COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Performance Bonds: Follow the Letter of the Bond and Keep The Surety Informed

December 06, 2021 — Bill Shaughnessy, Jones Walker, LLP - ConsensusDocs
Construction surety bonds are risk management tools utilized by parties on large construction projects. However, bonds are not insurance, and a surety is not an “insurer” of the project. Different from insurance, a surety’s obligation to act typically arises if the principal fails to perform in accordance with the construction contract, and if the claimant satisfies the conditions precedent to enforcing the bond.[1] This article focuses exclusively on performance bonds on private projects,[2] and highlights practical considerations and surety defenses to enforcement of the performance bond.[3] Spoiler alert – the party making a claim on the bond must strictly adhere to the conditions precedent set forth in the bond throughout the construction project and when calling upon the surety to take action, otherwise the performance bond may be rendered void and unenforceable. Read the court decision
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Reprinted courtesy of Bill Shaughnessy, Jones Walker, LLP
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

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Surety Bond Producers Keep Eye Out For Illegal Waivers

July 01, 2019 — Richard Korman - Engineering News-Record
The surety bond industry regularly reminds state and local governments, politely, that public works in all states must involve surety bonds. That’s the law. And the National Association of Surety Bond Producers, the bond brokers and agents trade group, has been letting state and local officials know, in writing. Read the court decision
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Reprinted courtesy of Richard Korman, ENR
Mr. Korman may be contacted at kormanr@enr.com

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California Posts Nation’s Largest Gain in Construction Jobs

March 28, 2012 — CDJ STAFF

California added about 8,900 construction jobs in January, 2012, as compared to December, 2011, leading the nation in the number of added construction jobs. Thirty-four other states also saw added construction jobs. A year prior, only twenty-eight states added construction jobs. The Associated General Contractors of America analyzed the monthly report from the Labor Department. Ken Simonson, the chief economist for the Associated General Contractors of America noted that “the gains this January partly reflect very mild weather this winter and exceptionally cold and snowy conditions a year before.”

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Congratulations to Partner John O’Meara for Being Named as One of America’s Top 100 Civil Defense Litigators for Three Consecutive Years!

September 20, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Please join Bremer Whyte Brown & O’Meara, LLP in congratulating Woodland Hills Partner John O’Meara for being selected as one of America’s Top 100 Civil Defense Litigators for the third year in a row! Membership among America’s Top 100 Civil Defense Litigators highlights the accomplishments of the nation’s most esteemed and skilled Civil Defense attorneys. Only 100 attorneys in each state receive this honor and candidates for membership are identified through third-party research or peer nominations by America’s Top 100 or elite attorneys in the community. Candidates are judged by the attorney’s lifetime legal achievements, professional experience, significant case results, peer reputation, client satisfaction, other notable honors, media notoriety, and community impact. Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP Read the full story... Read the court decision
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New Case Alert: California Federal Court Allows Policy Stacking to Cover Continuous Injury

November 23, 2016 — William S. Bennett - Saxe Doernberger & Vita, P.C.
“Stacking” is a practice that is very favorable for policyholders, especially in environmental coverage cases involving extended pollution events. It allows a policyholder to combine the limits of multiple consecutive policies to cover continuous injury claims occurring over multiple policy periods. Without stacking, insurers can limit a policyholder’s recovery to a single policy limit. The Eastern District of California recently decided that a policyholder could stack the limits of six consecutive policies, where the occurrence was a continuous injury spanning all six policy years. Among other rulings, the court determined that the plain language of the policy under dispute did not prevent stacking. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

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How Pennsylvania’s Supreme Court Decision Affects Coverage of Faulty Workmanship Claims

March 31, 2014 — Beverley BevenFlorez-CDJ STAFF
Darin J. McMullen of the firm Anderson Kill explained how a recent opinion by the Pennsylvania Supreme Court allows “Pennsylvania policyholders” to “more confidently challenge insurance companies’ denials of faulty workmanship claims.” The decision in Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 Pa. Super 311 (Dec. 3, 2013) “reverses a nearly decade-long trend of Pennsylvania decisions narrowing the scope of insurance coverage for construction and defect-related claims under commercial general liability insurance policies,” according to McMullen. “Equally important, the Indalex ruling dealt a blow to the insurance industry’s continual efforts to win overbroad expansion of the rulings in Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., and Erie Ins. Exchange v. Abbott Furnace Co., which found that claims of faulty workmanship in some circumstances may not constitute coverage-triggering ‘occurrences.’” Read the court decision
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Preparing Your Business For Internal Transition

October 14, 2019 — Stephen P. Katz, Esq. - ConsensusDocs
When is it right to start thinking about succession planning and preparing a construction company for transition? Many would agree – in concept, at least – that serious thought regarding succession and transition planning should begin at a company’s inception and be revisited throughout its lifecycle, but as a practical matter, it is frequently not part of the mindset when growing a business. This article explores issues that construction company owners should consider in order to achieve smooth transition of ownership and control. We will address three critical questions:

• What happens to the business when an owner retires;
• In the event an owner(s) become disabled; and,
• Unplanned exit/owner pre-deceases her/his exit from the company

Owners who do not plan carefully for transition are often faced with the less than appealing option of liquidating their business for much less than its value, or by closing the business with no return upon that event. However, those who plan carefully can realize the value of their life’s work, pass the business to the next generation and see their legacy continue. Read the court decision
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Reprinted courtesy of Stephen P. Katz, Esq., Peckar & Abramson, P.C.
Mr. Katz may be contacted at skatz@pecklaw.com

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California’s Fifth Appellate District Declares the “Right to Repair Act” the Exclusive Remedy for Construction Defect Claims

September 03, 2015 — Stephen A. Sunseri – Gatzke Dillon & Balance LLP
August 26, 2015 - The Fifth Appellate District ruled SB800 (California's "Right to Repair Act" [the "Act"]) provides the sole remedy for homeowners in construction defect actions. The court found "no other cause of action is allowed to recover for repair of the defect itself or for repair of any damage caused by the defect." (McMillin Albany LLC v. Superior Court of California (Aug. 26, 2015, No. F069370) __ Cal.App.4th __ [2015 WL 5029324].) The court issued a blistering criticism of the Fourth Appellate District's prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act. In McMillin, the court reviewed whether a homeowner was required to follow the Act's prelitigation procedures even after dismissing a cause of action arising under the Act. In deciding the issue, the court quoted directly from the first line of the Act (Civ. Code § 896) and found "[i]n any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction … , the claimant's claims or causes of action shall be limited to violation of" the standards set out in the Act. The court recognized the statutory exceptions to this rule, such as for claims arising under contract, or any action for fraud, personal injuries, or statutory violations. (Civ. Code., § 943.) However, this result directly conflicts with the Fourth Appellate District's decision in Liberty Mutual, which found homeowners can circumvent the entire Act by simply alleging property damage claims. McMillin rejects Liberty Mutual's "reasoning and outcome" as being inconsistent with the express language of the Act. McMillin found that Liberty Mutual failed to fully analyze the statutory language of the Act, which (on its face) limits any action for construction deficiencies to the requirements of the Act. McMillin concludes the Legislature intended that all construction defect actions (for new residences sold on or after January 1, 2003), are subject to the requirements of the Act, including the prelitigation procedures, regardless of whether a complaint expressly alleges a cause of action under the Act or not. McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts. McMillin directly conflicts with Liberty Mutual, and because of this conflict, the issue will need to be resolved by the California Supreme Court. Until such review is granted, the conflict will remain and trial courts will likely continue to conflate the issue. Read the court decision
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Reprinted courtesy of Stephen A. Sunseri, Gatzke Dillon & Balance LLP
Mr. Sunseri may be contacted at ssunseri@gdandb.com

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