthiel1@bloomberg.net; Mr. Katz may be contacted at bkatz38@bloomberg.net
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Benjamin Katz and Simon Thiel, Bloomberg
Indemnity: What You Don’t Know Can Hurt You!
September 19, 2022 —
Caitlin Kicklighter & Bill Shaughnessy - ConsensusDocsRisk allocation between the parties is a critical component of any construction contract. Indemnity obligations can be some of the important risk-shifting provisions of any design or construction contract. Indemnity provisions typically require one party, the Indemnitor, to agree to “hold harmless,” and/or reimburse another party, the indemnitee, from claims and liability arising out of the party’s work. Considering the financial consequences that an indemnity provision can have on a construction project, it is critical that all parties to a construction contract know the legal implications of the contract indemnity provisions and understand any limitations in enforcing the indemnity provisions depending on the controlling jurisdiction. While most indemnity clauses and obligations are enforceable, many states have enacted anti-indemnity statutes prohibiting or restricting specific indemnification provisions. These anti-indemnity statutes afford protection to contractors and subcontractors not generally in a position to protect themselves from overly extensive indemnity obligations.
This article highlights several examples of indemnity provisions typically seen in construction contracts, the measures are taken by a growing number of states to protect parties with less bargaining power in the form of anti-indemnity statutes, and offers practical considerations when negotiating or drafting indemnity provisions.
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Reprinted courtesy of
Caitlin Kicklighter, Emory Law Student (2024 Graduate), (ConsensusDocs) and
Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com
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America’s Infrastructure Gets a D+
March 16, 2017 —
Garret Murai – California Construction Law BlogThe American Society of Civil Engineers (ASCE) has issued their 2017 Infrastructure Report Card, which assigns a letter grade to the nation’s infrastructure.
Our country’s grade in 2017? A disappointing D+.
Although, if you’re a glass half full kind of person (bless your soul) at least our grade didn’t fall since the last report card was issued in 2013, when our grade was a D+ as well.
In short, we suck. Although, apparently, we don’t suck evenly across the board.
ASCE has divided its cumulative GPA into grades for specific courses, if you will. Our transit systems received a grade of D-; our airports, dams, drinking water and waste water plants, inland waterways, levees and roads received a grade of D; our power plants, hazardous waste plants, public parks and schools received a grade of D+; our bridges, ports and solid waste plants a grade of C+, and our rail systems received a grade of B.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
HUD Homeownership Push to Heed Lessons From Crisis, Castro Says
January 14, 2015 —
Clea Benson – BloombergNow that regulators have fixed the worst abuses of the 2008 credit crisis, it’s time to start promoting homeownership again, according to the top U.S. housing official.
The Department of Housing and Urban Development will do its part, spending this year focusing on ways to help more Americans buy homes, HUD Secretary Julian Castro said today in a Washington speech outlining the agency’s priorities.
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Clea Benson, BloombergMs. Benson may be contacted at
cbenson20@bloomberg.net
