Nevada Assembly Bill Proposes Changes to Construction Defect Litigation
April 14, 2011 —
Beverley BevenFlorez CDJ STAFFAssemblyman John Oceguera has written a bill that would redefine the term Construction Defect, set statutory limitations, and force the prevailing party to pay for attorney’s fees. Assembly Bill 401 has been referred to the Committee on Judiciary.
Currently, the law in Nevada states that “a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance, which is done in violation of law, including in violation of local codes or ordinances, is a constructional defect.” However, AB401 “provides that there is a rebuttable presumption that workmanship which exceeds the standards set forth in the applicable law, including any applicable local codes or ordinances, is not a constructional defect.”
The Nevada courts may award attorney fees to the prevailing party today. However, AB401 mandates that attorney fees must be awarded, and the exact award is to be determined by the Court. “(1) The court shall award to the prevailing party reasonable attorney’s fees, which must be an element of costs and awarded as costs; and (2) the amount of any attorney’s fees awarded must be determined by and approved by the court.”
AB401 also sets a three year statutory limit “for an action for damages for certain deficiencies, injury or wrongful death caused by a defect in construction if the defect is a result of willful misconduct or was fraudulently concealed.”
This Nevada bill is in the early stages of development.
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Mediation is (Almost) Always Worth a Shot
October 17, 2022 —
Christopher G. Hill - Construction Law MusingsAs Hurricane Ian is bearing down on Florida the economy is sputtering, it is easy to lose track of things that construction professionals (among others) can control. One of those things is how to resolve your construction dispute. When initial, and hopefully business-oriented, discussions break down and the construction lawyers get involved, often more formal means are required. One “formal” possibility that should always be considered and almost always attempted is the mediation of your dispute.
I know, I pound this particular gavel often. Why? Because not only are litigation and arbitration expensive and time-draining, you are putting your fate in the hands of a judge or arbitrator to decide. Let’s face it, most contractors (and solo construction lawyers for that matter) want as much control over their businesses and projects as possible. Mediation is the only third-party dispute resolution process that allows the parties to decide their own mutual fate. This is one of the primary reasons I almost always recommend that my clients try mediation before or after filing their lawsuit or arbitration demand.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)
October 16, 2018 —
Kevin J. Parker - Snell & Wilmer Real Estate Litigation BlogIn a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations.
Read the court decisionRead the full story...Reprinted courtesy of
Kevin J. Parker, Snell & WilmerMr. Parker may be contacted at
kparker@swlaw.com
Five Haight Attorneys Selected for Best Lawyers in America© 2021
September 07, 2020 —
Haight Brown & Bonesteel LLPFive Haight Brown & Bonesteel LLP attorneys were selected for Best Lawyers in America© 2021. Congratulations to William Baumgaertner, Bruce Cleeland, Peter Dubrawski, Michael Leahy and Denis Moriarty.
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers has received over 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
Read the court decisionRead the full story...Reprinted courtesy of
Haight Brown & Bonesteel LLP
Nine Firm Members Recognized as Super Lawyers or Rising Stars
June 29, 2017 —
Ceslie Blass - Ahlers & Cressman PLLCWhile we avoid using this blog as a platform for self-promotion, we recently received share-worthy distinctions, which both flatter and humble us. We invite you, our loyal readers, to celebrate in our success, which in great measure is due to you.
John P. Ahlers, one of the firm's founding partners, was ranked third overall across all practicing industries in Washington 2017 Super Lawyers and founding partner Paul R. Cressman, Jr. was ranked in the Top 100. The following other firm members were also recognized as Super Lawyers: Founding partner Scott R. Sleight, Bruce A. Cohen (Partner), Brett M. Hill (Partner), and Lawrence Glosser (Partner). In addition, Ryan W. Sternoff (Partner), James R. Lynch (Partner), Tymon Berger (Associate), and Lindsay (Taft) Watkins (Associate) were selected as Super Lawyers Rising Stars. Over half of the firm's lawyers received Super Lawyers distinction.
Read the court decisionRead the full story...Reprinted courtesy of
Ceslie Blass, Ahlers & Cressman PLLC
Federal Courts Reject Insurers’ Attempts to Recoup Defense Costs Expended Under Reservation of Rights
April 11, 2022 —
Anthony L. Miscioscia & Margo Meta - White and WilliamsIn situations where there is a dispute over a duty to defend, an insurer may provide a defense to its insured, subject to a reservation of rights, to not only deny coverage for a defense, but also to file a declaratory judgment action and recoup defense costs in the event it is determined there is no duty to defend. But are defense costs recoupable? Last week, federal trial courts in Georgia and Pennsylvania answered this question with a resounding “no”.
In Chemical Equipment Labs, Inc. v. Travelers Property Casualty Company of America, Case No. 19-3441, 2022 U.S. Dist. LEXIS 61298 (E.D.Pa. Mar. 31, 2022), the United States District Court for the Eastern District of Pennsylvania was called to determine whether Travelers Property Casualty Company of America (Travelers) was entitled to reimbursement of defense costs after it was determined that it had no duty to defend its insured in an arbitration for breach of a charter agreement. The Travelers’ policies did not contain an express reimbursement provision. The court found that Travelers was not entitled to reimbursement because under Pennsylvania law, “[r]eimbursement of defense costs requires an express provision in the written insurance contract.”
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Margo Meta, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Meta may be contacted at metam@whiteandwilliams.com
Read the court decisionRead the full story...Reprinted courtesy of
Kiewit-Turner Stops Work on VA Project—Now What?
December 31, 2014 —
Craig Martin – Construction Contractor AdvisorThe Kiewit-Turner joint venture created to build the VA’s hospital near Denver stopped work on December 10 after the Civilian Board of Contract Appeals ruled that the VA breached the contract. Kiewit-Turner claims that the VA owes it over $100 million on the project. And, given the appeals board’s recent ruling entirely against the VA, the claim may get some traction.
This project has been plagued with problems from the beginning. One strange aspect of the project is the VA’s apparent unwillingness to incorporate value engineering or require the architects to redesign the project to fit within the budget. The latest budget was $582M, while the latest projections show that the project will cost more than $1 billion to complete.
Read the court decisionRead the full story...Reprinted courtesy of
Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
In Florida, Exculpatory Clauses Do Not Need Express Language Referring to the Exculpated Party's Negligence
October 02, 2015 —
Edward Jaeger & William Doerler – White and Williams LLPIn Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective.
Background
Give Kids the World, Inc. (“GKW”) is a non-profit organization that provides free vacations to seriously ill children and their families at GKW’s resort village. To use the resort, vacationers have to fill out an application. Stacy and Eric Sanislo filled out an application to bring their seriously ill child to the village for a vacation and GKW accepted their application. Upon arriving at the resort, the Sanislos filled out a liability release form.
Reprinted courtesy of
Edward Jaeger, White and Williams LLP and
William Doerler, White and Williams LLP
Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com
Read the court decisionRead the full story...Reprinted courtesy of
