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Keep it Simple with Nunn-Agreements in Colorado

June 28, 2021 — Jean Meyer - Colorado Construction Litigation
On May 24, 2021, the Colorado Supreme Court published its decision in Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass'n.[1] There, the Colorado Supreme Court was tasked with answering whether an insurer, who is defending its insured under a reservation of rights, is entitled to intervene as of right under C.R.C.P. 24(a)(2) where the insured enters into a Nunn agreement with a third-party claimant, but rather than entering into a stipulated judgment, agrees with the third party to proceed via an uncontested trial to determine liability and damages. Interestingly, however, while the Court ultimately answered the above question in the negative, the real lesson from the Colorado Supreme Court’s decision is that Colorado litigants should not seek a trial court’s blessing as to liability and damages through non-adversarial proceedings when using Nunn-Agreements. Or, as articulated in Justice Carlos Samour’s vociferous dissenting opinion, Colorado litigants desiring to enter into a Nunn-Agreement should not proceed with a non-adversarial hearing, as doing so is “offensive to the dignity of the courts,” constitutes a “bogus,” “faux,” “sham” and “counterfeit” proceeding, and the hearing provides “zero benefit.” By way of background, the case arrived in front of the Colorado Supreme Court based on the following fact pattern. A homeowner association (Bolt Factory Lofts Owners Association, Inc.) (“Association”) brought construction defect claims against a variety of prime contractors and those contractors subsequently brought third-party construction defect claims against subcontractors. One of the prime contractors assigned their claims against a subcontractor by the name Sierra Glass Co., Inc. (“Sierra”) to the Association. The other claims between the additional parties settled. On the eve of trial involving only the Association’s assigned claims against Sierra, the Association made a settlement demand to Sierra for $1.9 million. Sierra asked its insurance carrier, Auto-Owners Insurance, Co. (“AOIC”), which had been defending Sierra under a reservation of rights letter, to settle the case for that amount, but AOIC refused. This prompted Sierra to enter into a “Nunn-Agreement” with the Association whereby the case would proceed to trial, Sierra would refrain from offering a defense at trial, the Association would not pursue any recovery against Sierra for the judgment, and Sierra would assign any insurance bad faith claims it may have had against AOIC to the Association. Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

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Repairs to Hurricane-damaged Sanibel Causeway Completed in 105 Days

February 12, 2024 — Marigo Farr - Engineering News-Record
Permanent repairs to the roadway portion of the Sanibel Causeway are substantially complete one year and four months after more than 6,000 Sanibel Island residents lost access to the mainland in the wake of Hurricane Ian. The Superior Construction and The De Moya Group joint-venture team, responsible for the work, say that all travel lanes are now permanently open to the island off Florida's southwest coast near Fort Myers. Reprinted courtesy of Marigo Farr, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River

May 01, 2019 — Anthony B. Cavender - Gravel2Gavel
On March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.” The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Multifamily Building Pushes New Jersey to Best Year since 2007

December 04, 2013 — CDJ STAFF
One project that might be seen as typical for New Jersey is Fair Lawn Promenade, which is being built at the former site of a Kodak film processing plant. The development will revitalize an existing area, rather than send people further from the cities into the New Jersey countryside. The development is within walking distance of a commuter rail station. This project and ones like it have pushed New Jersey to a 37% increase in residential building over last year. Almost 60% of this year’s residential building in New Jersey has been multifamily. And it’s likely to stay that way for a while, according to Patrick O’Keefe, an economist at CohnReznick. He says that millennials have less of a “commitment to the American dream of homeownership.” Read the court decision
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Why Should Businesses Seek Legal Help Early On?

December 03, 2024 — Scott L. Baker - Los Angeles Litigation Blog
Most business owners are natural problem solvers. They assess the issue that lies before them and develop a strategy to overcome it. It’s a critical mindset to have, but do all business owners have the skillset to solve every issue? While it is understandable that business owners may want to attempt to resolve issues on their own, it is invariably beneficial to obtain guidance for legal issues earlier rather than later. 3 Reasons to Consult an Attorney Sooner than Later Many people might consider working with an attorney to be a last resort. Typically, this is not the case; rather, getting knowledgeable legal counsel sooner than later can help business owners because:

1. It’s Cheaper: Early legal intervention can often prevent disputes from leading to litigation, which can be expensive. Working with an attorney to resolve a conflict before it escalates into a larger issue is often a good business decision and wise investment.

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Reprinted courtesy of Scott L. Baker, Baker & Associates
Mr. Baker may be contacted at slb@bakerslaw.com

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A New Statute of Limitations on Construction Claims by VA State Agencies?

March 27, 2019 — Christopher G. Hill - Construction Law Musings
I have discussed the Hensel Phelps case and the potential issues caused by both poorly drafted indemnity clauses and the lack of a statute of limitations applicable to the Commonwealth of Virginia and its agencies in 2017. New legislation (supported by various contractor groups including my friends at the AGC of Virginia) has been proposed for the 2019 General Assembly session that seeks to address at least part of this issue. While the indemnity provisions of your construction contracts can be addressed by careful drafting with the help of an experienced construction attorney, the proposed legislation (found in HB1667) seeks to address the statute of limitations issue. The proposed legislation is described as follows:

Provides that no action may be brought by a public body on any construction contract, including construction management and design-build contracts, unless such action is brought within five years after substantial completion of the work on the project and that no action may be brought by a public body on a warranty or guarantee in such construction contract more than one year from the breach of that warranty, but in no event more than one year after the expiration of such warranty or guarantee. The bill also limits the time frame during which a public body, other than the Department of Transportation, may bring an action against a surety on a performance bond to within one year after substantial completion of the work on the project.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Insured's Complaint for Breach of Contract and Bad Faith Adequately Pleads Consequential Damages

March 27, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court overturned the trial court's dismissal of the insured's complaint seeking consequential damages. D.K. Prop. Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh v, Pa., 2019 N.Y. App. Div. LEXIS 329 (N.Y. App. Div. Jan. 17, 2019). The insured's building began to shift and exhibit structural damage, including cracks, after construction began in an adjoining building. The insured submitted a claim under its commercial insurance policy. The insurer did not pay the claim, nor did it disclaim coverage. The insured sued, alleging breach of contract for failure to pay covered losses under the policy. The second cause of action was for breach of the implied covenant of good faith and fair dealing. The complaint also requested consequential damages in connection with each cause of action. The trial court granted the insurer's motion to dismiss the claim for consequential damages. 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

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Renovation Contractors: Be Careful How You Disclose Your Projects

December 09, 2011 — Derek J. Lindenschmidt, Colorado Construction Litigation

In Palu and Beyer v. Toney, 2011 WL 2560249 (Bankr. D. Colo.), the United States Bankruptcy Court for the District of Colorado determined that a Colorado District Court order granting summary judgment in favor of plaintiff home buyers was binding on the Bankruptcy Court in the defendant contractor’s bankruptcy proceeding based on issue preclusion.

Pertinent to this column is the subject matter of the summary judgment motion: Colorado’s Seller’s Property Disclosure (Form LC-18-5-04). In the underlying state court action, the plaintiff home buyers filed a motion for summary judgment contending that the defendant contractor represented to them, through the Seller’s Property Disclosure, that there were no present or past conditions involving moisture or water problems, roof problems or leaks, skylight problems, or gutter downspout problems.

In granting plaintiffs’ motion, the state court determined that the defendant contractor made these representations on her Seller’s Property Disclosure despite witnessing water leaking from the skylight onto the floor and being aware of repairs to the roof, skylight, and interior drywall prior to the sale of the property.

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Reprinted courtesy of Derek J. Lindenschmidt of Higgins, Hopkins, McClain & Roswell, LLP. Mr. Lindenschmidt can be contacted at lindenschmidt@hhmrlaw.com

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