Seattle Washington Building Expert Directory

Forum Selection Provisions Are Not to Be Overlooked…Even On Federal Projects

September 16, 2024 — David Adelstein - Florida Construction Legal Updates
Forum selection provisions are NOT to be overlooked. Ever. Treat them seriously. Even on federal projects where there is a Miller Act payment bond. Consider forum selection provisions on the front end when negotiating your contract. In a recent opinion, U.S. f/u/b/o Timberline Construction Group, LLC vs. Aptim Federal Services, LLC, 2024 WL 3597164 (M.D.Fla. 2024), a joint venture prime contractor was hired by the federal government to build a temporary housing site. The joint venture prime contractor obtained a Miller Act payment bond. The joint venture then entered into a subcontract with one of its joint venture members and the member-subcontractor then engaged a sub-subcontractor. The sub-subcontractor claimed it was owed $3.5 Million and sued the member-subcontractor, as well as the prime contractor’s Miller Act payment bond, in the Middle District of Florida. The member-subcontractor and the Miller Act payment bond sureties moved to transfer venue to the Middle District of Louisiana pursuant to a forum selection clause in the contract between the sub-subcontractor and the member-subcontractor. The contract provided that the exclusive venue would be a United States District Court located in Louisiana. Forum selection provisions are analyzed in federal court under 28 U.S.C. 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” U.S. f/u/b/o Timberline, supra at *2. A forum selection provision is presumptively valid and given controlling weight. Id. (quotations and citations omitted). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Depreciation of Labor in Calculating Actual Cash Value Against Public Policy

February 16, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insurer's depreciation of labor in the calculation of actual cash value was found to be against Arkansas public policy. Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. LEXIS 460 (Ark. Dec. 10, 2015). Shelter Mutual's policy provided that it would pay the insured "the actual cash value of all the damaged parts of the covered property." "Actual cash value" was defined as "total restoration cost less depreciation." The policy explained, "When calculating depreciation, we will include the depreciation of the materials, the labor, and the tax attributable to each party which must be replaced to allow for replacement of the damaged part, whether or not that part is damaged." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

New Law Impacting Florida’s Statute of Repose

June 29, 2017 — Meredith N. Reynolds & K. Stefan Chin – Peckar & Abramson, P.C.
On June 14, 2017, Governor Scott signed House Bill 377 into law, clarifying that Florida’s ten-year Statute of Repose commences either when the work is completed or when final payment becomes due, whichever is latest. The new law resolves a problem for contractors created by a recent Florida court ruling that held the Statute of Repose to commence as late as when the owner made final payment. The applicable amendments to Florida Statute Section 95.11 take effect on July 1, 2017 and apply to all causes of action that accrue on or after that date. Perhaps the most critical component of a construction professional’s risk management program is the length of time that it is liable for the work performed on a project. While contractual warranty periods typically run one or two years from substantial completion, the true length of a contractor’s post-completion obligation is measured by the “Statute of Repose,” which establishes the period of time following the completion of construction that a lawsuit can be filed for construction defects. Reprinted courtesy of Meredith N. Reynolds, Peckar & Abramson, P.C. and K. Stefan Chin, Peckar & Abramson, P.C. Ms. Reynolds may be contacted at mreynolds@pecklaw.com Mr. Chin may be contacted at kschin@pecklaw.com Read the court decision
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Arizona Supreme Court Clarifies Area Variance Standard; Property Owners May Obtain an Area Variance When Special Circumstances Existed at Purchase

October 19, 2017 — Nick Wood, Adam Lang, Noel Griemsmann, & Brianna Long – Snell & Wilmer Real Estate Litigation Blog
In Pawn 1st v. City of Phoenix, the Arizona Supreme Court rejected a Court of Appeals rule that would have unduly restrained alienation of property in Arizona. The Court of Appeals found that the City of Phoenix Board of Adjustment acted beyond its authority when it granted an area variance to a pawn shop where the special circumstances causing a need for the variance existed before the pawn shop purchased the property. Under Arizona law, boards of adjustment cannot grant an area variance where the special circumstances requiring the variance are self-imposed. The Court of Appeals adopted a rule that knowledge of special circumstances at the time of purchase made the special circumstances self-imposed, foreclosing the purchaser’s ability to obtain a variance. This rule would have severely restricted property purchasers’ ability to obtain area variances in Arizona and by extension likely strained property transactions. The underlying case involved a pawn shop that was proposed in southeast Phoenix. After the property purchaser obtained approval for a required use permit (for a pawn shop) and a variance (for a 500 foot residential setback) from the City of Phoenix Board of Adjustment, a competing pawn shop filed a special action arguing that the variance was a use variance, not an area variance, beyond the board of adjustment’s authority. Reprinted courtesy of Snell & Wilmer attorneys Nick Wood, Adam Lang, Noel Griemsmann and Brianna Long Mr. Wood may be contacted at nwood@swlaw.com Mr. Lang may be contacted at alang@swlaw.com Mr. Noel may be contacted at ngriemsmann@swlaw.com Ms. Brianna may be contacted at bllong@swlaw.com Read the court decision
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Nebraska Joins the Ranks—No CGL Coverage for Faulty Work

September 17, 2014 — Craig Martin – Construction Contractor Advisor
The Nebraska Court of Appeals has ruled that a home builder that fails to adequately compact the soil does not have insurance coverage to repair damages to the home caused by the settling soil. In “insurance speak”, there was no occurrence to trigger coverage. In this case, Cizek Homes, Inc. v Columbia National Insurance Company, a home builder contracted with a buyer to build a house. A lot was selected and the home was built. After the buyer moved in, the house started to settle, causing damage to the house. The buyer told the builder about these problems and the builder agreed to fix the problems. The builder also contacted its insurance company and requested coverage for the buyer’s claim. The insurer rejected the claim, determining that the buyer’s claim was not covered by the builder’s Commercial General Liability (CGL) insurance. The insurer then filed suit asking the court to interpret the insurance policy and to determine whether the CGL insurance covered the claim. The court looked to the buyer’s allegations that the builder failed to construct the home in accordance with accepted construction and industry standards and that the builder was negligent in designing and constructing the home. The builder admitted that it was obligated to pay for the costs of repairs, but denied that it was negligent in constructing the home. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Request for Stay Denied in Dispute Over Coverage for Volcano Damage

August 10, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Although there were concurrent state and federal proceedings regarding the insureds' claims for damage caused by Kilauea Volcano, the federal district court refused to dismiss or stay the federal action. Aqulina v Certain Underwriters at Lloyd's Syndicate #2003, 2020 U.S. District Ct. LEXIS 101832 (D. Haw. June 10, 2020). Plaintiffs held homeowner's policies from Lloyd's that were brokered and underwritten by various defendants. Coverage from the May 2018 eruption of Kilauea Volcano was denied based upon an exclusion precluding coverage for lava-related damage. Plaintiffs sued Lloyds and various brokers in federal court, alleging that defendants had engaged in a deceptive scheme to defraud plaintiffs and deprive them of meaningful coverage. Lawsuits were also filed in state court, with plaintiffs arguing their losses were covered by their policies and that defendants wrongfully relied solely on the lava exclusion to deny claims. 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

Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect

November 04, 2019 — Luke Mecklenburg - Snell & Wilmer Real Estate Litigation Blog
The Colorado legislature had a busy session this year. Among the several significant bills it enacted, HB1170 strengthens tenant protections under the implied warranty of habitability. It became effective on August 2, 2019, so landlords and tenants alike are now subject to its requirements. The bill makes numerous changes to Colorado’s implied warranty of habitability, and interested parties should review the bill in detail. Landlords in particular may want to consider retaining legal counsel to make sure they have proper procedures in place to promptly deal with any habitability complaints within the new required timelines. This posting is not intended to provide a comprehensive guide to the changed law, but simply to highlight some of the most significant changes. With that caveat, landlords and tenants should be aware that as of August 2, 2019:

The following conditions are now deemed to make a residential residence uninhabitable for the purposes of the implied warranty of habitability:
- The presence of mold, which is defined as “microscopic organisms or fungi that can grow in damp conditions in the interior of a building.”
- A refrigerator, range stove, or oven (“Appliance”) included within a residential premises by a landlord for the use of the tenant that did not conform “to applicable law at the time of installation” or that is not “maintained in good working order.” Nothing in this statute requires a landlord to provide any appliances, but these requirements apply if the landlord either agreed to provide appliances in a written agreement or provided them at the inception of the tenant’s occupancy.
- Other conditions that “materially interfere with the tenant’s life, health or safety.”
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Reprinted courtesy of Luke Mcklenburg, Snell & Wilmer
Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com
Florida Representative Wants to Change Statute of Repose
December 10, 2015 — Beverley BevenFlorez-CDJ STAFF
Currently in Florida, the ten year clock for construction defect claims typically starts ticking after the final payment is made by the owner. However, WFSU reported, Representative Keith Perry wants to change it so that the completion of the construction triggers the statute of repose. This change “could favor the construction industry, by shifting the power to start the clock from home owners to builders,” WFSU claimed. Representative Dwight Dudley worries about “what would happen if a contractor felt she was finished but the property owner didn’t agree.” Read the court decision
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