Florida Courts Say that Developers Are Responsible for Flooding
July 31, 2013 —
CDJ STAFFThe Florida Supreme Court recently handed down a decision that developers can be held responsible if problems with infrastructure lead to damage to homes. Aaron Kase, writing on Lawyers.com, reviews the case, noting that the court said that “habitability of a home is impacted by stagnant standing water and the erosion of soil upon which the home is constructed. One need not wait until floodwaters inundate the home or the erosion swallows the residential structure to find protection.”
Kase notes that a trial court “sided with the developers’ argument that because the water infrastructure didn’t immediately support the houses, implied warranties of fitness and habitability shouldn’t apply and they shouldn’t be liable.” This was overturned at the district court, with the Supreme Court upholding the district court decision. Lisa Wilcox of Wilcox Law notes that “the Supreme Court determined that the warranty of habitability should be applied to protect home buyers from defects in the construction of these essential services even though they are not part of a home’s completed structure.”
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California Supreme Court Upholds Precondemnation Procedures
September 22, 2016 —
Patrick J. Paul – Snell & Wilmer Real Estate Litigation BlogOn July 21, 2016, the California Supreme Court in Property Reserve v. Superior Court upheld the state’s precondemnation entry and testing statutes provided they were reformed to allow impacted property owners the ability to have a jury trial to determine damages associated with such entry and testing.
The California Department of Water Resources (DWR) sought to construct water conveyance facilities that would require significant property condemnation. As part of this process, DWR further sought to investigate the environmental and geological suitability of more than 150 private properties considered for the conveyance route.
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Patrick J. Paul, Snell & Wilmer Mr. Paul may be contacted at
ppaul@swlaw.com
Why Insurers and Their Attorneys Need to Pay Close Attention to Their Discovery Burden in Washington
March 28, 2018 —
Neal Philip – Insurance Law BlogAs previously reported in this blog, Washington case law generally affords insureds a broad right to the discovery of claim file materials, including information that should be protected from disclosure by attorney/client privilege or the work product doctrine.
Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P. 3d 239 (2013). The discovery pitfalls created by
Cedell were on full display in a recent Western District of Washington decision that granted an insured’s motion to compel production of work product and attorney/client communications from an insurer’s claims file.
Westridge Townhomes Owners Ass’n v. Great American Assur. Co., 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. February 21, 2018)
The background facts are somewhat unclear, but it appears that the insured in this case made a claim for coverage under two insurance policies and there was an allegedly inadequate response from the insurers. The insured sued its insurers for coverage in 2016 before the insurers issued a declination of coverage letter. The two insurers retained the same attorney to represent them, and that attorney subsequently wrote a declination letter on behalf of the insurers, which was sent to the insured on April 12, 2017. The insured ultimately sought production of the entire claim file, which had not been split between the claim investigation and the coverage litigation. The insurers argued, among other things, that the insured was not entitled to anything after the litigation commenced in 2016 on work product grounds, and certainly was not entitled to communications with their attorney.
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Neal Philip, Gordon, Reese, Scully, & MansukhaniMr. Philip may be contacted at
nphilip@grsm.com
Does the Miller Act Trump Subcontract Dispute Provisions?
May 16, 2018 —
Christopher M. Horton - Smith CurrieAll general contractors performing public building or public works contracts with the federal government must be familiar with the Miller Act. It is a requirement for doing business with the federal government. Pursuant to the Miller Act, a general contractor entering into a public building or public works contract with the federal government must furnish a payment bond in an amount equal to the contract price, unless the contracting officer determines that it is impractical to obtain a bond in that amount and specifies an alternative bond amount.
Miller Act payment bonds guarantee payment to certain subcontractors and suppliers supplying labor and materials to contractors or subcontractors engaged in the construction. As a result, subcontractors have an avenue of relief should they not get paid for work done on the project. Specifically, subcontractors have a right to bring an action against the surety within 90-days after the date on which the person did or performed the last labor or furnished or supplied the last of material for which the claim is made. Any such action must be brought no later than one year after the date on which the person did or performed the last labor or furnished or supplied the last of material. 40 United States Code § 3133.
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Christopher M. Horton, Smith CurrieMr. Horton may be contacted at
cmhorton@smithcurrie.com
Minimum Wage on Federal Construction Projects is $10.10
November 26, 2014 —
Craig Martin – Construction Contractor AdvisorThe Department of Labor issued its final regulations to implement President Obama’s Executive Order raising the minimum wage to $10.10 per hour for workers on federal construction projects. The new minimum wage will not be effective until January 1, 2015, and will apply to most workers and most federal projects.
Covered Contracts
Executive Order 13658 applies to four major categories of contractual agreements:
- procurement contracts for construction covered by the Davis-Bacon Act (DBA) that exceed $2,000;
- service contracts covered by the Service Contract Act (SCA) that exceed $2,500;
- concessions contracts, including any concessions contract excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b); and
- contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Tom Newmeyer Elected Director At Large to the 2017 Orange County Bar Association Board of Directors
October 20, 2016 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – OCTOBER 17, 2016 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that co-founding partner Tom Newmeyer has been elected Director at Large to the 2017 Orange County Bar Association Board of Directors. Newmeyer was elected to the Board for a three-year term beginning January 2017 and will be installed during the OCBA Judges’ Night & Annual Meeting in January along with the 2017 Officers and other Board members.
“It’s an honor to be selected by my fellow OCBA members to represent their interests as a Board member,” said Tom Newmeyer. “As Director at Large, I will do my utmost to preserve and enhance the OCBA’s commitment to the members it serves.”
Tom Newmeyer is one of the founding partners of Newmeyer and Dillion LLP, which has grown from three attorneys in 1984 to over 70 lawyers in Newport Beach and Walnut Creek, California and Las Vegas, Nevada. Newmeyer has an active trial and appellate practice covering all areas of business litigation, including unfair competition, trade secrets, contract disputes, corporate and partnership dissolutions, trusts and estates, and labor and employment. He has extensive experience in representing clients in diverse areas including “green” technologies, subprime mortgages, internet and computer software, as well as real estate.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com
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GRSM Multi-Office Team Secures Dismissal of Claims for Global Paint and Coatings Manufacturer Under the Federal Hazardous Substances Act
February 03, 2025 —
Gordon Rees Scully Mansukhani, LLPPhiladelphia Partners Ty Havey and Cathy Slavin, Sacramento Senior Counsel Jennifer Paez, and Associate Erica Briggs successfully defended a leading global manufacturer of premium paint and coating products in a high-stakes case brought under the Federal Hazardous Substances Act (FHSA), 15 U.S.C. § 1261 et seq. On November 4, 2024, the United States District Court for the Northern District of California granted summary judgment and dismissed all claims against the firm’s client.
The case, brought by a subrogating insurance carrier and its policyholders—a vineyard and winery—arose from a total loss structure fire in Sonoma County. The plaintiffs alleged that discarded rags soaked with the client’s wood stain product spontaneously combusted due to inadequate labeling. The GRSM team denied the spontaneous combustion claim and argued that the FHSA, which governs product labeling for hazardous substances, preempted plaintiffs’ claims for additional warnings about spontaneous combustion.
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Gordon Rees Scully Mansukhani, LLP
Measure Of Damages for Breach of Construction Contract
October 18, 2021 —
David Adelstein - Florida Construction Legal UpdatesHow do you determine damages for a breach of a construction contract? If you are interested in pursing a breach of a construction contract action, this is something you NEED TO KNOW!
The recent Fourth District Court of Appeal’s decision in Cano, Inc. v. Judet, 46 Fla. L. Weekly D2083b (Fla. 4th DCA 201) explains:
Where a contractor breaches a construction contract, and the owner sues for breach of contract and the cost to complete, the measure of damages is the difference between the contract price and the reasonable cost to perform the contract. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1039-40 (Fla. 1982). In Grossman, the supreme court adopted subsection 346(1)(a) of the Restatement (First) of Contracts (1932), which it concluded was “designed to restore the injured party to the condition he would have been in if the contract had been performed.” Id. at 1039. In other words, the owner will obtain the benefit of his bargain [and this is known as benefit of the bargain damages]. But where there is a total breach of the contract as opposed to a partial breach, an injured party may elect to treat the contract as void and seek damages that will restore him to the position that he was in prior to entering into the contract or the party may seek the benefit of his bargain. See McCray v. Murray, 423 So. 2d 559, 561 (Fla. 1st DCA 1982).
In Judet, an owner entered into a fixed price contract with a contractor to repair damage from a lightning strike. The contract amount was $300,000 payable in $30,000 installments. A few months after the contractor commenced performance, the owner terminated the contractor because the owner learned the contractor had not obtained required electrical and plumbing permits. At this time, the owner had paid the contractor $90,000. The contractor recorded a $40,000 lien for an amount it claimed it was owed and filed a lawsuit to foreclose its construction lien. The owner counter-sued the contractor to recover a claimed over-payment and a disgorgement of monies for unpermitted work. The owner was NOT claiming benefit of the bargain damages, but rather, damages for the contractor’s total breach “to restore him to the position that he was in prior to entering into the contract.”
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
