GOP, States, Industry Challenge EPA Project Water Impact Rule
January 02, 2024 —
Pam McFarland - Engineering News-RecordDays after the Biden administration rule reinstated state authority under the U.S. Clean Water Act to delay or deny construction permits on projects with water quality impacts, attorneys general from 11 Republican-led states, along with the American Petroleum Association, National Hydropower Association and Interstate Natural Gas Association of America, filed suit in federal court.
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Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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Pinnacle Controls in Verano
February 21, 2013 —
CDJ STAFFThe California Court of Appeals has applied the California Supreme Court’s recent Pinnacle decision to a new case, Verano Condominium Association v. La Cima Development. As in Pinnacle, La Cima sought to compel arbitration of construction defect claims with a homeowners association. The trial court denied La Cima’s attempt to compel arbitration on the grounds that the arbitration agreement was made with the individual homeowners and not the homeowners association. Further, it was determined that the CC&Rs “were unenforceable due to unconscionability.”
La Cima appealed, and the appeals court affirmed in part and reversed in part. After Pinnacle, La Cima sought a review. The Supreme Court of California directed the appeals court to vacate their earlier decision and reconsider, based on Pinnacle.
The Fourth Circuit Court has concluded that this conflicted with the ruling in Pinnacle. There, as in Verano, homeowners signed agreements that disputes with the developer would be settled through binding arbitration. The appeals court had found for the community association, but on review, the California Supreme Court reversed this decision.
The California Court of Appeals had two issue to consider in this review: whether the arbitration provisions applied to the homeowners association, and whether these provisions were unconscionable. The court concluded that “in light of Pinnacle it is clear the arbitration provisions set forth in the Verano CC&Rs constitute a valid agreement to arbitrate.” On the second question, the Verano CC&Rs were described by the court as “materially indistinguishable” from those in the earlier case. As the state Supreme Court found that those were not unconscionable, clearly neither were these.
The case was remanded for further proceedings and La Cima is entitled to recover the costs of the appeal.
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Contractors: Revisit your Force Majeure Provisions to Account for Hurricanes
September 20, 2017 —
David Adelstein - Florida Construction Legal UpdatesWe now know and can appreciate the threat of hurricanes. Not that we did not appreciate the reality of hurricanes–of course we did–but Hurricane Harvey and Hurricane Irma created the type of actual devastation we fear because they hit close to home. The fear came to life, creating panic, anxiety, and uncertainty. It is hard to plan for a force majeure event such as a hurricane because of the capriciousness of Mother Nature. But, we need to do so from this point forward. No exception! And, I mean no exception!!
A force majeure event is an uncontrollable event that cannot be anticipated with any degree of definitiveness. The force majeure event will excusably delay or hinder performance obligations under a contract. One type of force majeure event is a hurricane—an uncontrollable and unforeseen act of Mother Nature.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Construction Law Alert: A Specialty License May Not Be Required If Work Covered By Another License
March 07, 2011 —
Steven M. CvitanovicContractors should always be sure that they understand the licensing in any Subcontract or Prime Contract before entering into any agreement. However, on March 3, 2011, in the case of Pacific Casson & Shoring, Inc. v. Bernards Bros., Inc. 2011 Cal.App.Lexis 236, the Court of Appeal determined that if a specialty license is subsumed within another license, the specialty license may not be required.
Bernards entered into a subcontract with Pacific to excavate, backfill, grade and provide geotechnical design parameters for a hospital. The Prime Contract required the bidder to maintain a Class C-12 specialty earthwork license. However, Pacific only held a Class A general engineering license which it turns out was suspended during the performance of the work. Pacific sued Bernards for nonpayment of $544,567, but the lawsuit was dismissed because the trial court found that Pacific (1) lacked a C-12 license, and (2) Pacific’s Class A license was suspended for failure to pay an unrelated judgment. Pacific was also ordered to disgorge $206,437 in prior payments.
The Court of Appeal reversed and remanded. The Court of Appeal agreed with Pacific and held that a C-12 specialty license was not required despite the Prime Contract. The Court of Appeal found that the C-12 specialty license would have been “superfluous” since it was fully encompassed within the Class A requirements. However, the Court of Appeal also remanded the case for further
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Reprinted courtesy of Steve Cvitanovic of Haight Brown & Bonesteel, LLP.
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“Time Is Money!” In Construction and This Is Why There Is a Liquidated Damages Provision
February 01, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn construction, the adage “Time is Money!” rings true for all parties involved on a project. This includes an owner of a project that wants a project completed on time, i.e., by a substantial completion date. While substantial completion is often defined as when an owner can use a project for its intended purpose, this intended purpose typically equates to beneficial occupancy (in new construction) and other factors as identified in the contract.
The best mechanism for an owner to reinforce time and the substantial completion date is through a liquidated damages provision (also known as an LD provision) that includes a daily monetary rate for each day of delay to the substantial completion date.
A liquidated damages provision is not designed, and should NEVER be designed, to serve as a penalty because then it would be unenforceable. Instead, it should be designed to reasonably compensate an owner for delay to the substantial completion date that cannot be ascertained with any reasonable degree of certainty at the time the contract is being negotiated and executed. (Liquidated damages are MUCH easier to prove than actual damages an owner may incur down the road.) As an owner, you don’t really want to assess liquidated damages because that means the project is not substantially completed on time. And, in reality, a timely completed and performing project should always be better and more profitable than a late and underperforming project. However, without the liquidated damages provision, there isn’t a great way to hold a contractor’s feet to the fire with respect to the substantial completion date.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Newport Beach Attorneys John Toohey and Nick Rodriguez Receive Full Defense Verdict
July 31, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara is pleased to report that Partner John Toohey and Senior Associate Nicholas Rodriguez received a complete defense verdict after a 5-week jury trial in Orange County Superior Court.
The case involved a multimillion-dollar home in Orange County. Plaintiff had originally suffered a water loss throughout areas of the home. Our client, an Orange County restoration and construction company, was hired to provide on-going estimates and perform demolition. Plaintiff claimed that, in the course of the demolition process, asbestos containing material was disturbed and spread resulting in contamination throughout home. Plaintiff claimed contractor negligence and breach of contract against our client. Plaintiff sought millions against our client in general and special damages for whole home restoration and other related general damages. The jury found in complete favor of our client on all allegations and awarded zero dollars to the opposing party.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Rooftop Owners Sue Cubs Consultant for Alleged False Statements
January 24, 2014 —
Beverley BevenFlorez-CDJ STAFFA disagreement over signage potentially blocking rooftop owner’s views has stalled Wrigley Field’s proposed $300 million renovation, reported the Chicago Tribune. However, a recently lawsuit filed between the two entities regarded allegedly false statements made by Marc Ganic, a Chicago sports business consultant, published in the Chicago Sun-Times: “In the story, Ganis is quoted as saying the rooftop clubs were ‘stealing’ the Cubs product for their own profit,” according to the Chicago Tribune.
The rooftop owners claimed in the suit that “they have a contractual arrangement with the team that allows them to sell tickets to people who want bird’s-eye views of the game.” The Chicago Tribune attempted to contact Ganis for comment, but he “did not return several messages.”
The rooftop owners and the Cubs entered into a “20-year agreement in 2004 in which the rooftop owners pay the Cubs 17 percent of the team's yearly profits in exchange for unobstructed views into the ballpark,” according to ESPN. “The Cubs dispute that notion, however, contending the unobstructed views were guaranteed through the landmarking of the bleachers not with the agreement they have with the rooftop owners.”
Business president Crane Kenney explained to ESPN that the city council amended the landmarking rule for the field: “[The council has] now recognized the outfield is not a historic feature. And above a 10-foot level we can have signage. That was the big win last summer, among many. That's what the rooftops would contest.”
According to ESPN the Cubs will not start the renovation project until they have an agreement with the rooftop owners “that includes a guarantee not to sue the Cubs for breach of contract, which would delay construction.”
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Harsh New Time Limits on Construction Defect Claims
April 26, 2011 —
Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq.A recent Colorado Supreme Court decision, Smith v. Executive Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010), considerably shortens the time limit for bringing many construction defect lawsuits. Homeowners and homeowner associations risk losing the right to seek reimbursement from builders, developers and other construction professionals unless they carefully and quickly act upon discovery of evidence of any potential construction defect.
The Statute of Limitations for Construction Defect Claims
Colorado’s construction defect statute of limitations limits the time for homeowners and homeowners associations to bring lawsuits for construction defects against “construction professionals,” including developers, general contractors, builders, engineers, architects, other design professionals, inspectors and subcontractors. The statute requires homeowners and associations to file suit within two years “after the claim for relief arises.” A claim for relief “arises” when a homeowner or association discovers or reasonably should have discovered the physical manifestation of a construction defect.
The two-year time limitation applies to each construction defect separately, and will begin to run upon the appearance of a “manifestation” of a construction defect (which may include, for example, a condition as simple as a roof leak or drywall cracks), even if the homeowner or association does not know the cause of the apparent problem.
The Smith Opinion and its Effect on the Statute of Limitations
In Smith v. Executive Custom Homes, Inc., the plaintiff homeowner, Mrs. Smith, slipped on ice that had accumulated on her sidewalk because of a leaking gutter and suffered injury. When she first noticed the leak, she reported it to her property manager, who reported it to the builder. The builder attempted to repair the gutter, unbeknownst to Mrs. Smith, and she did not notice further problems until approximately one year after she first observed the leak, when she fell and suffered serious injury. She sued the builder within two years of her injury, but nearly three years after she first learned of the leak.
The Colorado Supreme Court dismissed Mrs. Smith’s claims as untimely and held that under the construction defect statute of limitations, the two-year period for suing for injuries due to construction defects begins when the homeowner first observes the physical manifestation of the defect, even if the resulting injury has not yet occurred. The court acknowledged that this ruling could result in “unfair results,” especially if a serious and unforeseeable injury occurs more than two years after the first time the homeowner noticed the problem, and as a result the victim is unable to seek redress from those responsible for the defect.
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Reprinted courtesy of Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq. of Sullan2, Sandgrund, Smith & Perczak, P.C., and they can be contacted through their web site.
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