Superior Court Of Pennsylvania Holds Curb Construction Falls Within The Scope Of CASPA
September 17, 2014 —
Jerrold Anders & Michael Jervis – White and Williams LLPIn Prieto Corp. v. Gambone Construction Co., the Superior Court of Pennsylvania recently considered three issues arising out of a construction dispute, including whether construction of a curb falls within the scope of the Contractor and Subcontractor Payment Act (CASPA), 73 P.S. §§ 501-516. CASPA is a Pennsylvania statute which is intended to protect contractors and subcontractors from abuses in the building industry and which establishes certain rules and deadlines for payments between owners, contractors, and subcontractors. Failure to abide by the act’s payment requirements subjects an owner or contractor to liability for interest, penalties and attorneys fees. In this case, Prieto was a subcontractor hired by Gambone to construct concrete or Belgian block curbs at Gambone’s property developments. Prieto sued Gambone under CASPA for failure to pay its invoices for four projects. After the trial court entered judgment for Prieto, Gambone appealed, arguing that CASPA did not encompass the work at issue, i.e. the construction of curbs, because curbs did not constitute an improvement to real property.
Reprinted courtesy of
Jerrold Anders, White and Williams LLP and
Michael Jervis, White and Williams LLP
Mr. Anders may be contacted at andersj@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com
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Ambiguity Kills in Construction Contracting
May 27, 2019 —
Christopher G. Hill - Construction Law MusingsWell, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . .
Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al
In this case, English, a general contractor, entered into a contract for Quality Assurance (QA) functions with RK&K, the defendant, on a contract English entered into with the Virginia Department of Transportation (VDOT). Needless to say, because this would not be a post at Musings otherwise, there were issues with the QA performed by RK&K leading to additional costs for English to correct certain work that did not comply with the contract documents between VDOT and English. English sued for breach of contract based upon a term sheet, signed by the parties, from RK&K that required RK&K to indemnify English for claims by VDOT that related to RK&K’s work (the English Term Sheet). RK&K moved to dismiss the complaint based upon a different term sheet, also signed by the parties, which stated that RK&K could not be held responsible for English’s failure to perform pursuant to the contract documents (the RK&K Term Sheet).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Trends and Issues which Can Affect Workers' Compensation Coverage for Construction Companies
December 26, 2022 —
Saxe Doernberger & Vita, P.C.Recent trends in workers’ compensation coverage suggest that the number of claims are likely to continue to increase, specifically for high-risk industries, like the construction industry. This article explores multiple trends and issues which are likely to impact workers’ compensation insurance for construction companies. Several of these trends and issues reflect demographic, labor, and technological shifts, which have important implications for contractors and construction companies.
1. Technological Innovation and Worker Safety
New wearable technologies and other data-collecting products such as helmets which warn of employee fatigue and sensors which help with ergonomic corrections have emerged in the markets to support safety measures in the construction industry. Although devices such as these tools can help business owners to demonstrate the implementation of safety programs to their insurance carriers, they can also distract the workers who are wearing them or go through a product malfunction, which could lead to injuries in the workplace and could also result in higher workers’ compensation premiums. While these new technological devices are intended to support worker safety on construction sites, it is also important for business owners to evaluate the potential risks of new technologies on a project site.
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Saxe Doernberger & Vita, P.C.
“Rip and Tear” Damage Remains Covered Under CGL Policy as “Accident”—for Now.
September 01, 2016 —
Michael Lindsay & Luke Mecklenburg – Snell & Wilmer Real Estate Litigation BlogThe Colorado Supreme Court has approved a settlement between the parties to an appeal of the 2012 Colorado Pool Systems v. Scottsdale Insurance Company Court of Appeals case, leaving that ruling intact. The ruling parses a fine line between uncovered costs of repairing defective work and covered costs of damage caused to nondefective work while repairing defective work. This nuanced opinion, which is now established Colorado law, is worth a second look.
In Colorado Pool Systems, Inc. v. Scottsdale Insurance Company, the Colorado Court of Appeals determined that so-called “rip and tear” damage caused by a construction professional to nondefective work while correcting defective work is covered as an “accident” under standard Commercial General Liability insurance language. 317 P.3d 1262 (Colo. App. 2012). A pool company excavated and built a rebar frame in order to construct a pool, but it hired a subcontractor to pour the concrete. An inspector later noticed that some of the rebar was too close to the surface, and the pool company agreed to demolish and replace the pool after an agent of its insurer represented that this loss would be covered. But the agent was wrong, the insurer denied coverage, and litigation ensued.
Reprinted courtesy of
Michael Lindsay, Snell & Wilmer and
Luke Mecklenburg, Snell & Wilmer
Mr. Lindsay may be contacted at mlindsay@swlaw.com
Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com
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Is There a Conflict of Interest When a CD Defense Attorney Becomes Coverage Counsel Post-Litigation?
September 01, 2011 —
Chad Johnson of Higgins, Hopkins, McLain & Roswell, LLCIn Weitz Co., LLC v. Ohio Cas. Ins. Co., the U.S. District Court for the District of Colorado was asked to rule on a motion to disqualify counsel in an insurance coverage action. 11-CV-00694-REB-BNB, 2011 WL 2535040 (D. Colo. June 27, 2011). Motions to disqualify counsel are viewed with suspicion, as courts “must guard against the possibility that disqualification is sought to ‘secure a tactical advantage in the proceedings.’” Id. at *2 (citing Religious Technology Center v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996).
Weitz Company, LLC (“Weitz”) is a general contractor and defendant in an underlying construction defect suit which had concluded before the action bringing rise to this order. In the underlying action, Weitz made third-party claims against subcontractors, including NPW Contracting (“NPW”). Weitz was listed as an additional insured under NPW’s policies with both Ohio Casualty Insurance Company and Mountain States Mutual Casualty Company (collectively “the Carriers”). The Carriers accepted Weitz’s tender of defense under a reservation of rights. However, neither insurance carrier actually contributed to Weitz’s defense costs in the underlying action. At the conclusion of the construction defect action, the parties unsuccessfully attempted to apportion the attorney’s fees and costs. Eventually, Weitz brought suit against the recalcitrant carriers. The Lottner firm, which had previously represented Weitz in the underlying construction defect action, continued to represent Weitz in this coverage action.
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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC. Mr. Johnson can be contacted at johnson@hhmrlaw.com
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County Sovereign Immunity Invokes Change-Order Ordinance
December 20, 2017 —
Lizbeth Dison - AHC Contruction Law BlogThe recent case of Fulton County v. Soco Contracting Company, Inc. addresses two very interesting questions for local government attorneys. First, can a county ordinance bolster a defense of sovereign immunity against a contractor’s claims? Second, can a county waive sovereign immunity by failing to respond to Requests for Admission?
Facts:
County hired Contractor to construct a facility near the airport. The contract provided that change orders must satisfy a county ordinance, which required approval by the Board of Commissioners. But in emergency situations, the County Manager could approve change orders, as long as the contractor executes a proposed modification and the purchasing agent approves it.
The project suffered substantial delays, which Contractor attributed to weather, design delays, delays by the County in providing decisions on changes, and delays in obtaining permits during the federal government’s shutdown. As a result of these issues, Contractor comes County changed the scope of the contract. Contractor asserted claims against County for the delays and the changes to the work. The appellate opinion addresses the change order claims.
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Lizbeth Dison, Autry Hall & Cook, LLP
Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims
August 30, 2017 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogOn August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.”
In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty.
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Rick Erickson, Snell & WilmerMr Erickson may be contacted at
rerickson@swlaw.com
Lewis Brisbois Listed as Top 10 Firm of 2022 on Leopard Solutions Law Firm Index
March 27, 2023 —
Lewis Brisbois NewsroomLos Angeles, Calif. (March 17, 2023) – Lewis Brisbois has been listed among the top 10 law firms on the 2022 Leopard Law Firm Index. Billed as "the legal industry's most inclusive and up-to-date firm rating system," the index, published by Leopard Solutions, is a dynamic rating system that is updated twice weekly and focuses on law firms' profitability, viability, growth, and potential opportunity. Each year, Leopard Solutions compiles a list of the index firms' overall scores for the previous year. For 2022, Lewis Brisbois ranked 8th, with an aggregate score of 446 out of a possible 500. Other firms in the top 10 include Kirkland & Ellis, Ropes & Gray, and DLA Piper.
The Leopard Law Firm Index provides insights into law firm health and stability, using a robust list of criteria. This includes growth in attorney headcount, average attorney tenure, increases in revenue per lawyer (RPL) over a five-year period, relative success in lateral recruiting, and general retention of partners and associates, as well as the overall diversity within a firm. In an interview with Law360 Pulse, Leopard Solutions VP of Sales & Marketing Phil Flora noted that the top 10 firms are some of the largest firms with above average ethnic diversity.
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Lewis Brisbois
