Renters Who Bought Cannot Sue for Construction Defects
October 08, 2013 —
CDJ STAFFA Wisconsin couple that leased then bought a home cannot sue the couple that built the home for construction defects. The court rejected the claims made by Niksa and Kelly Ivancevic that the sellers, Ronald and Debra Reagan, had breached contract or that the contract represented a mutual mistake.
The Ivancevics initially leased the home, with an agreement that said the house would be “delivered in clean condition and good repair, free of mold and toxic substances, suitable for habitation in compliance with all laws.” Before the purchase, no defects were found. After the purchase, the Ivancevics had problems with the air conditioning, leading to water leaks on the second floor.
The court found that the actual sales contract did not guarantee a defect-free residence. Therefore the Ivancevic’s claim of a mutual mistake, in which “both parties of a contact are unaware of the existence of a past or present fact material to their agreement” did not apply, since the presence of construction defects was not “material to their agreement.”
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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.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Beam Fracture on Closed Mississippi River Bridge Is at Least Two Years Old
May 31, 2021 —
Jim Parsons - Engineering News-RecordThe Arkansas Dept. of Transportation (ARDOT) has terminated the employee responsible for inspecting the Interstate-40 Mississippi River bridge after two-year-old drone footage revealed the presence of a tie-beam fracture that forced
last week’s emergency shutdown.
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Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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California Supreme Court Rejects Third Exception to Privette Doctrine
July 03, 2022 —
Lewis BrisboisWalnut Creek, Calif. (May 25, 2022) - In Gonzalez v. Mathis (August 19, 2021) 12 Cal. 5th 29, the California Supreme Court considered whether to create a third exception to the Privette Doctrine specific to known hazards on a worksite, when a contractor cannot remedy the hazard by taking reasonable safety precautions to protect against it.
Privette Background
Under the Privette Doctrine, the hirer of an independent contractor generally cannot be liable for injuries sustained by the independent contractor or its employees while on the job. This is due to the “strong presumption” that the hirer delegates all responsibility for workplace safety to the independent contractor. See Privette v. Superior Court (1993) 5 Cal. 4th 689. Since the Privette ruling in 1993, the California Supreme Court has identified two circumstances in which the presumption may be overcome. First, the hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury. Hooker v. Dept. of Transportation (2002) 27 Cal. 4th 198, 213. Second, a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard to the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 664. Here, in the Gonzalez case, the court considered whether a landowner could be liable for known hazards on the property.
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Lewis Brisbois
Randy Okland Honored as 2019 Intermountain Legacy Award Winner
January 06, 2020 —
Jennifer Seward - Engineering News-RecordA passion for construction is in Randy Okland’s blood. His family’s business, Salt Lake City’s Okland Construction, was founded in 1918 by his grandfather, John Okland, a Norwegian immigrant and shipbuilder. Randy swept the floors and cleaned and fueled company vehicles while working as a laborer and later as a carpenter and concrete former. After graduating from the University of Utah, Randy worked full time at Okland, eventually taking over leadership of the company from his father in 1980.
Jennifer Seward, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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California Posts Nation’s Largest Gain in Construction Jobs
March 28, 2012 —
CDJ STAFFCalifornia 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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Contractors: A Lesson on Being Friendly
April 06, 2016 —
Garret Murai – California Construction Law BlogI know.
You’re just trying to be friendly.
Don’t.
Particularly when you’re a contractor bidding on a public works project.
Those dinners at swanky restaurants, tickets to The Jersey Boys, and all expense paid trips to the Napa Valley have a way of appearing less “friendly” in hindsight, and more like bribery, or as they say, “pay to play.”
In Sweetwater Union High School District v. Gilbane Building Company, California Court of Appeals for the Fourth District, Case No. D067383 (February 24, 2016), three contractors, Gilbane Building Company (“Gilbane”), The Seville Group, Inc. (“Seville”) and Gilbane/SGI Joint Venture (“Gilbane/SGI”) (collectively “Contractors”) were sued by the Sweetwater Union School District (“District”) to void their contracts with the District and for disgorgement of all monies paid to them under Government Code section 1090 after it was discovered that the Contractors had engaged in a “pay to play” scheme involving several officials of the District.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 —
Beverley BevenFlorez CDJ STAFFThe Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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