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New Jersey’s Independent Contractor Rule

January 07, 2015 — Christopher G. Hill – Construction Law Musings
For this week’s Guest Post Friday here at Musings, we welcome back Bennet Susser. Bennet is a founding member and shareholder of the New Jersey law firm, Jardim, Meisner & Susser, P.C. He has over 25 years’ experience in representing clients in all types of complex (and not so complex) litigation, including those involving construction actions. His Construction Law Practice Group has deep experience in the representation of property owners, developers, homeowners, design professionals, materials manufacturers, contractors and subcontractors in connection with construction of high-rise and other residential developments, condominium conversions of older rental properties, commercial property, mixed-use projects, and governmental buildings. Issues handled include: construction defects and deficiencies related to residential and commercial construction, including roofing defects, water intrusion, and structural life safety; construction delays; liens; hurricane recovery and rebuilding; insurance coverage disputes, including negotiation and resolution of insurance claims related to rebuilding; mold and mildew claims; and construction contracts and related documents, including loan documentation. Construction litigation often seeks to foist the culpable conduct of contractors and subcontractors upon an owner or developer of commercial or residential real property. Sometimes, such conduct is warranted, especially when the owner/developer has a significant role in the manner in which the construction project work is to be conducted. However, there are times when the general contractor is the party calling the shots. Why should an owner/developer be charged with the conduct of other independent contractors over whom no control was exercised? Under certain circumstances, such party may be insulated from liability based on the “independent contractor rule.” Put another way, general contractors’ and subcontractors’ status as independent contractors do not impute liability to an owner/developer for their alleged wrongful conduct under the principles of respondeat superior and vicarious liability. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Reports of the Death of SB800 are Greatly Exaggerated – The Court of Appeal Revives Mandatory SB800 Procedures

September 03, 2015 — Steven M. Cvitanovic & David A. Harris – Haight Brown & Bonesteel LLP
In a 20 page opinion, the Court of Appeal for the Fifth District repudiated the holding of Liberty Mutual Insurance Co. v. Brookfield Crystal Cove, LLC (2013) 219 Cal.App.4th 98 (“Liberty Mutual”), and held that plaintiffs in construction defect actions must comply with the statutory pre-litigation inspection and repair procedures mandated by SB800 (the “Act”) regardless of whether they plead a cause of action for violation of the Act. The Case, McMillin Albany LLC v. Superior Court (Carl Van Tassell), (Ct. of Appeal F069370) breathes new life into the Act’s right to repair requirements, and reinforces the Act’s stated purpose of seeking to limit the number of court cases by allowing a builder to resolve construction defect claims by agreeing to repair the homeowners’ residence. In McMillin, 37 homeowners filed a lawsuit against McMillin, the builder of their homes, alleging eight causes of action, including strict products liability, negligence, and breach of express and implied warranty. Plaintiffs’ third cause of action alleged violations of the Act. The plaintiffs did not follow the Act’s notification procedures and filed their lawsuit without providing McMillin with an opportunity to repair the alleged defects. Plaintiffs and McMillin attempted to negotiate a stay of the lawsuit to complete the Act’s prelitigation procedures. When talks broke down, plaintiffs dismissed the third cause of action and contended they were no longer required to follow the Act’s prelitigation procedures. McMillin filed a motion to stay with the trial court. The trial court denied McMillin’s motion concluding that under Liberty Mutual, “[plaintiffs] were entitled to plead common law causes of action in lieu of a cause of action for violation of the building standards set out in [the Act], and they were not required to submit to the prelitigation process of the Act when their complaint did not allege any cause of action for violation of the Act.” Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and David A. Harris, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Harris may be contacted at dharris@hbblaw.com Read the court decision
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Reminder: Quantum Meruit and Breach of Construction Contract Don’t Mix

July 30, 2015 — Christopher G. Hill – Construction Law Musings
Construction contracts (preferably written ones) are near and dear to my heart here at Construction Law Musings. In a world where the contract is king, having a written construction agreement is a key component of any properly run construction project. However, even with the best construction contract there are claims (Murphy was an optimist after all). When making these claims, we construction lawyers tend to plead both the breach of contract and quantum meruit (or in non lawyer speak- unjust enrichment) when drafting a complaint in a construction dispute. A recent case out of the Western District of Virginia federal district court reminds us all that these two counts must be plead alternatively because they simply cannot exist in a lawsuit from beginning to end. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Mediation in the Zero Sum World of Construction

September 26, 2022 — Christopher G. Hill - Construction Law Musings
Construction is a zero sum game. What do I mean by that? I mean that even where you, a construction professional with a great construction lawyer, have reviewed and edited a subcontract presented to you or provided a well-drafted contract to the other party that contains an attorney fees provision, every dollar that you spend on litigation is a dollar less of profit. Couple the fact that no construction company can or should bid or negotiate work with an eye toward litigation (aside from having a well written contract that will be enforced to the letter here in Virginia). Particularly on “low bid” type projects, contractors and subcontractors cannot “pad” their bids to take into account the possibility of attorney fees, arbitration, or litigation. Furthermore, the loss of productivity when your “back office” personnel are tied up dealing with discovery, phone calls, and other incidents of litigation that do nothing but rehash a bad project and increase the expense sap money from the bottom line. While the possibility of a judgment including attorney fees may soften this blow, you are still out the cash. All of this said, if you are in commercial construction for any significant period of time disputes will arise and I have discussed the process in some detail at other places here at Construction Law Musings. As a construction litigator, I am fully aware of this fact of life. Efficient management of these disputes is key, particularly when they escalate to the point where some form of outside “help” (read arbitrator or judge) is necessary. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Identifying and Accessing Coverage in Complex Construction Claims

September 29, 2021 — Jeffrey J. Vita & Michael V. Pepe - Saxe Doernberger & Vita, P.C.
I. Introduction First-party, third-party, builder’s risk, professional liability, commercial general liability, wrap-ups, and additional insured status are all potential sources of insurance coverage for a large construction loss. Therefore, it is critical for construction industry participants, from owners and developers to general contractors and their subcontractors, to have a functional knowledge of the different types of insurance coverage available to them and how those coverages intersect to respond to a loss. This paper presents a brief overview of the various types of coverage available to contractors, construction managers, and owners in a large construction loss and the risks each coverage is designed to insure. In general, there are two forms of coverage: (1) First-party liability coverage, which protects an insured’s own losses on a project during construction; and (2) Third-party liability coverage, which insures the project participants for losses that become the subject of claims or suits brought against the project participants by third parties. When a loss occurs, such as property damage, both types of coverage can be implicated. For example, if a fire burns down a building under construction, the contractor likely would incur first-party losses such as cleanup costs. The contractor may also have third-party exposure if the owner alleges that the contractor was responsible for the fire. On the other hand, when a bodily injury occurs, all losses to the contractor will be third-party losses. A broad overview of each of these policies is provided below. Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita and Michael V. Pepe, Saxe Doernberger & Vita Mr. Vita may be contacted at JVita@sdvlaw.com Mr. Pepe may be contacted at MPepe@sdvlaw.com Read the court decision
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KB Home Names New President of its D.C. Metro Division

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
The Washington Business Journal reported that Jon Adler has been named president of Los Angeles-based KB Home's D.C. Metro division. Adler "most recently a partner with The Georgelas Group in McLean, and served as president and CEO of its Bryton Homes division. Prior to that, he held executive roles at Reston-based NVR Inc." KB Home, since 1957, "has built more than half of a million homes," according to the Washington Business Journal. "It currently builds in 10 states." Read the court decision
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Sixth Circuit Holds that Some Official Actions Taken in the “Flint Water Crisis” Could Be Constitutional Due Process Violations

March 27, 2019 — Anthony B. Cavender - Gravel2Gavel
In what the Court of Appeals describes as “the infamous government-created environmental disaster known at the Flint Water Crisis,” a panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that some of the government personnel responsible for this disaster may be liable, under 42 U.S.C. § 1983, for monetary damages based on the Substantive Due Process Clause of the Fourteenth Amendment to the Constitution. The case is Guertin, et al., v. State of Michigan, et al., decided on January 4, 2019. On April 25, 2014, the City of Flint, MI, facing a financial crisis, agreed to switch its drinking water supply from the water provided by the Detroit Water and Sewerage Department to untreated water available from the Flint River that would be treated in the waterworks owned and operated by the City. However, the City waterworks could not provide the needed treatment, which resulted in the corrosive Flint River water leaching lead out of the old Flint water pipes. Soon thereafter, a public health and environmental crisis enveloped Flint. Many lawsuits have been filed against many defendants, and many civil and criminal investigations have been opened. 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

Construction Defects through the Years

July 31, 2013 — CDJ STAFF
Builder has an article on the some building changes over the years that have led to construction defect problems. Is insulation evil? Well, that what some thought in the 1930s. Early attempts at insulating walls trapped moisture causing paint to peel. Then in the 1960s, the rise of aluminum wire lead to an even more serious problem: house fires. And it continues. The plastic piping that was though to last forever when it was installed in the late 70s turned out to have about a decade of life. It’s a short forever. Eventually, polybutylene plumbing was forbidden by building codes. The article has a series of building innovations that seemed like great ideas at the time, but were later found to be problematic. Read the court decision
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