Fairfield Connecticut Building Expert Directory

Indemnitor Owes Indemnity Even Where Indemnitee is Actively Negligent, California Court Holds

June 15, 2017 — Garret Murai - California Construction Law Blog
Indemnity provisions are one of the most fought over provisions in design and construction contracts. But while parties generally understand the intent behind indemnity provisions — that one party (the “indemnitor”) agrees to indemnify (and often defend as well) another party (the “indemnitee”) from and against claims that may arise on a project — few understand how they are actually applied. In a recent Court of Appeals decision, Oltmans Construction Company v. Bayside Interiors, Inc. (March 30, 2017), Case No. A147313, the California Court of Appeals for the First District examined an indemnity provision and its “except to the extent of” provision whereby a subcontractor agreed to indemnify (and defend) a general contractor from claims arising on a project “except to the extent of” the general contractor’s active negligence or willful misconduct and whether such language either: (1) bars a general contractor from seeking indemnity where the general contractor was actively negligent; or (2) simply bars a general contractor from seeking indemnity where the general contractor was actively and solely negligent, thereby, requiring a subcontractor to indemnify the general contractor where the negligence of another party may have also contributed to the injury or damage. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Construction Litigation Roundup: “I Never Had a Chance”

May 29, 2023 — Daniel Lund III - Lexology
“I never had a chance.” Such was the plea of a general contractor to a Maryland federal court after having been terminated for failure to perform. “The Agreement provides no express right to cure,” found the court, weighing in on the contractor’s wrongful termination claim. Indeed, the contract was also very clear on termination, allowing for termination for cause on numerous bases, including a common catchall: if the contractor “persistently fails to perform the provisions of this Agreement.” In advance of the actual date of termination, the owner wrote to the contractor, in accordance with the contract: “Notice is also given that seven days from the date of this correspondence, [owner] will exercise its [termination] rights under Section 13.2.2.2 of the Contract." The communication from the owner contained no discussion of allowing the contractor an opportunity to cure its alleged default. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

The 2021 Top 50 Construction Law Firms™

June 14, 2021 — Cybele Tamulonis - Construction Executive
Vaccination rates continue to rise, mandates are loosening for returning to work and school, and a $2 trillion infrastructure bill is looming on the horizon, but contractors remain cautious and counseled by the legal experts who thrive in the complex field of construction law. According to the latest report by the Bureau of Labor Statistics, construction employment numbers did not move much in April despite an increased demand for housing and a recovering economy. Due to continued fallout from the pandemic—and what seems like no end in sight for the rising costs of materials—contractors have been turning to construction law firms to navigate delayed projects, interpret contract language, assist in risk mitigation and ensure the road ahead is paved with understandable and protective clauses. For the 2021 survey for the annual U.S. ranking of The Top 50 Construction Law Firms™, Construction Executive’s editorial team reached out to dozens of attorneys at the nation’s best construction law firms to learn how the legal landscape is changing, as well as how legal teams are aiding clients with sharpening contract language and pivoting in response to challenges in the wake of the COVID-19 pandemic. Reprinted courtesy of Cybele Tamulonis, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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House of the Week: Spanish Dream Home on California's Riviera

July 30, 2014 — Emily Heffter – Bloomberg
Famous clients of renowned Los Angeles architect Richard Landry are not known for their restraint. The Brentwood estate he designed for Tom Brady and Gisele Bundchen has a moat and just sold to Dr. Dre for $40 million. Michael Jackson died in a home Landry designed (a rental), and he has designed luxurious mansions for Wayne Gretzky, Michael Bolton, Mark Wahlberg and Kenny G. Still, homeowner Lorna Auerbach did something unique when Landry started designing her dream home in Pacific Palisades: She flew him to Spain, with her, for 10 days. Read the court decision
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Reprinted courtesy of Emily Heffter, Bloomberg

Property Owner Entitled to Rely on Zoning Administrator Advice

May 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In the recent case of In Re Langlois/Novicki Variance Denial, 175 A.3d 1222, 2017 VT 76 (2017), the Vermont court addressed the question of whether a property owner could enforce – by equitable estoppel principles – a representation by a town zoning administrator that no permit or variance was needed for the property owner’s proposed construction. In that case, a landowner wanted to add a pergola to an existing concrete patio on his land. During a social visit at the property, the property owner asked the town zoning administrator if he needed a permit. The town zoning administrator told the property owner that no permit was needed. The property owner thereafter showed the zoning administrator a sketch of the planned construction, and again asked if a permit was required. The town zoning administrator looked at the sketch and repeated his prior advice that no permit was needed. The property owner then spent $33,000 to build the pergola. After incurring the expense, the property owner was advised that the structure violated zoning regulations. The property owner requested a variance, which the zoning board denied. The Court held that the town was estopped from requiring removal of the pergola. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

“Bee” Careful: Unique Considerations When Negotiating a Bee Storage Lease Agreement

March 27, 2019 — Colton Addy - Snell & Wilmer Real Estate Litigation Blog
As demand for commercial bees used to pollinate crops (such as almond trees) has grown, so has the demand for facilities to store bees. Entering a lease agreement for the storage of live bees presents some unique issues the parties need to consider when negotiating the lease agreement. Don’t Bee Short-Sighted: Bees are often transported to different areas depending on the time of year, which means bees are not stored in the same facility all year. The lease agreement will often only provide for the storage of bees during the season when the bees are used for pollination in that particular area, but that does not mean the parties must limit the term of the lease agreement to a single season. The parties may consider entering into a lease agreement for multiple years that only applies during the pollination season each year. Bee Mindful of the Rent: Whereas the parties usually base rent in a typical commercial lease agreement off of the square footage of space the tenant uses in the premises, it often makes more sense for both parties negotiating a lease for the storage of bees to base the rent on the number of beehives or bee colony boxes stored at the facility. Basing the rent on the number of beehives or bee colony boxes provides the landlord with flexibility in storing the bees of multiple tenants in the same facility, and it can give the tenant flexibility with the number of bees it may need stored at the facility in any given season. With such a rental arrangement, a landlord should consider asking for a commitment from the tenant to deliver at least a certain number of beehives or colonies for storage, and the tenant should consider asking for a commitment from the landlord to reserve space in the facility for at least that same number of beehives or colonies as the tenant is giving a commitment for. Additionally, the parties will need to determine when rent will be paid. In a general commercial lease agreement, rent is usually paid monthly. With a bee storage lease agreement, however, a landlord may want to require the tenant to pay all of the rent for the season upon delivery of the bees, and the landlord may also want the tenant to pay a percentage of the rent to reserve space in the facility prior to delivery of the bees. This allows the landlord to get an early indication of what space in the facility it will have available in the facility for other tenants given the somewhat flexible rental arrangement of the parties. Read the court decision
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Reprinted courtesy of Colton Addy, Snell & Wilmer
Mr. Addy may be contacted at caddy@swlaw.com

Florida Appellate Court Holds Four-Year Statute of Limitations Applicable Irrespective of Contractor Licensure

June 22, 2016 — Clay Whittaker – Florida Construction Law Update
In Brock v. Garner Window & Door Sales, Inc.,[1] Florida’s Fifth District Court of Appeal rejected a novel attempt to circumvent Florida’s well-established four-year statute of limitations for all actions founded on the construction of an improvement to real property. Plaintiff filed a lawsuit alleging breach of contract as a result of water intrusion damage following the installation of windows.[2] It was undisputed that Plaintiff commenced the litigation more than four years following the discovery of the allegedly latent defect in the window installation.[3] Plaintiff’s counsel argued that the window contractor could not rely on the four-year statute of limitations because the window subcontractor was not a licensed contractor and, therefore, the five-year statute of limitations for actions founded on written contracts should apply. Read the court decision
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Reprinted courtesy of Clay Whittaker, Cole, Scott, & Kissane, P.A.
Mr. Whittaker may be contacted at clay.whittaker@csklegal.com

Venue for Miller Act Payment Bond When Project is Outside of Us

December 02, 2019 — David Adelstein - Florida Construction Legal Updates
The proper venue for a Miller Act payment bond claim is “in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.” 40 U.S.C. s. 3133(b)(3)(B). Well, there are a number of federal construction projects that take place outside of the United States. For these projects, where is the correct venue to sue a Miller Act payment bond if there is no US District Court where the project is located? A recent opinion out of the Southern District of Florida answers this question. In U.S. ex. rel. Salt Energy, LLC v. Lexon Ins. Co., 2019 WL 3842290 (S.D.Fla. 2019), a prime contractor was hired by the government to design and construct a solar power system for the US Embassy’s parking garage in Burkina Faso. The prime contractor hired a subcontractor to perform a portion of its scope of work. The subcontractor remained unpaid in excess of $500,000 and instituted a Miller Act payment bond claim against the payment bond surety in the Southern District of Florida, Miami division. The surety moved to transfer venue to the Eastern District of Virginia arguing that the Southern District of Florida was an improper venue. The court agreed and transferred venue. Why? Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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