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DIRECTORY AND CAPABILITIES

Construction Defect Not a RICO Case, Says Court

August 04, 2011 — CDJ STAFF

The US District Court of North Carolina has rejected an attempt by a homeowner to restart her construction defect claim by turning it into a RICO lawsuit. Linda Sharp, the plaintiff in the case of Sharp v. Town of Kitty Hawk, attempted to amend a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) and argued that her case belonged in the federal courts.

Ms. Sharp sued in November, 2010 claiming construction defects. She sued in federal court, although the court noted that as she and most of the defendants are citizens of North Carolina, the state court would have been the appropriate jurisdiction. Further, the court noted that one federal claim Sharp made was dismissed with prejudice, leaving only the state law claims. These the court dismissed without prejudice, declining to exercise jurisdiction over North Carolina law.



After the dismissal, Ms. Sharp attempted to amend her complaint after the deadline. To do so, according to the court, she would be required to obtain consent from defendants or leave of the court. She did neither.



In his opinion, Judge W. Earl Britt rejected her motion for leave to amend. He also granted the defendants’ motion to dismiss. The clerk was directed to close the case.



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Suppliers of Inherently Dangerous Raw Materials Remain Excluded from the Protections of the Component Parts Doctrine

December 02, 2015 — Leah B. Mason & Michael J. Worth – Haight Brown & Bonesteel, LLP
In Brady v. Calsol, Inc. 2015 No. B262028, the California Court of Appeal, Second District, reversed summary judgment for a raw materials supplier where there was a triable issue of fact as to whether the benzene levels contained in the supplier’s mineral spirits could have caused plaintiffs’ leukemia. Plaintiffs were mechanics Ernest Brady and David Gibbs, who used Safety-Kleen solvent to degrease automotive parts. Brady and Gibbs were diagnosed with leukemia allegedly caused by exposure to Safety-Kleen solvent during the course of their employment. In 2008, Plaintiffs sued Calsol, Inc., a distributor of mineral spirits for the ultimate manufacturer, Safety-Kleen Systems, Inc. Plaintiffs asserted negligence and strict products liability claims. Specifically, plaintiffs alleged that benzene, a carcinogen found in mineral spirits, caused their leukemia. Benzene is only carcinogenic to humans at certain levels. The parties dispute the levels of benzene found in the mineral spirits supplied to Safety-Kleen. Calsol contended the benzene levels were present only in low concentrations. Plaintiffs alleged the benzene levels were capable of causing injury. Reprinted courtesy of Leah B. Mason, Haight Brown & Bonesteel LLP and Michael J. Worth, Haight Brown & Bonesteel LLP Ms. Mason may be contacted at lmason@hbblaw.com Mr. Worth may be contacted at mworth@hbblaw.com Read the court decision
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Ohio: Are Construction Defects Covered in Insurance Policies?

January 09, 2015 — Beverley BevenFlorez-CDJ STAFF
Amanda M. Leffler of Brouse McDowell analyzed Ohio’s 2012 Supreme Court case Westfield Ins. Co. v. Custom Agri Sys., Inc., which ruled that “’[c]laims of defective construction or workmanship brought by a property owner are not claims for ‘property damage’ caused by an ‘occurrence’ under a commercial general liability policy.’” Leffler stated that the Ohio Supreme Court decision wasn’t as “sweeping” as it might at first appear: “Rather, the Ohio Supreme Court adopted the rule that construction defects are covered ‘occurrences’ within the meaning of commercial general liability (‘CGL’) policies, but only to the extent that property other than the policyholder’s own work is damaged.“ Read the court decision
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Philadelphia Proposed Best Value Procurement Bill

December 08, 2016 — Wally Zimolong – Supplemental Conditions
An opinion piece in today’s Philadelphia Inquirer concerning proposed legislation that would change the way the City of Philadelphia awards public construction projects is causing quite a stir. The article concerns legislation that would allow the City to award public construction contracts based on a “best value” approach rather than the current requirement that the contract be awarded to the lowest responsible and responsive bidder. The author worries that by removing the current objective criteria and replacing it with subjective ones, contracts can be steered to politically favored contractors. The author cites the recent no-bid contract awarded to a law firm run by the friend of Mayor Jim Kenney as an example of the chaos would ensue if this bill was passed. Considering that the Bill’s sponsor, Bobby Hennon, is under FBI investigation, and some of the Mayor’s biggest supporters are as well, the author has ever right to be concerned. However, article comes up short in explaining what the Bill says and what best value procurement, if adopted, would mean for public construction work in Philadelphia. First, the Bill that Councilman Hennon is proposing is actually a Bill that would make the best value procurement question a ballot question next November. In other words, the Bill, if passed, would but to a City wide vote the question of whether the City should change it procurement practices to permit the best value approach to be used in addition to the low bid approach that is current used. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Manhattan Home Prices Top Pre-Crisis Record on Luxury Deals

January 06, 2016 — Oshrat Carmiel – Bloomberg
Manhattan home prices surged to a record in the fourth quarter, propelled by closings of luxury deals in new developments that were agreed to years ago, when construction was just starting on many of the buildings. The median price of all completed co-op and condominium purchases in the borough jumped 17 percent from a year earlier to $1.15 million, the highest in 27 years of record-keeping, according to a report Tuesday by appraiser Miller Samuel Inc. and brokerage Douglas Elliman Real Estate. That tops the previous peak of $1.03 million, set in the second quarter of 2008, before the collapse of Lehman Brothers Holdings Inc. triggered a plunge in property prices and a near standstill in sales. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg

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Property Insurance Exclusion for Constant or Repeated Leakage of Water

March 14, 2018 — David Adelstein – Florida Construction Legal Updates
A property insurance policy, no different than any insurance policy, contains exclusions for events that are NOT covered under the terms of the policy. One such common exclusion in a property insurance policy is an exclusion for damages caused by "constant or repeated seepage or leakage of water…over a period of 14 or more days." The application of this exclusion was discussed in the recent opinion of Hicks v. American Integrity Ins. Co. of Florida, 43 Fla. L. Weekly D446a (Fla. 5th DCA 2018). In this case, while the insured was out of town, the water line to his refrigerator started to leak. When the insured return home over a month later, the supply line was discharging almost a thousand gallons of water per day. The insured submitted a property insurance claim. The property insurer engaged a consultant that opined (likely, correctly) that the water line had been leaking for at least five weeks. Based on the above-mentioned exclusion, i.e., that water had been constantly leaking for over a period of 14 days, the insurer denied coverage. This denial led to the inevitable coverage dispute. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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The Secret to Success Is Doing Things a Little Bit Differently

November 16, 2020 — Charlie Kimmel - Construction Executive
Throughout the 1960s and 1970s, Rick Barry made his mark on the world of college and professional basketball. He was a skilled small forward who averaged 37.4 points per game during his senior year at the University of Miami, and he was the second overall pick in the 1965 NBA draft. But he’s best remembered as a prolific free-throw shooter: he led the NBA in free-throw percentage for several consecutive years. When he retired in 1980, his free-throw percentage (.900) was the highest in NBA history. So what was the secret to his success? He did things a little bit differently. While the vast majority of basketball players shoot overhand free throws, Barry was famous for his unorthodox underhanded shots. This technique was not only incredibly effective, but it also set him apart as a player and contributed to his popularity. Construction companies can learn a lot from Barry’s strategy of doing things a little bit differently to achieve success. Most companies don’t need to worry about their employees’ free-throw techniques. But all of them need to set themselves apart from their competition and establish strong reputations in today’s highly competitive market. Reprinted courtesy of Charlie Kimmel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Manhattan Townhouse Sells for a Record $79.5 Million

April 05, 2017 — Oshrat Carmiel - Bloomberg
A home on Manhattan’s Upper East Side sold for $79.5 million, according to property records made public Wednesday, making it the highest price ever paid for a townhouse in the borough. The 20,500-square-foot (1,905-square-meter) property, at 19 E. 64th St., had been owned by the Wildenstein family, billionaire art dealers whose gallery was located at the site for more than 80 years. The previous record for a Manhattan townhouse was the $53 million paid for 4 E. 75th St., in 2006, according to appraiser Miller Samuel Inc. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Mr. Carmiel may be followed on Twitter @OshratCarmiel

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