Hybrid Contracts for The Sale of Goods and Services and the Predominant Factor Test
February 15, 2021 —
David Adelstein - Florida Construction Legal UpdatesFlorida’s Uniform Commercial Code (also known as the UCC) applies to transactions for goods. “Goods” is defined by Article II of the UCC as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (chapter 678) and things in action.” Fla. Stat. s. 672.105(1).
The UCC does NOT apply to transactions for services. Transactions for services are governed by common law.
Oftentimes, transactions or contracts include BOTH goods and services. In this scenario, referred to as a hybrid contract, does the UCC or common law apply? In this scenario, courts apply the predominant factor test to determine whether the UCC or common law governs the transaction:
Whether the UCC or the common law applies to a particular hybrid contract depends on “whether the[ ] predominant factor, the [ ] thrust, the[ ] purpose [of the contract], reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).” In such instances, the determination whether the “predominant factor” in the contract is for goods or for services is a factual inquiry unless the court can determine that the contract is exclusively for goods or services as a matter of law.
Allied Shelving & Equipment, Inc. v. National Deli, LLC, 154 So.3d 482, 484 (Fla. 3d DCA 2015) (citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Tiny Houses Big With U.S. Owners Seeking Economic Freedom
July 16, 2014 —
Nina Glinski – BloombergDoug Immel recently completed his custom-built dream home, sparing no expense on details like cherry-wood floors, cathedral ceilings and stained-glass windows -- in just 164 square feet of living space including a loft.
The 57-year-old schoolteacher’s tiny house near Providence, Rhode Island, cost $28,000 -- a seventh of the median price of single-family residences in his state.
“I wanted to have an edge against career vagaries,” said Immel, a former real estate appraiser. A dwelling with minimal financial burden “gives you a little attitude.” He invests the money he would have spent on a mortgage and related costs in a mutual fund, halving his retirement horizon to 10 years and maybe even as soon as three. “I am infinitely happier.”
Dramatic downsizing is gaining interest among Americans, gauging by increased sales of plans and ready-made homes and growing audiences for websites related to the niche. A+E Networks Corp. will air, beginning today, “Tiny House Nation” a series on FYI that “celebrates the exploding movement.”
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Nina Glinski, BloombergMs. Glinski may be contacted at
nglinski@bloomberg.net
New York Appellate Team Obtains Affirmance of Dismissal of Would-Be Labor Law Action Against Municipal Entities
August 12, 2024 —
Lewis Brisbois NewsroomNew York, N.Y. (July 11, 2024) - In Charlot v. City of New York, ___ A.D.3d ___, 2024 NY Slip Op 03161 (2d Dep’t 2024), New York Associate Dean Pillarella, a member of the Appellate Practice, recently obtained an affirmance of the lower court’s dismissal of the plaintiff’s action against the City of New York (“the City”) for failure to timely serve a notice of claim. New York Partner Meghan Cavalieri, a member of the Construction Practice, and her team authored and argued the initial motion to dismiss.
The plaintiff alleged to have sustained injuries as a result of a construction-site accident on December 8, 2020, on City-owned property in the course of the construction of a school by the New York City School Construction Authority. N.Y. General Municipal Law (“GML”) § 50-e(1)(a), requires service of a notice of claim within 90 days after the claim arises as a condition precedent to the commencement of a tort action. The plaintiff served no notice of claim until June 2021 and commenced an action in January 2022, alleging violations of N.Y. Labor Law §§ 240(1), 241(6), and 200. Given the plaintiff’s failure to comply with GML § 50-e(1)(a), Meghan and her team rejected the notices of claim as untimely. The plaintiff then moved for leave to deem the notices of claim timely served nunc pro tunc. In response, Meghan and her team opposed the motion and cross-moved to dismiss the action.
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Lewis Brisbois
White and Williams Lawyers Recognized by Best Lawyers
August 26, 2015 —
White and Williams LLPTwelve White and Williams lawyers have been listed in The Best Lawyers in America 2016. Inclusion in Best Lawyers is based entirely on peer-review. The methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.
2016 Best Lawyers
Attorney / Practice Area
Frank Bruno / Patent Law
James Coffey / Mergers and Acquisitions Law
Timothy Davis / Real Estate Law
Joseph Foster / Personal Injury Litigation - Defendants
William Hussey / Tax Law; Trusts and Estates
Michael Kraemer / Employment Law - Management; Labor Law; Management; Litigation - Labor and Employment
Randy Maniloff / Insurance Law
John Orlando / Personal Injury Litigation - Defendants
Thomas Rogers / Real Estate Law
Joan Rosoff / Real Estate Law
Craig Stewart / Insurance Law; Product Liability - Defendants
William Taylor / Construction Law
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You may contact White and Williams LLP attorneys at www.whiteandwilliams.com
California Case Is a Reminder That Not All Insurance Policies Are Alike Regarding COVID-19 Losses
April 05, 2021 —
Neal I. Sklar & Joshua A. Morehouse - Peckar & Abramson, P.C.A recent case from the Central District of California reminds us that not all insurance policies are alike. Depending on the particular policy, losses from the COVID-19 outbreak could qualify as property damage and therefore could be recoverable under an all-risk insurance policy.
COVID-19 has in many cases imposed significant costs on contractors, and in a host of ways. Contractors’ attempts to recover these costs from owners or insurers have at times been frustrated by contractual or policy language written after a lengthy time, during which the risk of a pandemic on the scale of COVID-19 was not as much of a concern as it is now. This has led contractors to explore new, often creative legal theories in their attempts to recover costs flowing from COVID-19.
A recent Complaint filed in the Central District of California focuses on all-risk property insurance policies and the potential for contractors who have purchased such policies to classify contamination from COVID-19 as an insurable property loss.
In AECOM v. Zurich Insurance Company, Case No. 2:21-cv-00237-JAK-MRW (C.D. Cal), a contractor purchased “all-risk” property insurance from Zurich. This policy covered “economic losses from all risks not expressly excluded.” According to the Complaint, the presence of COVID-19 on its properties “physically alter[ed] air, airspace, and surfaces preventing… (the contractor) from using its properties for their intended purpose and function.”
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Neal I. Sklar, Peckar & Abramson, P.C. and
Joshua A. Morehouse, Peckar & Abramson, P.C.
Mr. Sklar may be contacted at nsklar@pecklaw.com
Mr. Morehouse may be contacted at jmorehouse@pecklaw.com
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Courthouse Reporter Series: The Bizarre Case That Required a 117-Year-Old Expert
December 04, 2023 —
Todd Heffner & Di'Vennci Lucas - The Dispute ResolverA recent decision by the Georgia Court of Appeals, Munro v. Georgia Department of Transportation, highlights how overly specific and inflexible rules of evidence can create peculiar results.
Munro involved a dispute over the design of a Georgia intersection. No. A23A0404, 2023 WL 4194716 (Ga. Ct. App. June 27, 2023). The plaintiff alleged that the defendant improperly designed the intersection, never corrected that improper design, and failed to properly maintain the intersection. These claims were dismissed for a very odd reason: the plaintiff’s expert witness wasn’t old enough.
The case arose from a car accident. A vehicle in which the plaintiff Munro was a passenger collided with a tractor trailer crossing an intersection. Munro sued the Georgia Department of Transportation (DOT) for negligently designing, maintaining, and inspecting the intersection. The DOT filed a motion to dismiss for lack of subject matter jurisdiction on the ground of sovereign immunity and a motion to exclude the testimony of the Munros’ expert witness, among other motions. The trial court dismissed the case in full on the sovereign immunity ground and denied the other motions as moot. The Munros appealed.
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Todd Heffner, Troutman Pepper and
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todd.heffner@troutman.com
Just When You Thought General Contractors Were Necessary Parties. . .
November 30, 2020 —
Christopher G. Hill - Construction Law MusingsDid you think that a subcontractor had to name a general contractor in a mechanic’s lien suit? I did. Did you think that nothing about this changed in the case where a Virginia mechanic’s lien was “bonded off” pursuant to Va. Code Section 43-71? I did.
Well, a recent Virginia Supreme Court case, Synchronized Construction Services Inc. v. Prav Lodging LLC, seems to at least create some doubt as to whether the a general contractor is a “necessary” party to a lawsuit by a subcontractor in the case where a bond is posted for release of a mechanic’s lien.
In Prav Lodging, the facts were a bit unusual. The day after the mechanic’s lien was recorded by Synchronized Construction Services, Inc. (“Synchronized”) the construction manager, Paris Development Group, the construction manager and de facto general contractor, went out of business. Despite this fact, and after the lien was bonded off, Synchronized sued to enforce the lien and for breach of contract against Paris. The wrinkle here is that Synchronized was unable to serve several defendants, among them Paris, within one year of filing suit as required by Virginia statute. In the Circuit Court, the financing bank moved to dismiss the suit for failure to serve necessary parties. The Circuit Court dismissed the breach of contract count but refused to dismiss the mechanic’s lien count on this basis.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Newmeyer & Dillion’s Alan Packer Selected to 2018 Northern California Super Lawyers List
July 18, 2018 —
Newmeyer & DillionWALNUT CREEK, Calif. – JULY 10, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that litigation attorney Alan Packer has been selected to the 2018 Northern California Super Lawyers list. No more than five percent of the lawyers in the state are selected by Super Lawyers each year.
Packer is a partner in the firm's expanding Walnut Creek office. He has practiced law in California for over 30 years, mostly representing parties involved in real estate, home building, commercial construction, and insurance matters. He represents business clients, homebuilders, property owners, and others in a broad range of legal matters.
Packer is a frequent speaker at seminars and in-house training sessions for clients on issues relating to risk management, construction litigation, and insurance.
Earlier this year, Newmeyer & Dillion attorneys in Newport Beach and Las Vegas were also selected to Super Lawyers lists. Packer brings its total to 19 Newmeyer & Dillion attorneys recognized.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations, resulting in a comprehensive and diverse listing of exceptional attorneys.
Alan Packer
Partner
Walnut Creek
Contact
925.988.3200
alan.packer@ndlf.com
Practices
Business Litigation
Construction Litigation
Insurance Law
Real Estate Litigation
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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