Columbus Ohio Building Expert Directory

Pennsylvania Mechanics’ Lien “Waivers” and “Releases”: What’s the Difference?

March 19, 2015 — Thomas C. Rogers – White and Williams LLP
In the world of Pennsylvania mechanics’ liens there is much confusion about the interchangeable use of the words mechanics lien “waiver” and mechanics’ lien “release.” Many who work in the world of real estate in Pennsylvania, be they contractors, subcontractors, developers, lenders, or attorneys, use these terms interchangeably without understanding that there is a meaningful difference. Failure to understand the difference creates confusion when discussing issues and drafting documents regarding mechanics’ liens. In Pennsylvania a mechanics’ lien “waiver” is the pre-construction waiver of liens that was historically executed by a general contractor and an owner and filed with the Prothonotary in the county in which construction is located. These pre-construction lien “waivers,” assuming they were properly prepared, signed by the contractor and owner and filed in accordance with applicable law, negated the ability of that contractor and its subcontractors to file a mechanics’ lien on the subject property. These pre-construction lien “waivers” were part of every construction loan closing up through the amendments to the Pennsylvania Mechanics’ Lien Act that went into effect in 2007. Since 2007, the Mechanics’ Lien Act has been amended twice to further address those circumstances in which pre-construction lien waivers still have vitality. Except with respect to those narrow situations specifically provided for in the statute, pre-construction lien “waivers” are against public policy in Pennsylvania. Read the court decision
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Reprinted courtesy of Thomas C. Rogers, White and Williams LLP
Mr. Rogers may be contacted at rogerst@whiteandwilliams.com

Motions to Dismiss, Limitations of Liability, and More

January 23, 2023 — Christopher G. Hill - Construction Law Musings
Remember BAE Sys. Ordnance Sys. V. Fluor Fed. Sols? I examined that case on two occasions previously here at Construction Law Musings. Previously the discussions were about the mix (or lack thereof) between fraud and contract and about how careful contract drafting is key. In the most recent opinion in this ongoing litigation from March of 2022, the Court examined various motions to dismiss the Complaint and Counterclaim in the matter. As a reminder, the basic facts are as follows. The US Army Joint Munitions Command (“Army”) contracted with BAE Systems OrdnanceSystems, Inc. (“BAE”) to operate and maintain the Radford Army Ammunition Plant (“RFAAP”)under a basic ordering agreement (“BOA”). Under BOA Task Order 002, BAE contracted to replace the legacy NC facility at the RFAAP with a newer one (the “NC Project”). Initially, BAE subcontracted the NC Project to Lauren Engineers & Constructors (“Lauren”), but later terminated Lauren. Despite terminating Lauren, BAE’s timeline to complete the NC Project remained unchanged and BAE was required to use Lauren’s design for the NC Project. BAE gave interested bidders access to the Lauren design and other related documents and required the selected subcontractor to perform in accordance with the 85% complete Lauren design, that the Lauren design could be relied on for accuracy, and the selected subcontractor only had to complete the unfinished parts. Fluor Federal Solutions, LLC (“Fluor”) submitted a request for information (“RFI”) asking BAE about the standards referenced in the SOW. Fluor was unable to determine the completeness of the Lauren design but relied on BAE’s assertion that the design was 85% complete. BAE rejected Fluor’s initial bid as being too high given what BAE had already paid Lauren for its design and told Fluor to lower its bid because the design was close to complete. Fluor lowered its price and submitted another bid proposal that outlined a firm-fixed-price design/build that forecasted 32 months to complete the NC Project. BAE awarded Fluor an Undefinitized Contract Action (“UCA”) in the amount of $9 million dollars, later increased to $32 million. Under the UCA, Fluor began procuring materials and physical construction before a formal subcontract was agreed upon. On December 17, 2015, BAE and Fluor agreed to a fixed-price design and build subcontract (the “Subcontract”) in which Fluor agreed to design, construct, and partially commission the NC Project for $245,690,422.00, which included money spent already in the UCA. When this litigation began, Fluor was scheduled to complete its work by December 2020, 2.5 years beyond the originally agreed-upon completion date. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Discussion of the Discovery Rule and Tolling Statute of Limitations

February 26, 2015 — Beverley BevenFlorez-CDJ STAFF
Attorney Clay Olson analyzed a recent South Carolina appeals case that “discussed the threshold for ‘notice’ as it pertains to statute(s) of limitations in construction defect cases. At the root of this action was a 2003 forensic report obtained by the HOA which was not acted upon until 2009.” Olson presented the background of the case as well as the case progression. Olson concluded, “It is well settled that an expert’s findings, when presented to a claimant, trigger the statute of limitations as to the specific defective conditions and locale where defects are present. This case is interesting in its treatment of the initial report as a trigger of all defects in not only the main building which was subject of the 2003 report, but additional structures.” Read the court decision
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Reservation of Rights Letter Merely Citing Policy Provisions Inadequate

February 14, 2023 — Tred R. Eyerly - Insurance Law Hawaii
In an unpublished opinion, the Fourth Circuit affirmed the district court's finding that the insurers' reservation of rights letters did not provide a basis for denial of coverage. Stoneiedge At Lake Keowee Owners Ass'n Inc. v. Cincinnati Ins. Co., 2022 US. App. LEXIS 34292 (4th Dist. Dec. 13, 2022). The Stoneledge AOAO sued the general contractor Marlick Home Builders, LLC and other defendants after construction of 37 units. The complaint alleged construction defects that resulted in water intrusion and other physical damage. Marlick notified its insurers, Cincinnati Insurance Company and Builders Mutual. Various reservation of rights letter were sent by the insurers. In the underlying case, a judgment was entered against Marlick totalling approximately $1.6 million. As a judgment creditor of Marlickm, Stoneledge sued Cincinnati and Builders Mutual. The district court granted Stonelege's motion for summary judgment, primarily on the ground that the insurers failed to reserve the right to contest coverage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Insured's Remand of Bad Faith Action Granted

December 30, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court agreed remand of the insured's bad faith action to state court was appropriate. Kavanaugh v. Nat'l Union Fire Ins. Co., 2019 U.S. Dist. LEXIS 138465 (C.D. Calif. Aug. 15, 2019). The insured sued National Union and Great American Insurance Company in state court for failing to defend him in three civil actions. In the alternative, claims were brought against Gallagher Risk Management Services, Inc. and Chelsea Laing for professional negligence in failing to broker and procure adequate insurance for him. Laing acted as an "agent and/or broker and procured at least one of the policies at issue." Gallagher removed the action based on federal diversity jurisdiction. Although Laing was a citizen of California, Gallagher argued she was fraudulently joined and was a sham defendant, so her citizenship should be disregarded for purposes of diversity jurisdiction. The insured moved to remand because Laing was a proper defendant. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Harmon Towers to Be Demolished without Being Finished

October 02, 2013 — CDJ STAFF
Engineering.com looks at why the Harmon Tower in Las Vegas will be coming down at some point in the future. Construction stopped, unfinished in 2008. Taking the building down will cost about $400 million, which the building’s owner feels that the developer should pay. Inspectors concluded that the building did not meet the earthquake specifications for Las Vegas. The contractor claimed that the fault was due to the design specifications and that the supports were further weakened during destructive testing. Read the court decision
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Repair of Fractured Girders Complete at Shuttered Salesforce Transit Center

July 22, 2019 — Nadine M. Post - Engineering News-Record
The repair of two fractured girders spanning Fremont Street and the reinforcement of twin girders spanning First Street are complete at the beleaguered Salesforce Transit Center in San Francisco. Reprinted courtesy of Nadine M. Post, Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the court decision
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Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

January 04, 2021 — Christopher C. Broughton, Jones Walker LLP - ConsensusDocs
Introduction The right to offset refers to the common sense ability to reduce or eliminate your payment obligations to a party who owes you money on another contract. With offsets, common law largely tracks common sense. The right of offset is recognized by statute and court decisions in many states as well as under federal law and the U.S. Bankruptcy Code. The right to offset can also be established in the contract or subcontract. But like many things that may seem simple, the right to offset can easily become complex. This article provides an overview of the extent and limits of the right to offset varies from state to state and with federal government contracts about the extent and limits of the right of offset. Construction trust fund statutes add another layer of complications. These variations may not be obvious or intuitive, but they have a tremendous impact on your right to get paid or your right to withhold payment. Because of the variations, you must always confirm the law applicable to your contract or subcontract, which may not be where the project or you are located. Read the court decision
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Reprinted courtesy of Christopher C. Broughton, Jones Walker LLP
Mr. Broughton may be contacted at cbroughton@joneswalker.com

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