New Rule Prohibits Use of Funds For Certain DoD Construction and Infrastructure Programs and Projects
May 30, 2018 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogRecently, our colleagues Glenn Sweatt and Alex Ginsberg published their Client Alert titled
DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan, Recently published regulation implements the FY17 NDAA to prohibit use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel. Takeaways include:
New rule prevents Government contracting officers from funding projects that are not able to be safely accessed by Government civilian or military personnel, as these may pose an increased risk of fraud, corruption or waste, or lack efficient oversight.
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Pillsbury's Construction & Real Estate Law Team
Unjust Enrichment Claims When There Is No Binding Contract
December 04, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent appellate opinion starts off, “This is a typical South Florida construction dispute.” (See case citation at the bottom) Let’s see, is it? No. It’s a garden variety payment dispute where the parties did NOT have a binding contract. Why? That’s for a different day (because the smart practice is ALWAYS to have a contract!) but it touches on the equitable, unjust enrichment claim. And it touches on competing unjust enrichment claims and the apportionment of those claims. In other words, can both parties be right on their unjust enrichment claims?
An owner hired a general contractor for home renovations. Work started but the relationship soured and the general contractor did not complete the work. The general contractor filed a payment dispute against the owner based on unpaid invoices. It pled alternative theories of recovery against the owner: breach of contract and unjust enrichment. The owner filed a counterclaim against the general contractor for the same claims. During the non-jury trial, the general contractor presented unpaid invoices along with testimony that the invoices represented the value of services rendered. The owner presented evidence of the completion of work damages.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
You Are Not A “Liar” Simply Because You Amend Your Complaint
March 14, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn litigation, it is common for a plaintiff to amend their complaint. They may amend to add additional parties. To add new claims. To change the factual allegations. Or, to change the theme of their case.
Most of the time, complaints are not verified by the plaintiff. Instead, complaints are drafted and signed by the plaintiff’s counsel.
A question becomes: how prior reiterations of a complaint can be used against the plaintiff to show they are a bunch of “liars” by making amendments to their complaint. Sounds prejudicial to the plaintiff, right? Particularly if there is a jury.
The reality is that amending complaints for various reasons is routine. Doing so does NOT make the plaintiff a liar and is not a vehicle that a defendant should use to create this inference. A defendant that tries to do so simply wants to detract from the substantive facts and issues.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Colorado Legislature Kills SB 20-138 – A Bill to Extend Colorado’s Statute of Repose
June 22, 2020 —
David M. McLain – Colorado Construction LitigationAs previously reported, SB 20-138, “Concerning Increased Consumer Protection for Homeowners Seeking Relief for Construction Defects,” would have extended the Colorado statute of repose applicable to construction defect claims. Senate Bill 20-138, if enacted, would have:
- Extended Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
- Required tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
- Permitted statutory and equitable tolling of the statute of repose.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Insurer's Motion for Summary Judgment to Reject Collapse Coverage Denied
November 24, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer unsuccessfully moved for summary judgment seeking to reject the insured's collapse claim. Gnannn v. United Servs. Auto, Ass'n, 2019 Conn. Super. LEXIS 1955 (Conn. Super Ct. July 11, 2019).
The insureds' home was built in 1985 and they purchased their home in 1993. A home inspection reported that some settlement and curing related cracks existed in the slab floor, but no signs of abnormal settlement were noticed. The concrete walls were in overall good condition.
In 2015, the insureds became aware of abnormal cracking in the basement. USAA was informed of the claim but denied coverage in October 2015. The insureds sued USAA. After suit was filed, the insureds hired an engineer, David Grandpre, to inspect their home. He observed severe cracking in the basement walls caused by an expansive chemical reaction within the concrete. The structure was not in imminent peril of falling down, and it continued as insureds' residence. But Mr. Grandpre noticed bulging and bowing, evidence that the concrete basement walls had failed and had begun to move inward due to the lateral pressure of the soil outside the home.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Coverage Article - To Settle or Not To Settle?
September 20, 2017 —
Tred R. Eyerly - Insurance Law HawaiiMy colleagues Rina Carmel, Karin Aldama and I authored an article entitled, "To Settle or Not to Settle? Bad-Faith Implications in Resolving Underlying Actions." The article appears in the current edition of Coverage, published by the Insurance Coverage Litigation Committee of the ABA. The article is here.
The article addresses the obstacles faced when settling liability claims. The insurer and insured may have fundamental disagreements on whether to settle or how much to pay in settlement. Should the insured contribute to the settlement? Whether the insurer should seek from the policyholder, or the policyholder offers to make, a settlement contribution presents thorny issues, including whether such a contribution can convert an excess demand into a demand within limits—which, in turn, affects the standard for evaluating the insurer’s response to the third-party demand. On the other hand, the policy holder may not want to settle and set a bad precedent.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Avoid Drowning in Data: Keep Afloat with ESI in Construction Litigation
May 15, 2023 —
Steve Swart - The Dispute ResolverMaybe it is another lawyer on your team, a client, the Court. Maybe it is you. Almost every lawyer has heard (or thought, felt, or anguished over) the following: Wait — What? Discovery is going to cost how much?
The concern is real. Per a 2019 Southern District of New York opinion:
- The average case can involve collection, review and production of 100 gigabytes of data (or 6.5 million pages of Word documents).
- At a typical rate of review of 40-60 documents per hour, assuming 100,000 documents are collected, that is about 2,000 hours of attorney review time.
- Adding in fees for forensic collection, storage, and processing to maintain metadata can result in a bill totaling $500,000.
Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 645 & n.3 (S.D.N.Y. 2019).
What's counsel to do? The following four points can help counsel streamline and reduce costs in discovery: (1) know your case, (2) know your data — understand it and document collection, (3) cooperate with counsel, and (4) implement a protocol for electronically-stored information ("ESI").
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Steve Swart, Williams MullenMr. Swart may be contacted at
sswart@williamsmullen.com
Supreme Court of New York Denies Motion in all but One Cause of Action in Kikirov v. 355 Realty Assoc., et al.
April 28, 2011 —
Beverley BevenFlorez CDJ STAFFIn the construction defect suit Kikirov v. 355 Realty Associates, LLC, et al., the Supreme Court of the State of New York granted a dismissal of the plaintiff’s fourth cause of action, but denied the defendants’ motion in all other respects. The plaintiff alleged breach of contract, among other claims. “355 Realty was the sponsor of 355 Kings Highway Condominium, a condominium project located at 355 Kings Highway, in Brooklyn, New York. The condominium units were allegedly marketed as ‘ultra luxury condos,’ and a ‘Manhattan style condominium building,’ which would be the ‘epitome of luxury and quality.’ The construction of the six-story 28 unit residential condominium building began in approximately November 2003. […] Plaintiff entered into a purchase agreement, dated December 21, 2005, with 355 Realty (which was executed on behalf of 355 Realty by Michael Marino, as its member) for the purchase of Unit 2G in the building.”
The plaintiff alleged that construction defects emerged soon after moving into the unit: “After taking occupancy of his condominium unit, plaintiff allegedly experienced serious leakage and moisture problems in his unit, which caused a dangerous mold condition to develop, in addition to causing actual damage to the structural elements of his unit. According to plaintiff, the walls, moldings, and wood floors of his unit are constantly wet and moist, and there is severe buckling of the wood floors. Plaintiff claims that these problems have caused his unit to be uninhabitable. Plaintiff alleges that he has been forced to remove all of his personal belongings from his unit and has been unable to occupy his unit.”
According to the plaintiff, Foremost attempted to repair the defects, but only made the situation worse: “Specifically, plaintiff asserts that Foremost’s contractors opened his walls to remove the stained drywall, but never corrected the cause of the leaks, destroyed the walls, and never properly taped and painted the sheet rock. Plaintiff alleges that Foremost repaired the openings in a defective manner. Plaintiff also claims that his floor was repaired at that time by a subcontractor hired by Foremost, but the basic structural problem was never resolved and the leaks continued, compromising the beams and causing the mold conditions, in addition to all of the physical damage present in the unit. On or about July 16, 2009, plaintiff allegedly sent a notice of the defects to 355 Realty and to the managing agent designated by the condominium board, by certified mail, return receipt requested. Plaintiff asserts that defendants have failed and refused to repair and remedy the defective condition, and that the damage is extensive and requires major structural repairs.”
The plaintiff filed suit on May 4, 2010, and the original complaint asserted eight causes of action. “By decision and order dated September 13, 2010, the court granted a motion by defendants to dismiss plaintiff’s second cause of action for breach of implied covenants of good faith and fair dealing, his third cause of action for breach of implied warranties, his fifth cause of action for negligence as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, his seventh cause of action for negligence as against Vision, Foremost, and MMJ, and his eighth cause of action for violations of General Business Law § 349 and § 350, and granted plaintiff leave to replead his first cause of action for breach of contract as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, his fourth cause of action for breach of statutory warranties, and his sixth cause of action for breach of contract as against Vision, Foremost, and MMJ.”
The plaintiff amended their complaint on October 18, 2010, and “has repleaded these three causes of action by asserting a first cause of action for breach of contract as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, a second cause of action for breach of statutory warranties, and a third cause of action for breach of contract as against Vision, Foremost, and MMJ. In addition, plaintiff, in his amended complaint, has added a fourth cause of action for fraud.”
The defendants, on the other hand, “argue that each of the four causes of action alleged by plaintiff in his amended complaint fail to state a claim upon which relief may be granted, and that plaintiff’s amended complaint must be dismissed pursuant to CPLR 3211 (a) (7). Defendants also cite to CPLR 3211 (a) (1), and (5), asserting that dismissal is also required based upon documentary evidence and the Statute of Limitations contained in the limited warranty.” The defendants’ motion to dismiss the first cause of action, breach of contract against 355 Realty, was denied: “While defendants dispute that the alleged defects are actually structural in nature, plaintiff’s allegations as to their structural nature are sufficient, at this juncture, to withstand defendants’ motion to dismiss. Thus, dismissal of plaintiff’s first cause of action must be denied.”
Next, the court reviewed the second cause of action, which was breach of statutory warranties: “Defendants’ motion also seeks dismissal of plaintiff’s second cause of action for breach of statutory warranties, which alleges that, under applicable law, including General Business Law § 777-a, et seq., the sponsor warranted to purchasers of units that the units would be constructed in a skillful, careful, and workmanlike manner, consistent with proper design, engineering, and construction standards and practices, and free of material latent, design, and structural defects. Defendants argue that General Business Law § 777-a, known as the housing merchant implied warranty, is inapplicable to this case because it is limited to the construction of a ‘new home,’ defined in General Business Law § 777 (5) as ‘any single family house or for-sale unit in a multi-unit residential structure of five stories or less.’ As noted above, the building in which plaintiff’s condominium unit is located is a six-story building.”
The motion to dismiss the second cause of action is denied. The court provided this reasoning: “the full text of the offering plan has not been provided, the court is unable to examine the entire written agreement so as to determine the purpose of the inclusion of the text of General Business Law § 777.”
In the third cause of action, the plaintiff alleges “a breach of contract claim as against Vision, Foremost, and MMJ based upon their contract with 355 Realty, pursuant to which they agreed to be the general contractors/construction managers for the condominium, to undertake oversight responsibility for the design and construction of the condominium, to prepare and/or review drawings, plans, and specifications for the condominium, and to otherwise manage and oversee the project. Plaintiff alleges that Vision, Foremost, and MMJ breached their contractual obligations in that the condominium units were improperly and inadequately designed and constructed, and completed in an incompetent and unworkmanlike manner, with material design and construction defects.”
The motion to dismiss the third cause of action was denied as well: “Plaintiff alleges, in his amended complaint, that Vision, Foremost, and MMJ have acknowledged notice of the defects and have not denied that they are responsible for providing a warranty to plaintiff. Plaintiff also refers to this warranty, in his amended complaint, by noting that paragraph 16 of the purchase agreement stated that the ‘[s]eller shall not be liable to . . . the [p]urchaser for any matter as to which an assignable warranty . . . has been assigned . . . to [p]urchaser and in such case the sole recourse of such . . . [p]urchaser . . . shall be against the warrantor . . . except that in the event a contractor or subcontractor is financially unable or refuses to perform its warranty . . . [s]eller shall not be excused from its obligations enumerated in the [offering p]lan under Rights and Obligations of Sponsor.’ Consequently, the court finds that dismissal of plaintiff’s third cause of action as against Foremost and MMJ must also be denied.”
In the fourth cause of action, the plaintiff alleges “that defendants made false statements and representations orally, in advertisements, and in the purchase agreement, that the condominium was properly and adequately designed and constructed and completed in a competent and workmanlike manner, in accordance with the condominium plans and specifications and proper design, engineering, and construction standards and practices consistent with applicable standards for a first class, luxury condominium in Brooklyn.”
The court dismissed the fourth cause of action stating, “it must be dismissed because it is duplicative of his first cause of action for breach of contract.” Therefore, “defendants’ motion to dismiss plaintiff’s amended complaint is granted to the extent that it seeks dismissal of plaintiff’s fourth cause of action, and it is denied in all other respects.”
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