Continuing Breach Doctrine
May 28, 2024 —
David Adelstein - Florida Construction Legal UpdatesHave you ever heard of the “continuing breach” doctrine? Probably not. It is not a doctrine commonly discussed. It’s a doctrine used to try to argue around the statute of limitations.
In an older Southern District Court of Florida case, Allapattah Services, Inc. v. Exxon Corp., 188 F.R.Ed. 667, 679 (S.D.Fla. 1999), the court explained: “Under this [continuing breach] doctrine, a cause of action for breach of a contract does not begin to accrue upon the initial breach; rather, on contracts providing serial performance by the parties, accrual of a breach of contract cause of action commences upon the occurrence of the last breach or upon termination of the contract.”
Recently, this doctrine came up in an opinion by Florida’s Fifth District Court of Appeal. In Hernando County, Florida v. Hernando County Fair Association, Inc., 49 Fla.L.Weekly D947b (Fla. 5th DCA 2024), a plaintiff appealed the trial court’s dismissal with prejudice of its breach of contract claim based on the statute of limitations. The plaintiff claimed the defendant breached the contract by its failure to substantially redevelop property. The trial court dismissed based on the statute of limitations. However, the complaint alleged the defendant’s failure to comply “with numerous other intertwined, ongoing, and continuing contractual duties and obligations.” Hernando County, supra. The Fifth District reversed based on the continuing breach doctrine: “Where the nature of the contract is continuous, statutes of limitations do not typically begin to run until termination of the entire contract.” Id. quoting and citing Allapattah Servs., Inc.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Assembly Bill 1701 Contemplates Broader Duty to Subcontractor’s Employees by General Contractor
August 17, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & BargerAB 1701 recently passed the Assembly and is pending in the Senate’s Labor and
Industrial Relations and Judiciary Committees. The Bill, if signed by the Governor, would
create a new section in the California Labor Code (Section 218.7) making “direct contractors” –
defined as a contractor “making or taking a contract in the state for the erection, construction,
alteration, or repair of a building, structure, or other private work” – liable for wages a
subcontractor or sub-subcontractor fails to pay to its employee for work included in the general
contractor’s contract with the project owner.
Under the new law, direct contractors would be liable for up to one year from the date of
completion of the work for unpaid wages, fringe benefits, health and welfare benefits, and
pension fund contributions, including interest and state tax payments owed to a subcontractor’s
employee. The employee, however, would not be able to recover penalties or liquidated
damages from the general contractor.
AB 1701 would give the employee, Labor Commissioner, or a joint labor-management
cooperation committee the right to enforce the direct contractor’s liability through a civil action.
It would also extend to third parties who are owed fringe or other benefit payments or
contributions on the employee’s behalf. Pursuant to the proposed language of the new statute, a
prevailing plaintiff in such an action would be entitled to their reasonable attorneys’ fees and
costs, including expert witness fees.
Although Labor Code § 218.7 would impose certain obligations on the subcontractor to
provide the direct contractor with relevant project and payroll records, the subcontractor’s failure
to comply with those obligations does not relieve the direct contractor from liability.
Impact
AB 1701’s apparent purpose is to protect employees, an undeniably important legislative
goal. However, if passed, the bill could greatly increase general contractors’ exposure when
subcontracting work and their cost of doing business. Especially because the new law would not
impact existing laws requiring a direct contractor to timely pay a subcontractor.
As a result, many coalitions against AB 1701 stress the halting effect this could have on
the construction industry as a whole, particularly private construction, which is not as heavily
regulated as public works.
CGDRB will continue to monitor this Bill and provide updates as developments occur.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Texas Jury Awards $5.3 Million to Company Defamed by Union: Could it work in Pennsylvania?
December 21, 2016 —
Wally Zimolong – Supplemental ConditionsIn early September a Texas jury awarded a janitorial $5.3 million against the local chapter of the SEIU. The janitorial firm claimed that the SEIU damaged its reputation and caused it damages when it spread false, defamatory, and disparaging stories about the firm. Specifically, the janitorial firm claimed that the SEIU told the janitorial firms customer and potential customers that the firm “systematically failed to pay its employees for all hours worked, instructed janitors to work off the clock and had fired, threatened or refused to hire janitors who supported joining a union.” According to Law360.com, the union did this with “fliers, handbills, letters, emails, newsletters, speeches and postings on its website accused [the firm] of violating wage-and-hour and other labor laws.”
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Denver Airport's Renovator Uncovers Potential Snag
March 04, 2019 —
Nadine M. Post - Engineering News-RecordThe renovation of the Great Hall of Denver International Airport’s iconic Jeppesen Terminal, roofed by a series of peaked tensile tents that echo the nearby mountains, has hit a bump. Routine but limited concrete testing of the nearly quarter-century-old terminal’s elevated floor slab, to determine whether the floor could support crane loads, shows the compressive strength of the concrete in certain sections is lower than was specified for the original project, more than 25 years ago.
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Nadine M. Post, ENRMs. Post may be contacted at
postn@enr.com
Acceptable Worksite: New City of Seattle Specification Provisions Now In Effect
July 13, 2017 —
Lindsay K. Taft - Ahlers & Cressman PLLCThe City of Seattle’s City Purchasing & Contracting Services recently revised its General Special Provisions for City construction contracts to add new “Acceptable Worksite” language. The City indicates that the purpose of the provisions is “to ensure that City construction worksites are respectful and appropriate, including prohibiting bullying, hazing, and other similar behaviors.” An “Acceptable Worksite” is defined as a worksite “that is appropriate, productive, and safe work for all workers” and “free from behaviors that may impair production, and/or undermine the integrity of the work conditions including but not limited to job performance, safety, productivity, or efficiency of workers.”
Prohibited behaviors under the new specification provisions include persistent offensive conduct and language, hazing, offensive jokes about race, gender, or sexuality, assigning undesirable tasks or unskilled work to trained apprentices and journey-level workers, refusal to hire based on race, gender, or sexuality, and references to or requests for immigration status. The new program also includes monitoring, response, and enforcement of the provisions by City Purchasing and Contracting Services employees. Finally, the language must also be incorporated into all sub-tier contracts on City projects.
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Lindsay K. Taft, Ahlers & Cressman PLLCMs. Taft may be contacted at
ltaft@ac-lawyers.com
California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite
February 06, 2019 —
Gus Sara - The Subrogation StrategistIn Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite.
In Kohler Co., homeowners instituted a class action against Kohler, the manufacturer of water pressure and temperature regulating valves that were installed into their homes during original construction. The class action was filed on behalf of all owners of residential dwellings in California in which these Kohler valves were installed as part of original construction. The complaint asserted, among other claims, a cause of action under the Act. Kohler filed a motion for anti-class certification on the ground that causes of actions under the Act cannot be certified as a class action. The trial court denied the motion with respect to the Act but certified its ruling for appellate review. Kohler filed a petition with the Court of Appeals, arguing that certain sections of the Act explicitly exclude class action claims under the Act.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
2014 WCC Panel: Working Smarter with Technology
May 13, 2014 —
Beverley BevenFlorez-CDJ STAFFDon MacGregor, Project Manager and General Contractor with Bert L. Howe & Associates, will be joining Brian Kahn, Esq. of Chapman, Glucksman, Dean, Roeb & Barger, Paul R. Kiesel, Esq. of Kiesel Law, Hon. Peter Lichtmen (ret), Hon. Nancy Wieben Stock (ret), and Peter S. Curry of Curry Stenger Engineering as a panelist in the break-out session Working Smarter With Technology at the 2014 West Coast Casualty Construction Defect Seminar being held May 15th and 16th at the Disneyland Hotel in Anaheim, California.
With a strong focus on the topic of this year’s seminar, Back to Business . . . Working Smarter, Not Harder, the panel will discuss ways that technology can assist our industry in working more efficiently, saving money and providing a better product. Conversely, the panel will also acknowledge the limitations of technology and areas where the use of advanced technology may not be appropriate.
The information provided will be of benefit to the construction defect litigator but equally valuable to other types of complex litigation. Accordingly, this panel will appeal to those whose scope of work goes beyond the bounds of construction defect. A brief outline of topics that will be addressed by each panelist include remote virtual appearance and deposition attendances, document management software, how to create, manage and edit documents using remote technology, technological tools that allow for easier communications, transfer of information and flexibility, expert technology, and technology in mediation and trial.
The panel discussion will go beyond past seminar discussions in that they will discuss and demonstrate tools that are just coming into use now as well as new tools which are being released prior to the seminar.
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Insured Under Property Insurance Policy Should Comply With Post-Loss Policy Conditions
June 10, 2019 —
David Adelstein - Florida Construction Legal UpdatesYour property insurance policy will contain post-loss policy conditions. Examples include submitting a sworn statement in proof of loss, providing documentation to your insurer, and sitting for an examination under oath. Insurers will require you, as the insured, to comply with post-loss policy conditions unless they elect to promptly deny coverage. If you do not comply with such post-loss policy conditions you can forfeit coverage under the policy and/or give the insurer the argument that any lawsuit you filed against the property insurer is premature. Thus, there really is no upside in refusing to comply with the post-loss policy conditions, which should be done in consult with an attorney or, as the case may be, a public adjuster.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
