Persimmon Offers to Fix Risky Homes as Cladding Crisis Grows
February 22, 2021 —
Olivia Konotey-Ahulu - BloombergPersimmon Plc, the U.K.’s biggest homebuilder, has offered to pay for work on potentially unsafe buildings in the wake of the cladding scandal that arose from London’s Grenfell Tower fire.
The firm has made a provision of 75 million pounds ($104 million) in its 2020 results for any necessary repair work on 26 buildings it developed that may be affected by the issue, it said in a statement Wednesday. It no longer owns the properties and said it would provide support where owners failed to accept their legal responsibilities.
“The concern around now banned cladding is affecting many thousands of homeowners who live in high-rise buildings right across the country,” Chairman Roger Devlin said in the statement. “We believe we have a clear duty to act to address this issue.”
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Olivia Konotey-Ahulu, Bloomberg
Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law
May 10, 2021 —
Gus Sara - The Subrogation StrategistIn Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort.
In Earl, the plaintiff, Lisa Earl, entered into an agreement with defendant NVR, Inc. (NVR) for the construction and sale of a home in Allegheny County, Pennsylvania. Ms. Earl learned of the home through NVR’s marketing, which described the home as containing “quality architecture, timeless design, and beautiful finishes.” Ms. Earl alleged that during the construction of the home, she had further discussions with agents of NVR, who made representations that the home would be constructed in a good and workmanlike manner and that any deficiencies noted by Ms. Earl would be remedied. The defendant also assured Ms. Earl that the home would be constructed in accordance with relevant building codes and industry standards. After moving into the home, Ms. Earl discovered several material defects in the construction. She provided notice of these defects to NVR, but NVR’s attempts to repair some of the defects were inadequate.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Mediation Confidentiality Bars Malpractice Claim but for How Long?
April 01, 2015 —
Jennifer K. Saunders – Haight Brown & Bonesteel LLPThe California Court of Appeal yesterday upheld application of the mediation confidentiality statutes to bar a malpractice action which was based on the attorneys’ actions during mediation. John Amis vs. Greenberg Traurig LLP, et al. (3/18/15) Court of Appeal, Second Appellate District, No. B248447. Inferences about the attorneys’ conduct during mediation were also determined to be unusable in an attempt to circumvent the privilege.
Plaintiff, John Amis, filed an action against his former attorneys, Greenberg Traurig, alleging they were negligent by “causing” him to execute a settlement agreement during a two-day mediation which converted a corporate obligation into a personal obligation. The causes of action included breach of fiduciary duty, malpractice and breach of a conflict waiver, in support of which Amis alleged that the attorneys failed to advise him of the risk involved in entering into the settlement agreement, “drafted, structured and caused it to be executed” during mediation and breached a conflict waiver by failing to negotiate a settlement that provided him with financial security. During plaintiff’s deposition he admitted that all of the advice he had received in connection with the settlement agreement occurred during mediation and that all the damages incurred were from his execution of that agreement during mediation. Greenberg Traurig filed a motion for summary judgment based upon plaintiff’s deposition admissions and argued that since the mediation confidentiality statutes barred each side from presenting testimony as to what occurred during mediation, the plaintiff could not establish the elements of his claims and they could not defend against those allegations. The trial court agreed with the defense, granting summary judgment.
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Jennifer K. Saunders, Haight Brown & Bonesteel LLPMs. Saunders may be contacted at
jsaunders@hbblaw.com
Expert's Opinions On Causation Leads Way To Summary Judgment For Insurer
August 10, 2017 —
Tred R. Eyerly - Insurance Law HawaiiAlthough the insured claimed damages to her home was caused by vibrations from nearby construction, the court held she failed to overcome the insurer's expert's opinion that the damage resulted from excluded causes such as wear and tear, cracking and settling. King v. Am Family Ins., 2017 Ohio App. LEXIS 2565 (Ohio Ct. App. June 26, 2017).
The insured had a homeowners policy with American Family. The insured sued American Family, alleging that damage to her home was caused by vibrations caused by construction equipment at a nearby high school. The damage included cracks, leaks and mold.
American Family moved for summary judgment, attaching an affidavit from a structural engineering consulting firm. The report outlined alleged damages, including cracks throughout the house, and opined that the areas of concern had been present and progressing for years. Some damaged areas were discolored and patched. Accordingly, the report concluded that the damages were not caused by vibrations from construction.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Classic Blunder: Practical Advice for Avoiding Two-Front Wars
August 23, 2021 —
William Underwood - ConsensusDocs“Ha ha! You fool! You fell victim to one of the classic blunders – the most famous of which is ‘never get involved in a land war in Asia’ – but only slightly less well-known is this: ‘Never go in against a Sicilian when death is on the line.’”[1]
Vizzini forgot to include “never fight a two-front war with your owner and a subcontractor” on his list of classic blunders, but it certainly belongs there. This article examines practical tips and tricks for general contractors to avoid the classic blunder of a two-front war, including recommended contract provisions and sound project documentation practices.
Admittedly, general contractors face a wide array of obligations on a project. And perhaps one of the most delicate balancing acts is managing relationships with the owner and your subcontractors. But far too often general contractors find themselves in the difficult position of fighting a two-front war against one (or more) of their subcontractors and the project owner.
But this does not always have to be the case—there are ways for general contractors to reduce the risk of finding themselves in a two-front war. And every project does not have to devolve in a circular firing squad with you in the middle. That said, this article comes with the caveat that a general contractor cannot avoid a two-front war in every instance, nor does this article examine every imaginable way to reduce the risk of a two-front war (see e.g. https://www.consensusdocs.org/pass-through-subcontractor-claims-liquidating-agreements-and-avoiding-a-two-front-war/). But this article will provide an overview of several key tools that can be used to minimize the risk of falling into a classic blunder.
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William Underwood, Jones Walker LLPMr. Underwood may be contacted at
wunderwood@joneswalker.com
New Jersey Law regarding Prior Expert’s Testimony
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFMary Pat Gallagher writing for the New Jersey Law Journal reported that “[l]awyers who track down an opposing expert's testimony from prior cases must disclose that fact during discovery but need not say whether they plan to use it in cross-examining the expert at trial, a New Jersey appeals court says.” In Dalton v. Crawley, the Appellate Division held that “[d]ecisions about cross-examination ‘involve the attorney's mental processes, so they are inherently work product.’”
The issue began when “one of the defense lawyers, Michael McGann, figured out from the deposition questions Mahoney directed at one of his experts that he had transcripts of testimony from earlier cases,” according to the New Jersey Law Journal. “Hit with a notice to produce the transcripts, [Plaintiff attorney Brian] Mahoney refused, saying they were ‘attorney work product and we will not be telling you what we have developed regarding this expert.’"
The New Jersey Law Journal declared that the “ruling means both sides will have to indicate what transcripts they have gathered for use—giving the name of each expert as well as the name and docket number of the prior cases where those experts testified. “
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So You Want to Arbitrate? Better Make Sure Your Contract Covers All Bases
August 16, 2021 —
Stephanie Nolan Deviney - ConsensusDocsAs a General Contractor, you may prefer to arbitrate any contractual disputes rather than engage in protracted litigation. Many Courts favor arbitration clauses and will enforce them if there is a sufficient reason to do so. However, there are several issues that a General Contractor should consider when including an arbitration clause in its construction agreement with its client. When an arbitration clause is not properly crafted, questions can arise as to who must arbitrate? Who decides whether to arbitrate? Who selects the arbitrator? What will the subject matter of the arbitration be? A look at a recent case in Pennsylvania highlights the need for properly crafted arbitration clauses.
A Recent Case Highlights The Importance Of Arbitration Clauses
In TEC Construction, LLC v. Greg Rich and Lora Rich filed in the Court of Common Pleas, Allegheny County, Pennsylvania, TEC Construction, LLC (“TEC”) and Greg and Lora Rich (the “Riches”), entered into a Construction Agreement with an arbitration clause. Specifically, the parties to the Construction Agreement, TEC and the Riches, agreed to arbitrate any disputes with the American Arbitration Association. Five subcontractors completed the work under the Construction Agreement but none of the subcontractors agreed to arbitrate.
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Stephanie Nolan Deviney, Fox Rothschild LLP (ConsensusDocs)Ms. Deviney may be contacted at
sdeviney@foxrothschild.com
Heads I Win, Tails You Lose. Court Finds Indemnity Provision Went Too Far
May 25, 2020 —
Garret Murai - California Construction Law BlogWe all love David and Goliath stories. The underdog winning against the far stronger (and dastardly) opponent. Think Rocky Balboa versus Ivan Drago, the Star Wars Rebellion versus the Galatic Empire, Indiana Jones versus a good chunk of the Third Reich. And now, we have Margaret Williams.
The Story of Margaret Williams and her LLC
The story, told in Long Beach Unified School District v. Margaret Williams, LLC, Case No. B290069 (December 9, 2019), is about Margaret Williams. Ms. Williams (we’ll just call her “Margaret” going forward because it just sounds better when telling a story) worked for nearly ten years full-time for the Long Beach Unified School District, toiling day in and day out doing construction management and environmental compliance work, including work involving the clean up of material at a school construction site contaminated with arsenic.
Although she worked full-time for the District for nearly ten years, she wasn’t an employee. Rather, she was a contractor. And, on top of it all, as a condition of working for the District, the District required that she form a company in order to contract with the District. According to Margaret, “In order to work with the District, I was directed . . . to form a corporation or partnership. This was the only way I could work for the District: I could not enter into a contract with the District as an individual.” So, in 2006, she formed a company, simply called Margaret Williams, LLC.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
