Home Sales Going to Investors in Daytona Beach Area
December 11, 2013 —
CDJ STAFFHouses are selling quickly in the Daytona Beach, Florida area, but many of the buyers are investors who are buying up homes in hopes of selling them several years later. Maryke Guild, a real estate agent said that “in three, four years’ time, when the market has been resaturated, those guys are going to sell at a profit, there’s no doubt.” But while the housing market is good news for investors, it’s actually bad news for homebuilders.
“Flips are not what’s going to sustain the market,” said John Adams the general manager of the Adams, Cameron & Co., a Daytona-area real estate firm. Contractors are building new homes in the Daytona area, but the number of homes built in Volusia County in 2013 is a little more than a fifth of what was built in 2005. In adjacent Flagler County, homebuilding is at less than a tenth of what it was in 2004.
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Washington’s Court of Appeals Protects Contracting Parties’ Rights to Define the Terms of their Indemnity Agreements
March 19, 2024 —
Margarita Kutsin - Ahlers Cressman & Sleight PLLCIt has long been the law in Washington that contracting parties are free to draft contractual indemnity agreements to allocate risk arising from performance of the work, and Courts will generally enforce those agreements as written. This well-settled principle was recently reaffirmed in King County v. CPM Development Corp., dba ICON Materials[1] a decision from Division I of the Washington Court of Appeals, wherein one party to an indemnity agreement attempted to evade its contractual obligations by arguing that certain common law indemnity principles supersede the written terms. This appeal followed a multi-week jury trial from which the client and Ahlers Cressman and Sleight legal team, including Lindsay Watkins, Klien Hilliard, and Christina Granquist, obtained a seven-figure judgment in the client’s favor, including an award of all attorneys’ fees and costs.
ICON was the general contractor on a Vashon Island Highway Pavement project for King County. Part of the work on the project involved hauling away and disposing of ground milled asphalt (the “millings”) at King County-approved sites. ICON and D&R Excavating Inc., (“D&R”) executed a subcontract for D&R to perform that work. The subcontract incorporated the contract between ICON and King County, including the obligation to stockpile millings only at approved sites. D&R, however, did not obtain the requisite approvals from King County, and placed the millings at various sites on the Island, including locations that King County explicitly rejected.
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Margarita Kutsin, Ahlers Cressman & Sleight PLLCMs. Kutsin may be contacted at
margarita.kutsin@acslawyers.com
Nondelegable Duty of Care Owed to Third Persons
May 29, 2023 —
David Adelstein - Florida Construction Legal UpdatesAlthough a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions. Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff. No duty, no negligence claim.
What if a defendant’s duty was delegated to, say, an independent contractor?
[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.
Garcia, supra, (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Do We Really Want Courts Deciding if Our Construction Contracts are Fair?
March 19, 2015 —
Christopher G. Hill – Construction Law MusingsAs I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would
essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction.
Of course, as soon as I posted last week, my friend and colleague
Scott Wolfe (@scottwolfejr) commented on that post and then
gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or
discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that
you should read your contracts carefully because they will be the law of your business relationship in the future.
The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.”
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
No Coverage Under Installation Policy When Read Together with Insurance Application
January 16, 2024 —
David Adelstein - Florida Construction Legal UpdatesA recent case out of the Eleventh Circuit denied an underground contractor’s claim under what appears to be a commercial property installation floater policy (inland marine coverage) that covers the contractor’s materials. Whereas a builder’s risk policy is more expansive, an installation floater is narrower and can provide protection to a contractor for materials and equipment in transit, stored, or being installed subject to the terms of the installation floater policy. It can provide coverage to a trade subcontractor for materials that aren’t covered by builder’s risk.
In Travelers Property Casualty Company of America v. Talcon Group, LLC, 2023 WL 8798053 (11th Cir. 2023), an underground utility contractor that had a general contractor’s license had an installation policy that provided coverage “only for underground utility operations and the site development work tied to those operations.” Talcon Group, supra, at *1. The utility contractor was constructing two residential homes that was on land owned by an affiliated family entity. During construction of the residential homes, a wildfire destroyed the homes prior to the issuance of certificates of occupancy. The utility contractor submitted a notice of loss to its insurance carrier that provided the installation policy. The carrier denied the claim because the construction of the homes was NOT the same type of work as the installation of underground utilities which was covered. An insurance coverage lawsuit ensued.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Angela Cooner Receives Prestigious ASA State Advocate Award
April 12, 2021 —
Angela Cooner - Lewis BrisboisPhoenix Partner Angela L. Cooner recently received the American Subcontractors Association, Inc. (ASA) 2020 State Advocate award during ASA’s Virtual Awards Presentation, which took place on February 25. ASA selected Ms. Cooner as the recipient of this honor based upon the significant time that she spent and value she added to subcontractor advocacy in Arizona over the last year.
In nominating Ms. Cooner for this award, ASA of Arizona stated, “Angie’s dedication and track record are second to none. However, it is her leadership in managing the recent merger between the Arizona State Contractors’ Coalition (AZSCC) and Arizonans for Fair Contracting (AFC) where she has distinguished herself most notably.” Moreover, ASA explained that Ms. Cooner’s dedication “has allowed ASA of Arizona to renegotiate a new contract with a government affairs firm that helped secure victory on a critical proportional liability bill and begin the upcoming legislative session on the right foot.” According to ASA, Ms. Cooner has donated the equivalent of $120,000 in billable hours to the organization through her work for AFC and as legal counsel for ASA of Arizona’s Board of Directors.
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Angela Cooner, Lewis BrisboisMs. Cooner may be contacted at
Angela.Cooner@lewisbrisbois.com
Hundreds Celebrated the Grand Opening of the Associated Builders and Contractors of Southern California Riverside Construction Training Center
February 14, 2023 —
Associated Builders and ContractorsRIVERSIDE, Calif., Feb. 10, 2023 (GLOBE NEWSWIRE) -- Today the Associated Builders and Contractors Southern California Chapter (ABC), hosted hundreds of community members as they cut the "ribbon" of their third training center in Southern California.
"Today is a celebration, but it also represents a continued commitment by ABC and our membership to supply a skilled, trained, and safe construction workforce for Southern California," stated Nick McFayden, ABC SoCal's Board Chair.
Jon Krystafik, Vice Chairman of the Training Trust commented, "Our training facility is unique. You may have toured other facilities but with ours you will see we don't just train one craft. Here Apprentices and Craft trainees are receiving cutting edge training in Electrical, Plumbing, Low Voltage and HVAC/Sheet Metal." Krystafik added, "Our trustees had a dream 10 years ago to train residents in the inland empire. Today it is a reality!"
ABC Southern California Chapter is an association of contractors that believe in the Merit Shop Philosophy. Merit shop encourages open competition and a free enterprise approach that awards contracts and employment based solely on merit, safety, quality, and cost, regardless of labor affiliation. The chapter is one of 68 throughout the country and represents nearly 400 member companies.
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Show Me the Money: The Good Faith Dispute Exception to Prompt Payment Penalties
March 13, 2023 —
Garret Murai - California Construction Law BlogCalifornia has a number of
prompt payment penalty statutes on the books. Among them is Civil Code section 8800 which requires project owners on private works projects to pay progress payments to direct contractors within 30 days after demand for payment pursuant to contract or be subject to prompt payment penalties of two percent (2%) per month on the amount wrongfully withheld. Like California’s other prompt payment penalty statutes, however, there is an important carve out: If there is a good faith dispute between the project owner and the direct contractor the project owner may withhold up to 150% of the dispute amount and not be subject to prompt payment penalties. And that, my friends, is a higher-tiered party’s “get out of jail free” card.
In a case of first impression, the 1st District Court of Appeals, in
Vought Construction Inc. v. Stock (2022) 84 Cal.App.5th 622, examined whether a project owner’s claim for liquidated damages constitutes a good faith dispute under Civil Code section 8800.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
