Traub Lieberman Partners Lenhardt and Smith Obtain Directed Verdict in Broward County Failed Repair Sinkhole Trial
September 03, 2019 —
Michael Francis Lenhardt & Burks A. Smith, III - Traub LiebermanOn Tuesday, July 16, 2019, Traub Lieberman Partners Michael Lenhardt and Burks Smith won a Directed Verdict at trial in a dispute over Sinkhole Loss coverage in Broward County Circuit Court. The lawsuit arose out of a claim for Breach of Contract involving an alleged “failed repair” of a 2005 sinkhole at the insureds’ property. The Plaintiffs argued that their Policy Limits did not apply because the carrier allegedly undertook the subsurface repairs, relying on Drew v. Mobile USA Ins. Co., 920 So.2d 832 (Fla. 4thDCA 2006). The Plaintiffs asserted that because the insurance company allegedly hired the below ground repair company, a “new contract” was formed, and the Plaintiffs should be entitled to limitless repairs to their home, notwithstanding the Policy Limits. This argument obviously presented the carrier with very significant exposure.
Attorneys Lenhardt and Smith provided a vigorous defense for the insurance company at trial, during which they presented the jury with evidence that the carrier did not, in fact, hire the subsurface repair company. They further established to the jury that the insureds actually signed a contract with the repair company directly, and that the defendant did not invoke the Our Option repair clause of the Policy. After the Plaintiffs rested their case, Mr. Lenhardt and Mr. Smith moved the Court for entry of a directed verdict. The defense argued to the Court that the Plaintiffs could not prove their case to the jury based upon the facts presented as a matter of law, thus entitling the insurance company to a defense verdict.
Reprinted courtesy of
Michael Francis Lenhardt, Traub Lieberman and
Burks A. Smith, III, Traub Lieberman
Mr. Lenhardt may be contacted at mlenhardt@tlsslaw.com
Mr. Smith may be contacted at bsmith@tlsslaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Challenging and Defending a California Public Works Stop Payment Notice: Affidavit vs. Counter-Affidavit Process
October 21, 2019 —
William L. Porter - Porter Law GroupOne of the most effective collection procedures available to subcontractors and suppliers to California Construction projects is the “stop payment notice” procedure found under California Civil Code sections 9350 – 9364. Under this procedure, the unpaid subcontractor or supplier may serve the stop payment notice on the public entity and the direct or “prime” contractor and cause the public entity to withhold from the direct contractor 125% of the funds identified in the stop payment notice. Thereafter, funds will not generally be released unless the parties reach a settlement agreement or the issue is decided through litigation, arbitration or mediation. There is however an alternative procedure available to direct contractors to expedite the determination of whether a stop payment notice is valid and to possibly obtain an early release of the funds withheld by the public entity. This “summary proceeding” process could result in release of funds to the direct contractor in less than 30 days. The summary proceeding can also be challenged by the unpaid subcontractor or supplier. All public works contractors, subcontractors and suppliers should be aware of the process. The process for direct contractors to release a stop payment notice and for subcontractors and suppliers to challenge the process works as follows:
After a California stop payment notice has been served and the public entity has withheld funds accordingly, the direct contractor may challenge the stop payment notice by serving an “affidavit” (basically a sworn statement showing why the stop notice is not valid) on the public entity, demanding that the public entity release all funds withheld. Upon receipt of such an affidavit, the public entity will serve the subcontractor or supplier who served the stop payment notice with a copy of the affidavit, along with a “demand for release of funds”. If the stop payment notice claimant does not respond with a “counter-affidavit” by the date stated on the notice sent by the public entity (“not less than 10 days nor more than 20 days after service on the claimant of a copy of the affidavit”), then the public entity will be within its rights to release the withheld funds to the direct contractor, and the stop payment notice claimant will relinquish its stop payment notice rights.
Read the court decisionRead the full story...Reprinted courtesy of
William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
The Fourth Circuit Applies a Consequential Damages Exclusionary Clause and the Economic Loss Doctrine to Bar Claims by a Subrogating Insurer Seeking to Recover Over $19 Million in Damages
February 23, 2016 —
William L. Doerler – White and Williams LLPIn Severn Peanut Company, Inc. v. Industrial Fumigant Company, 807 F.3d 88 (4th Cir. (N.C.) 2015), the United States Court of Appeals for the Fourth Circuit (Fourth Circuit), applying North Carolina law, considered whether a consequential damages clause in a contract between the Severn Peanut Company, Inc. (Severn) and Industrial Fumigant Company (IFC) barred Severn and its subrogating insurer, Travelers Property Casualty Company of America (Travelers), from recovering over $19 million in damages that Severn suffered as the result of a fire and explosion at its Severn, North Carolina plant. The Fourth Circuit, rejecting Severn’s unconscionability and public policy arguments related to the consequential damages clause and finding that the economic loss doctrine barred Severn from pursuing negligence claims, affirmed the trial court’s judgment granting summary judgment in IFC’s favor.
As noted in the Severn decision, the facts showed that Severn and IFC signed a Pesticide Application Agreement (PAA) requiring IFC to use phosphine, a pesticide, to fumigate Severn’s peanut storage dome and to apply the pesticide “in a manner consistent with instructions . . . and precautions set forth in [its] labeling.” With respect to damages, the PAA specified that IFC’s charge for its services, $8,604 plus applicable sales tax, was “based solely upon the value of the services provided” and was not “related to the value of [Severn’s] premises or the contents therein.” In addition, the PAA specified that the $8,604 sum to which the parties agreed was not “sufficient to warrant IFC assuming any risk of incidental or consequential damages” to Severn’s “property, product, equipment, downtime, or loss of business.”
Read the court decisionRead the full story...Reprinted courtesy of
William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Scarce Cemetery Space Creates Prices to Die For: Cities
August 06, 2014 —
Flavia Krause-Jackson – BloombergEven in death, you can’t escape the property bubble.
From New York to London, growing populations are competing with the deceased for land, driving up real-estate costs well into the afterlife. In Asian megacities, where cremation is the norm, even space for urns is in short supply.
“At the end of the day, it’s like any other piece of real estate,” says Amy Cunningham, a New York state licensed funeral director. “Prices have conspired to put burials out of the range of most people’s budgets.”
Read the court decisionRead the full story...Reprinted courtesy of
Flavia Krause-Jackson, BloombergMs. Krause-Jackson may be contacted at
fjackson@bloomberg.net
Lease-Leaseback Fight Continues
June 01, 2020 —
Garret Murai - California Construction Law BlogIt’s like the rematch between Rocky Balboa and Apollo Creed.
In the right corner we have the California Taxpayers Action Network. In the left corner, Taber Construction, Inc. The title in contention: Construction of California’s Lease-Leaseback Program and, specifically, whether a construction firm can provide both pre-construction services as well as perform construction or, whether doing so, would be an impermissible conflict of interest under the Lease-Leaseback Law.
In their first appellate court match, California Taxpayers Action Network argued that a lease-leaseback arrangement between Taber Construction and the Mount Diablo Unified School District, whereby the District agreed to lease the site to Taber Construction one dollar (which is permissible) and to pay Taber a “guaranteed project cost” of $14,743,395 comprised of “tenant improvement payments” totaling $13,269,057 prior to the District taking delivery of the project (which was the issue in dispute) and six “lease payment amount[s]” of $345,723 plus interest paid in 30-day intervals, violated the Lease-Leaseback Law because the bulk of the payments by the District to Taber Construction occurred during construction rather than during the lease-term which could only “truly” occur after the District took delivery of the project. The 1st District Court of Appeal sided with Taber Construction, and in doing so created an appellate court split with the 5th District Court of Appeal’s decision in Davis v. Fresno Unified School District, 237 Cal.App.4th 261 (2015), which held that contractor who received all payments prior to turnover of the project to the district violated the Lease-Leaseback Law.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Tech Focus: Water Tech Getting Smarter
June 05, 2023 —
Pam McFarland - Engineering News-RecordIn early December 2021, the Denver International Airport made headlines across the U.S. after a hot water pipe broke a month before a major terminal expansion project was expected to complete. The scalding water spilled on floors and across the airport concourse, causing $50 million in damage and a nine-month delay to the project.
Reprinted courtesy of
Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Maritime Law: An Albatross for Contractors Navigating Marine Construction
January 03, 2022 —
Cindy Matherne Muller - ConsensusDocs“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1
Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions.
What is admiralty jurisdiction?
The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus.
Read the court decisionRead the full story...Reprinted courtesy of
Cindy Matherne Muller, Jones Walker LLPMs. Muller may be contacted at
cmuller@joneswalker.com
Engineer TRC Fends Off Lawsuits After Merger
August 17, 2017 —
Scott Van Voorhis - Engineering News-RecordIn the wake of its merger with an investment fund, TRC Cos. has been busy swatting away pesky shareholder lawsuits driven by law firms who specialize in such litigation.
Read the court decisionRead the full story...Reprinted courtesy of
Scott Van Voorhis, ENRENR may be contacted at
ENR.com@bnpmedia.com