General Contractor/Developer May Not Rely on the Homeowner Protection Act to Avoid a Waiver of Consequential Damages in an AIA Contract
August 04, 2011 —
Higgins, Hopkins, McLain & Roswell, LLCRecently, in Caribou Ridge Homes, LLC v. Zero Energy, LLC, et al., Case No. 10CV1094, Boulder County District Court Judge Ingrid S. Bakke entered a ruling and order on the Plaintiff’s Motion for Determination of Question of Law Pursuant to C.R.C.P. 56(h) on Issue of Damages. The Order found that the Plaintiff was not a homeowner intended to be protected by the Homeowner Protection Act (the “HPA”) and thus could not pursue its claims for consequential damages against Defendant.
By way of background, on June 18, 2008, Plaintiff Caribou Ridge Homes, LLC (“Caribou”) entered into a Standard Form Agreement Between Owner and Contractor AIA Document A114-2001 (the “Contract”) with Defendant Zero Energy, LLC (“Zero Energy”). Plaintiff hired Zero Energy to serve as a general contractor for the construction of a single-family home in the Caribou Ridge subdivision in Nederland, Colorado. A provision in the contract contained a mutual waiver of consequential damages (“Waiver”).
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Reprinted courtesy Higgins, Hopkins, McLain & Roswell, LLC
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William Lyon to Acquire RSI Communities
February 22, 2018 —
Dave Suggs - CDJ STAFFAccording to the article “William Lyon Agrees to Buy RSI Communities $460 million deal plants Lyon in Texas and adds to Inland Empire land holdings” published on the website Builder, the Newport Beach home builder is purchasing the Southern California and Texas home builder. This will be Lyon Homes’ first venture in the state of Texas.
RSI Communities works within both San Antonio and Austin, Texas as well as Southern California and the Inland Empire. It was founded by Todd Palmaer, a home building expert and Ron Simon, a building products expert and Newport Beach businessman. First time home buyers have been RSI’s main target.
President and CEO of RSI, Tod Palmaer is optimistic about the acquisition “We are delighted to have our company join the William Lyon Homes organization. We have a great deal of confidence in the William Lyon Homes platform and its executive management team, and believe that its acquisition of RSI Communities will add to Lyon’s continued success in its current and new markets.”
Pat Donahue who has almost 30 years of experience in home building, will serve as President to the Inland Empire Division. John Bohnen, RSI’s present Chief Operating Officer, will be the regional president in Texas. Mr. Bohnen has previously held executive positions with numerous home builders. William Lyon’s president and CEO Mark R. Zaist is excited about adding RSI’s key players to their team, and had this to say about the purchase. “The acquisition of RSI represents our most significant acquisition since our entry into Portland and Seattle with the Polygon Northwest Homes acquisition in 2014 and furthers our strategy of building in the strongest markets in the Western U.S., while also strengthening our pipeline in Southern California, as we continue our mission of being the premier Western Regional home builder.”
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Location, Location, Location—Even in Construction Liens
October 28, 2015 —
Craig Martin – Construction Contractor AdvisorWe all know the importance of filing a construction lien within 120 days of your last work. Nebraska Construction Lien Act, § 52-137. But, equally, if not more important is filing the construction lien on the correct property.
Often times on a construction project, the exact address of the project may not be known. And, if there are a few buildings going up on the same general site, it is difficult to determine which property or building address you are working on.
Sometimes you can look at the contract. For example, the AIA family of documents lists the address on the first page. But, what if the wrong address is listed? What if the wrong owner is listed?
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
BWB&O Senior Associate Kyle Riddles and Associate Alexandria Heins Obtain a Trial Victory in a Multi-Million Dollar Case!
May 01, 2023 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is excited to share that Newport Beach Senior Associate Kyle Riddles and Associate Alexandria Heins obtained a significant trial victory on behalf of their client in a multi-million dollar dispute stemming from the construction of a commercial expansion project at a beachfront resort.
The owner of the resort alleged that the general contractor was responsible for a significant delay to the completion of the expansion project. The general contractor filed a cross-complaint against BWB&O’s client in an attempt to pass through the delay claims to BWB&O’s client. The general contractor’s delay expert alleged a total 441 days of delay to the completion of the project. A significant portion of the delay was apportioned to BWB&O’s client, for which it faced substantial contractual damages. Senior Associate Kyle Riddles expertly crossed key witnesses and obtained testimony that was extremely favorable to its client.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Is Your Business Insured for the Coronavirus?
March 16, 2020 —
J. Kelby Van Patten & Jared De Jong - Payne & FearsHow bad will the pandemic get? How much will it spread in the United States? Will we develop a vaccine in time to do any good?
As insurance lawyers, we have no idea. But we can help you figure out whether your business is insured for the coronavirus risks that keep business owners up at night.
Risk 1: An outbreak forces my business to close until the outbreak ends. Are my financial business losses covered?
Maybe. Many commercial property policies provide “business interruption coverage” which may apply.
This coverage typically requires that:
(i) Your business is shut down. If your business actually closes for a period of time, you may meet this requirement. However, you wouldn’t meet it if your business slows because half of your staff is home sick.
(ii) The shutdown is necessary. “Necessary” means something different than “desirable” or “prudent.” Whether a shutdown is necessary depends on the facts. If it is physically or legally impossible to enter your building, then closure is necessary. But if the government issues a public advisory recommending that businesses close, and you voluntarily comply, that’s a different story.
(iii) The shutdown is caused by physical damage to your property. Is a viral outbreak “damage” to your property? There’s not a clear answer. On the one hand, courts have found that hazardous contamination of a building constitutes property damage to the building. For example, asbestos incorporated into a building constitutes property damage to the building under a commercial general liability policy. Environmental contamination can also constitute property damage to the contaminated property. Policyholders whose businesses close during an outbreak will argue that property contaminated by the virus satisfies the “physical damage to property” requirement. On the other hand, insurers may argue that the real cause of the shutdown is not the contaminated building surfaces, but the need for social distancing in a neighborhood with many contagious people. Coverage will depend on the policy language and the details of the shutdown.
Reprinted courtesy of
J. Kelby Van Patten, Payne & Fears and
Jared De Jong, Payne & Fears
Mr. Van may be contacted at kvp@paynefears.com
Mr. Jong may be contacted at jdj@paynefears.com
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U.S. Homebuilder Confidence Rises Most in Almost a Year
June 18, 2014 —
Shobhana Chandra – BloombergConfidence among U.S. homebuilders rose in June by the most in almost a year, a sign the residential real estate market is stabilizing after reeling from severe winter weather earlier this year.
The National Association of Home Builders/Wells Fargo sentiment gauge climbed to 49 this month from 45 in May, the biggest gain since July 2013, figures from the Washington-based group showed today. Readings greater than 50 mean more respondents report good market conditions. The median forecast in a Bloomberg survey called for 47.
Current sales, the outlook for future purchases and prospective buyer traffic all improved this month, today’s figures showed, indicating mortgage rates close to historically low levels and a strengthening job market are sustaining demand. Improving sentiment comes as the world’s largest economy picks up this quarter following a contraction in the first three months of 2014.
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Shobhana Chandra – BloombergMs. Chandra may be contacted at
schandra1@bloomberg.net
Court Slams the Privette Door on Independent Contractor’s Bodily Injury Claim
May 06, 2019 —
Brett G. Moore, Michael C. Parme, Lindsey N. Ursua & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Johnson v. The Raytheon Company, Inc., Case No. B281411 (2019) WL 1090217, plaintiff Laurence Johnson (Johnson) was a maintenance engineer employed by an independent contractor that provided control room staff to defendant Raytheon Company, Inc. (“Raytheon”). Johnson was monitoring the computers in the control room when he received low water level alarms pertaining to the water cooling towers. Johnson went to the cooling tower wall in order to look over the wall and verify the water level. Johnson saw the upper half of an extension ladder leaning against the cooling tower’s wall. The ladder had a warning sign which said, “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Despite these warnings, Johnson used the ladder. As he was climbing the ladder it slid out causing him to fall and suffer injuries.
Johnson sued Raytheon, the hirer of the independent contractor, arguing the ladder, among other things, was unsafe and lead to Johnson’s injuries. Johnson believed that Raytheon’s course of conduct of leaving a platform ladder (as opposed to the extension ladder) at the wall constituted an implied agreement to always have one present, on which the independent contractor’s employees relied. Johnson further argued that Raytheon was negligent in providing a dangerous extension ladder, as opposed to a platform ladder, at the wall on the night of the accident.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Brett G. Moore,
Michael C. Parme,
Lindsey N. Ursua and
Lawrence S. Zucker II
Mr. Moore may be contacted at bmoore@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
Ms. Lindsey may be contacted at lursua@hbblaw.com
Mr. Lawrence may be contacted at lzucker@hbblaw.com
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The Cost of Overlooking Jury Fees
February 07, 2022 —
Nicholas B. Brummel, Arezoo Jamshidi & Lawrence S. Zucker II - Haight Brown & BonesteelOn January 21, 2022, the Court of Appeal, Second Appellate District, Division Two (Los Angeles), certified for publication a 2-1 decision that serves as an important reminder to California attorneys to post jury fees in a timely manner and to use appropriate channels and consult with appellate counsel in seeking appellate relief from contested rulings.
In TriCoast Builders, Inc. v. Nathaniel Fonnegra, (B303300, Jan. 21, 2022), a construction defect dispute, the trial court set a jury trial at defendant’s request. However, on the day trial was set, defendant waived jury trial. Plaintiff objected and made an oral request for jury trial. The trial court denied the request finding that plaintiff waived its right to a jury trial by failing to timely post jury fees. The matter proceeded to a bench trial, and the court ruled in favor of defendant. Plaintiff appealed, having failed to seek a writ of mandate, which the appellate court noted “is the proper remedy to secure a jury trial allegedly wrongfully withheld.”
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Nicholas B. Brummel, Haight Brown & Bonesteel,
Arezoo Jamshidi, Haight Brown & Bonesteel and
Lawrence S. Zucker II, Haight Brown & Bonesteel
Mr. Brummel may be contacted at nbrummel@hbblaw.com
Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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