Recent Federal Court Decision Favors Class Action Defendants
October 26, 2020 —
Amber Karns & Dan Pipitone - Construction ExecutiveThe commercial construction contracting and subcontracting industry in general is unique under the law for industry professionals, as they’re typically limited to wage and hour litigation under provisions of the Fair Labor Standards Act.
The majority of FLSA cases seek class action status or collective classification, while other FLSA litigation is initiated by individuals seeking damages. For the former, past and current employees can opt into class action litigation and seek collective damages against a construction company. The looming financial burden of class action or collective litigation against construction companies consume time, money and resources to the extent it’s often advisable for Defendants to negotiate an unfair settlement.
Yet, thanks to a recent federal court decision on March 27, 2020, the legal maneuvering behind unreasonable Plaintiff demands may soon be counter-balanced by the class action Defendants’ right to due process review. A recent legal opinion in a recent FLSA case has potentially wide-ranging implications for Defendant employers mired in future class action litigation. Moreover, as the FLSA applies to all employers, this decision potentially applies to all ownership groups representing the commercial construction industry, extending to partners, contractors and subcontractors.
Reprinted courtesy of
Amber Karns & Dan Pipitone, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Pipitone may be contacted at dpipitone@munsch.com
Ms. Karns may be contacted at akarns@munsch.com
Read the court decisionRead the full story...Reprinted courtesy of
Top 10 Take-Aways from the 2024 Annual Forum Meeting in New Orleans
May 20, 2024 —
Marissa L. Downs & Brendan Witry - Laurie & Brennan, LLPOver 600 construction lawyers, experts, and consultants met in New Orleans last week for the Forum’s 2024 Annual Meeting where Program Coordinators Brenda Radmacher and Joseph Imperiale together with John Cook and Buck Beltzer put together an insightful program focused on all things construction litigation. Here are our 10 top take-aways from this unique program.
10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators.
Reprinted courtesy of
Marissa L. Downs, Laurie & Brennan, LLP and
Brendan Witry, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com
Mr. Witry may be contacted at bwitry@lauriebrennan.com
Read the court decisionRead the full story...Reprinted courtesy of
Repairs Could Destroy Evidence in Construction Defect Suit
June 28, 2013 —
CDJ STAFFRepair work is underway on the Palladium concert hall in Carmel, Indiana, a suburb of Indianapolis, a contractor for the project says that the repairs will destroy evidence that they need to defect against additional construction defect allegations. Work stopped in 2009 for three months of repairs after problems were found in the steel roof supports. Steel Supply & Engineering Co. has claimed that the column failures are due to errors in the design. They say that if the repair work continues, it “would result in the spoliation of evidence, and will irreparably harm the defendants, and ultimately adversely affect their ability to protect their rights in the action.” They have asked the court to bring repairs to a stop until they are able to inspect the steel.
Read the court decisionRead the full story...Reprinted courtesy of
Oregon Supreme Court Confirms Broad Duty to Defend
November 21, 2017 —
Theresa A. Guertin - Saxe Doernberger & Vita, P.C. BlogOriginally published by CDJ on January 13, 2017
The Supreme Court of Oregon issued a decision at the end of last year which perfectly illustrates the lengths to which a court may go to grant a contractor’s claim for defense from its insurer in a construction defect suit. In West Hills Development Co. v. Chartis Claims, Inc.,1 the Court held that a subcontractor’s insurer had a duty to defend a general contractor as an additional insured because the allegations of a homeowner’s association’s complaint could be interpreted to fall within the ambit of coverage provided under the policy—despite the fact that the policy only provided ongoing operations coverage, and despite the fact that the subcontractor was never mentioned in the complaint. The decision is favorable to policyholders but also provides an important lesson: that contractors may avoid additional insured disputes if those contractors have solid contractual insurance requirements for both ongoing and completed operations risks.
Read the court decisionRead the full story...Reprinted courtesy of
Theresa A. Guertin, Saxe Doernberger & Vita, P.C.Ms. Guertin may be contacted at
tag@sdvlaw.com
Sometimes You Get Away with Unwritten Contracts. . .
January 20, 2020 —
Christopher G. Hill - Construction Law MusingsI have spoken often regarding the need for a well written construction contract that sets out the “terms of engagement” for your construction project. A written construction contract sets expectations and allows the parties to the contract to determine the “law” of their project. An unwritten “gentleman’s agreement” can lead to confusion, faulty memories, and more money paid to construction counsel than you would like as we lawyers play around in the grey areas.
One other area where the written versus unwritten distinction makes a difference is in the calculation of the statute of limitations. In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts. This distinction came into stark relief in the case of M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court. In M&C Hauling, M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited in 2014, the last of which was in July. M&C provided over 2000 hours of hauling and provided time tickets (that were passed to Mr. Hale on Hauling Unlimited letterhead and signed by Mr. Hale or his agent) and an invoice stating the price term of $75.00 per hour. No separate written contract between M&C and Hauling Unlimited or Mr. Hale existed.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
A Networked World of Buildings
November 21, 2022 —
Pieter Pauwels - AEC BusinessBuildings are living things. Buildings change shape every day and every minute. They are used by plenty of people, endlessly. Buildings shape our context and environment, and they impact our well-being to a large extent. Buildings constantly change their behavior under the influence of external conditions and occupants. We have an interest in engineering these buildings and making them as comfortable and pleasant as possible. Instead of treating buildings as static monuments that happen to be in our environment, it makes sense to treat them as living things that change incessantly, with streams of people, streams of materials and goods, and as ever-changing ecosystems of living beings.
And so, we must engineer the knowledge and information of our buildings! We need to provide our buildings with a set of brains, brains that evolve and continuously track the state of the facility and all of its internals: systems, materials, demountable elements, furniture, and people. The brains hold a snapshot of the building at any moment and allow us to ensure that this living building responds in a useful and likable manner (comfort). And this needs efforts from us human beings, and not only from ‘the AI.’
Read the court decisionRead the full story...Reprinted courtesy of
Pieter Pauwels, AEC BusinessMr. Pauwels may be contacted at
p.pauwels@tue.nl
Coverage for Construction Defects Barred By Exclusion j (5)
April 15, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Texas Court Appeal reversed a trial court judgment which found coverage in favor of the contractor based upon exclusion j(5). Dallas Nat'l Ins. Co. v. Calitex Corp., 2015 Tex. App. LEXIS 2002 (Tex. Ct. App. March 3, 2015).
Turnkey Residential Group, Inc., was the contractor to construct a twelve-unit townhome complex in Dallas. The owner of the project was Calitex Corporation. Construction began on November 2006. The project was to be completed by Turnkey by October 27, 2007.
Calitex filed suit against Turnkey and some of its subcontractors in February 2008. Calitex alleged problems with Turnkey's work included: (1) the stone exterior was not properly treated and leaked, and some areas were left uncovered with stone; and (2) windows leaked. It was further alleged that the quality of materials, labor and craftsmanship did not meet the standards of the contract and resulted in damages. Turnkey submitted a notice of claim to its insurer, Dallas National Insurance Company (DNIC). Coverage was denied.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Miller Act Payment Bond Surety Bound to Arbitration Award
December 29, 2020 —
David Adelstein - Florida Construction Legal UpdatesHere is an interesting case binding a Miller Act payment bond surety to an arbitration award against its prime contractor (bond principal) that it received sufficient notice of. Notice is the operative word. The surety could have participated in the arbitration, elected not to, and when its prime contractor (bond principal) lost the arbitration, it was NOT given another bite out of the apple to litigate facts already been decided.
In BRC Uluslararasi Taahut VE Ticaret A.S. v. Lexon Ins. Co., 2020 WL 6801933 (D. Maryland 2020), a prime contractor was hired by the federal government to make security upgrades and interior renovations to a United States embassy in the Czech Republic. The prime contractor hired a subcontractor to perform all of the installed contract work. The prime contractor terminated the subcontractor for default during the course of construction.
The subcontractor demanded arbitration in accordance with the subcontract claiming it was wrongfully terminated. The subcontractor also filed a lawsuit asserting a Miller Act payment bond claim against the prime contractor’s surety (as well as a breach of contract action against the prime contractor). The subcontractor made clear it intended to pursue its claims in arbitration and hold the payment bond surety jointly and severally liable. The parties agreed to stay the lawsuit since the facts were identical to those being arbitrated. The arbitration went forward and an award was entered in favor of the subcontractor and against the prime contractor for approximately $2.3 Million.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
