Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment
November 19, 2021 —
Bradley T. Guldalian - Traub LiebermanOn September 14, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment on behalf of a City which operated a park containing a natural bathing spring in Sarasota County, Florida. The underlying loss occurred when the Plaintiff went to the park, entered the spring without incident, swam for more than an hour, then exited the spring and was returning to the area where she had stored her belongings when she slipped and fell on mud and grass, sustaining an open angulated fracture of her right tibia and fibula. The Plaintiff was rushed to the hospital where she underwent open reduction, internal fixation surgery on her right leg which consisted of implantation of a metal rod into the medullary cavity of her tibia that was secured by two proximal and two distal interlocking screws. She was in the hospital for four days. Upon discharge, the Plaintiff was placed in a walking boot and confined to a wheelchair for several months. The Plaintiff incurred nearly $100,000 in medical expenses. The Plaintiff filed a premises liability action against the City claiming it failed to maintain its premises in a reasonably safe condition. The Plaintiff also alleged that the City failed to warn her that the area where she had stored her belongings had become saturated and slippery proximately causing her fall and resulting injuries.
After the close of discovery, Mr. Guldalian filed a Motion for Summary Judgment on behalf of the City arguing the wet grass and mud upon which the Plaintiff fell and injured herself was a byproduct of patrons going in and out of the water and walking to and from the area where they stored their belongings, was open and obvious, and did not constitute a dangerous condition as a matter of law. Citing to case law from the Florida Supreme Court which held that it is common knowledge that walks adjacent to, leading to, or surrounding a bathing area generally have water constantly thrown upon them and are in a slippery condition, as well as deposition testimony from the Plaintiff confirming she had been swimming at the spring for the past eighteen plus years and was “very familiar” with the park, the spring, and the area where she normally stored her belongings, Mr. Guldalian argued that some injury-causing conditions, like wet grass and mud surrounding a swimming area, are simply so open and so obvious that they cannot be held, as a matter of law, to give rise to liability as dangerous conditions.
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Bradley T. Guldalian, Traub LiebermanMr. Guldalian may be contacted at
bguldalian@tlsslaw.com
Texas Federal Court Finds Total Pollution Exclusion Does Not Foreclose a Duty to Defend Waterway Degradation Lawsuit
October 24, 2022 —
Jeremy S. Macklin - Traub Lieberman Insurance Law BlogEvanston Ins Co. v. Tex. Concrete and Sand Gravel, Inc., No. 4:20-cv-00103 (S.D. Tex. Aug. 30, 2022) is a coverage dispute over Evanston Insurance Co.’s (“Evanston”) duty to defend and indemnify Texas Concrete Sand and Gravel, Inc. (“Texas Concrete”) and Apcon Services, LLC (“Apcon”) (collectively, the “Insureds”) for their contributions to the degradation of the waterways and retention lakes built to control flooding in the Houston area. On August 3, 2022, Magistrate Judge Yvonne Y. Ho recommended that Evanston’s motion for summary judgment be denied. On August 30, 2022, District Court Judge Alfred H. Bennett adopted Judge Ho’s Memorandum and Recommendations.
In 2017, Hurricane Harvey caused significant flooding of the Houston area, which resulted in large-scale property damage. The underlying lawsuits alleged that, since 1954, Lake Houston’s waterways sustained a steady decline in capacity because of the release of materials into the waterway system. The Insureds allegedly contributed to the decline by allowing “materials and substances” (such as processed water, silt, sand, sediment, dirt, rock, and aggregate) to run off their privately controlled properties and into the Houston waterways. The reduced capacity, allegedly caused in part by the Insureds, exacerbated the flooding after Hurricane Harvey hit, increasing the damage from the hurricane.
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Jeremy S. Macklin, Traub LiebermanMr. Macklin may be contacted at
jmacklin@tlsslaw.com
Eight Ways to Protect a Construction Company Before a Claim Is Filed
November 04, 2019 —
Mary Bacon - Construction ExecutiveClaims are inevitable in the construction industry. They can take on a life of their own and come with the burden of legal fees, wasted executive time and a possible judgment. Too often the only winners are the lawyers.
TIPS FOR PROTECTING MANAGEMENT AND THE BUSINESS BEFORE A CLAIM IS FILED
- Respect the business entity’s corporate structure. First and most importantly, respect the business entity’s corporate form. Legal entities have certain formalities like filing an annual list of officers, maintaining separate bank accounts, conducting certain meetings and following bylaws, etc. Respect these formalities. Failure to follow them exposes the owner to personal liability for company debts. And while a business claim has the potential to wipe out a business, owners should not risk having their personal assets on the line as well.
- Get a good contract. In most instances, a contract governs what happens and who is responsible for payment associated when a certain issue or dispute arises. A clear, well-written contract can often avoid a dispute or liability for a dispute. Actively participate in the contract negotiation and drafting process to make sure each party’s role and responsibilities are clearly accounted for.
- Make friends with clients. While it is true that “business is business,” people are often fairer and more willing to work towards a solution for people they are friends with. In most cases, friends will help friends in ways that people would not help mere business associates. When encountering a problem on a job, a friend may be willing to help achieve a more favorable outcome.
Reprinted courtesy of
Mary Bacon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Bacon may be contacted at
mbacon@spencerfane.com
Why Are Developers Still Pouring Billions Into Waterlogged Miami?
November 30, 2016 —
James Tarmy – BloombergOn Sunday, an ebullient procession of artists, performers, and city residents filled Collins Avenue between Miami Beach’s 32nd and 36th streets to inaugurate the Faena Forum, a 43,000--square-foot, $150 million, performing- and visual-arts space that’s the cultural centerpiece of the Faena District, a $1 billion development comprising luxury hotels, restaurants, and real estate. The complex is the brainchild of Alan Faena, an Argentinian fashion designer-cum-developer known for his all-white outfits, and Len Blavatnik, a Ukrainian born, New York-based billionaire whose net worth is estimated by Bloomberg Billionaires to be $18.6 billion.
The parade/carnival/performance was was titled “Side by Tide,” which might be an overly optimistic assessment of Miami Beach's sea level. With "king tides" flooding parking garages and a University of Miami study reporting that Miami Beach has seen a 200 percent increase in flooding in the last decade, the tide isn’t on anyone’s side. It’s already beneath the city, seeping upward, often as not, through the ground’s porous limestone and into buildings’ backlogged storm drains. Aside from ruining the undercarriages of residents’ Porsches, this ground-up flooding has a second, perhaps more deleterious effect on the long-term feasibility of Miami Beach: Normal defenses against a rising ocean—such as sea walls or dykes—are useless.
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James Tarmy, BloombergMr. Tarmy may be followed on Twitter @jstarmy
San Diego’s NFL Stadium Dream Counts on Munis for Chargers’ Home
June 10, 2015 —
James Nash and Darrell Preston – BloombergSan Diego, still dealing with the legacy of a pension crisis that led politicians to consider bankruptcy a decade ago, may throw taxpayer money behind municipal bonds for a football-stadium bidding war.
The city and the National Football League’s Chargers are negotiating on a proposed $1.3 billion coliseum to keep the team from leaving for Los Angeles. A plan backed by a city panel would have San Diego pay $121 million of the new stadium’s debt, even though it still owes $52 million for the Chargers’ current home. San Diego County would chip in, too.
The quest to keep the team has triggered a debate over whether to finance professional football as the city deals with $2 billion of deferred maintenance brought about in part by mounting pension costs. The city’s retirement system has a shortfall just as large, which led voters three years ago to approve reducing benefits for city workers.
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James Nash, Bloomberg and
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The ARC and The Covenants
May 30, 2018 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome back Mike Collignon. Mike is a co-founder of the Green Builder Coalition. The Green Builder® Coalition amplifies the voice of green builders and professionals to drive advocacy and education for more sustainable building practices.
As we start to see signs of a housing recovery, slow as it may be, I feel the industry is in a great position. All the effort put in by so many to improve our energy codes, green building programs & rating systems will finally be able to bear fruit. We can start to build homes that are much more environmentally responsible. Sure, we can have a lengthy debate about implementation and adoption rates, but you’ve got to walk before you can run. Unfortunately, I can see that progress getting shackled by an unexpected impediment: the architectural review committee (ARC; sometimes called “architectural committee” or “architectural control authority”) and the covenants of a homeowners’ association.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Construction Defects Are Not An Occurrence Under New York, New Jersey Law
June 18, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe New York Supreme Court, Appellate Division, determined there was no coverage for construction defects under New York or New Jersey law. Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Turner Constr. Co., 2014 N.Y. App. Div. LEXIS 3546 (N.Y. App. Div. May 15, 2014).
The property owner retained Turner Construction to serve as the general contractor. Turner subcontracted with Permasteelisa North America Corporation to design and build the exterior wall, a "curtain wall," which consisted of granite and glass.
A segment of the pipe rail system fell to the street from the eighth floor of the building. An investigation determined that more than 20% of the pipe rail connections surveyed did not conform to the building plans. Additional problems included inconsistencies in the method of rail attachment, bent brackets on the pipe rail system, cracked glass louvers, cracked glass panels, and water infiltration.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Termination for Convenience Is Not a Termination for Default
April 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesA termination for convenience is NOT a termination for default. They are NOT the same. They should NOT be treated as the same. I am a huge proponent of termination for convenience provisions because sometimes a party needs to be able to exercise a termination for convenience, but the termination is not one that rises to a basis for default. However, exercising a termination for convenience does not mean you get to go back in time and convert the termination for convenience into a termination for default. It does not work like that. Nor should it.
An opinion out of the Civilian Board of Contract Appeals – Williams Building Company, Inc. v. Department of State, CBCA 7147, 2024 WL 1099788 (CBCA 2024 – demonstrates a fundamental distinction between a termination for convenience and a termination for default, i.e., that you don’t get to conjure up defaults when you exercise a termination for convenience:
Because a termination for convenience essentially turns a fixed-price construction contract into a cost-reimbursement contract, allowing the contractor to recover its incurred performance costs, the resolution of this appeal will involve identifying the total costs that [Contractor] incurred in performing this contract before [Government] terminated it for convenience. Since [Government] terminated the contract for convenience rather than for default, it no longer matters whether, in the past,[Contractor] acted intentionally in overstating the amount of its incurred costs or committed a contract breach. Ultimately, as permitted in response to a termination for convenience, [Contractor] will recover those allowable costs that [Contractor]establishes it incurred in performing the contract.
Williams Building Company, supra.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
