City Potentially Liable for Cost Overrun on Not-to-Exceed Public Works Contract
June 29, 2017 —
David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLPOn a public works construction project, a contractor incurred additional costs and asserted a claim against the city. The city denied the claim because the contract had a not-to-exceed price, and the city council and mayor did not approve contract modifications to exceed that amount. City ordinances require approval for contract modifications and change orders exceeding ten percent of the original not-to-exceed amount.
But the contractor argued that the ordinance did not apply because the excess costs did not result from a contract modification or change order. In addition, the contractor argued that, in refusing to approve an increase in the not-to-exceed amount, the city breached the implied duty of good faith and fair dealing. The court concluded that these questions were factual issues for the jury to decide.
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David R. Cook, Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
As the Term Winds Down, Several Important Regulatory Cases Await the U.S. Supreme Court
September 03, 2019 —
Anthony B. Cavender - Gravel2GavelThe Supreme Court will be deciding some very important regulatory law cases in the new few weeks as the term winds down.
CERCLA Circled
Last week, the Court granted a petition to review a significant CERCLA case, Atlantic Richfield Company v. Christian, et al., decided by the Supreme Court of Montana on state law grounds. This case involves state litigation which could result in a cleanup whose scope is allegedly inconsistent with an ongoing and expensive federal CERCLA cleanup at the Anaconda Smelter site. CERCLA basically provides that no one may challenge an ongoing Superfund cleanup, yet this state common law proceeding seeking a cleanup of the plaintiff’s homes and properties arguably threatens the EPA-approved cleanup remedy. ARCO filed a petition for certiorari with the Supreme Court, which the Court has now granted despite the Solicitor General’s brief which argued that the Court should wait to see the results of the Montana trial. (It is unusual for the Court to reject the advice of the Solicitor General.)
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Be Careful with Mechanic’s Lien Waivers
June 09, 2016 —
Christopher G. Hill – Construction Law MusingsMechanic’s liens are near and dear to my heart here at
Construction Law Musings. These powerful tools can and should be properly used to help you, as a construction professional, get paid for your good work. Of course, the correct steps toward perfecting one of these liens must be followed, including being sure to
meet the stringent lien deadlines. I’ve discussed
the steps for filing such a lien and the various pitfalls relating to the
very picky statutory requirements for recording an enforceable memorandum of lien in Virginia.
One important area that I have not discussed as thoroughly as these basic requirements (and an area of which I have been
reminded by my pals at the Construction Payment Blog) is the area of mechanic’s lien waivers. While the Virginia General Assembly has
ended the days of pre-payment contractual waiver of mechanic’s lien rights for subcontractors and suppliers, mechanic’s lien waivers that waive rights either simultaneous with or after receipt of progress and final payments are still valid and used on a regular basis.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
French Laundry Spices Up COVID-19 Business Interruption Debate
April 20, 2020 —
Jeffrey J. Vita & Melanie A. McDonald - Saxe Doernberger & VitaOn March 26, 2020, Michelin-rated Napa Valley restaurants, French Laundry and Bouchon Bistro, and their celebrity chef, Thomas Keller, filed the second known
coronavirus-related declaratory judgment (DJ) lawsuit by a restaurant. The restaurants filed their DJ against Hartford Fire Insurance Company just seven days after Napa County issued a Shelter at Home Order.1 Chef Keller’s suit comes on the heels of the first such suit by a restaurant seeking to recover business income losses, filed by iconic New Orleans French Quarter restaurant Oceana Grill2 on March 17, just four days after the Louisiana governor issued an order prohibiting gatherings of more than 250 people.
As local governments seek to protect their citizens and prevent an onslaught of cases in area hospitals, they are issuing various “stay home,” “shelter at home,” and similar orders to force social distancing and to help flatten the curve of the growth in COVID-19 cases. Restaurants nationwide are especially hard hit by these orders, as many of these orders contain size limitations on gatherings, which have required that restaurants and bars limit capacity (as in the March 13th Louisiana order). Other such orders require non-essential businesses to “cease all activities in the County” (as in the Napa County Shelter at Home order). The Napa County order does not exempt restaurants as “essential businesses,” except when providing food for take-out or delivery. Other orders, still, directly address restaurants and require them to cease allowing public consumption of food and beverages (as in the subsequent, March 17th Louisiana order).
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
Melanie A. McDonald, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. McDonald may be contacted at mam@sdvlaw.com
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The Administrative Procedure Act and the Evolution of Environmental Law
September 19, 2022 —
Anthony B. Cavender - Gravel2GavelEnacted in 1946, the Administrative Procedure Act (APA) has provided a lasting framework for federal agency rulemaking and adjudication, as well as establishing the power of the federal courts to exercise judicial review over these actions of the federal bureaucracy. The APA is codified at 5 U.S.C. §§ 551–559, and §§ 701-706. There have been very few amendments made to the APA over these years, which indicates that Congress is reasonably satisfied with its administration and implementation.
What follows is an overview of how the APA has been used by the courts to resolve disputes involving the federal agencies, with particular attention being paid to the development of environmental law and practice. While there have been very few amendments to the statute, the courts have been free to enlarge upon the sometimes-opaque text of the APA to, in effect, change the law, even in an era when “textual fidelity” to the language of the statute is the prevalent approach.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Georgia Court of Appeals Holds That Insurer Must Defend Oil Company Against Entire Lawsuit
October 07, 2019 —
Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews KurthThe Georgia Court of Appeals recently affirmed a grant of summary judgment in favor of Mountain Express Oil Company on its breach of contract claim against liability insurer, Southern Trust Insurance Company. Empire Petroleum brought claims against Mountain Express for breach of contract, injunctive relief, and libel or slander, among others. Mountain Express sought a defense to that lawsuit under its insurance policy with Southern Trust. Southern Trust contended that the insurance policy did not cover Empire’s non-libel/slander claims, and therefore reimbursed Mountain Express for only a portion of its attorneys’ fees. After the Empire lawsuit settled, Mountain Express sued Southern Trust for breach of contract and bad faith for failing to pay the remaining defense costs, contending that Southern Trust had a duty to defend the entire lawsuit.
The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to Mountain Express on its breach of contract claim. Citing policy language stating that “[the insurer] will have the right and duty to defend the insured against any ‘suit’ seeking those damages,” the court held that Southern Trust was obligated to defend the entire lawsuit. Specifically, in reaching that conclusion, the court noted that by agreeing to defend any “suit,” not any “claim,” Southern Trust obligated itself to defend the entire lawsuit if any claim could be covered under the policy. Accordingly, Southern Trust breached the policy when it only agreed to defend some of the claims against its insured.
Reprinted courtesy of
Lawrence J. Bracken II, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth and Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
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The Contract Disputes Act: What Every Federal Government Contractor Should Know
February 07, 2018 —
Sarah K. Carpenter – Smith Currie BlogClaims on construction projects are unpleasant, but sometimes unavoidable. Contract with the federal government and you are by statute and by contract required to resolve any and all disputes under the Contract Disputes Act. So what is the Contract Disputes Act? This article sets forth basic information all federal government contractors should know when faced with the necessity of making or defending a claim on a federal project.
What Is the Contract Disputes Act?
The Contract Disputes Act of 1978 (CDA or Act) was enacted by Congress to implement a comprehensive statutory scheme for the resolution of government contract claims. The CDA provides a framework for asserting and handling claims by either the government or a contractor. All disputes under the CDA must be submitted to either the U.S Court of Federal Claims or to an administrative board of contract appeals. The vast majority of board cases are handled by either the Armed Services Board of Contract Appeals or the Civilian Board of Contract Appeals. The ASBCA is generally responsible for deciding appeals from decisions of contracting officers in the Department of Defense, the Department of the Army, the Department of the Navy, NASA, and when specified, the CIA. The CBCA hears disputes from all other executive agencies except the United States Postal Service (USPS), the Postal Rate Commission, and the Tennessee Valley Authority.
The USPS is served by the Postal Service BCA. In addition, the Government Accountability Office Contract Appeals Board handles contract disputes arising in the legislative branch, and the Office of Dispute Resolution for Acquisition handles contract disputes and bid protests arising out of Federal Aviation Administration procurements.
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Sarah K. Carpenter, Smith Currie
Court Clarifies Sequence in California’s SB800
December 20, 2012 —
CDJ STAFFAs California’s Right-To-Repair law, SB800, nears its ninth birthday, it has remained “largely untested in the legal system” as noted by Megan MacNee of Wood, Smith, Henning & Berman LLP on the site RealEstateRama. She writes that some homeowners have requested documents prior to filing a claim, which she describes as an attempt to “game the system,” and “analogous to requiring a party to litigation to comply with discovery before a complaint is filed.”
The court determined that homeowners may not request documents from the builder until they have actually filed a claim. The court noted that SB800 lacks any clear indication that homeowners may request documents before filing a claim (and also does not indicate that a builder would have to provide documents in these circumstances). The court concluded that the section that sets up the prelitigation procedures occurs before they section on documents discovery. “Because the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.”
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