Columbus Ohio Building Expert Directory

Do Not Pass Go! Duty to Defend in a Professional Services Agreement (law note)

April 03, 2019 — Melissa Dewey Brumback - Construction Law in North Carolina
Recently a client asked me to review a contract for his Firm. The Owner, who had prepared the draft, had inserted a rather stringent “duty to defend” clause. As I told my client, a duty to defend clause is not a good idea for a couple of reasons. First, if you agree to provide a defense, what that means is that you are footing the bill for the Owner if the Owner is sued by another party. Think about that for a minute. You are paying legal fees for someone else’s legal defense. You may or may not be able to direct the litigation or have a say in who is hired. Can you say open check book? Secondly, and more importantly, the duty to defend is almost never insurable. What that means is that your professional liability carrier will not be footing the bill—your Firm will be doing it. This is not a case of adding the Owner as an additional insured, so do not confuse the two. Agreeing to a duty to defend is an extremely burdensome, and potentially costly, mistake. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

White and Williams Announces Lawyer Promotions

May 25, 2020 — White and Williams LLP
White and Williams is pleased to announce the election of Vincent Barbera and James Burger to the partnership. The firm has also promoted Victoria Fuller, Phyllis Ingram, William Johnston, Eric Porter, Gus Sara, Jenifer Scarcella, Lian Skaf and Brett Tishler from associate to counsel. The newly elected partners and promoted counsel represent the wide array of practices that White and Williams offers its clients, including education, finance, financial lines, insurance coverage, labor and employment, litigation, real estate, and subrogation. These accomplished lawyers have earned this advancement based on their contributions to the firm and their practices. “We are pleased to elect these two lawyers to the partnership and promote eight exceptional associates to counsel. The group demonstrates the legal talent and breadth of services White and Williams offers clients,” said Patti Santelle, Managing Partner of the firm. “The contributions of these lawyers have enhanced the growth and reputation of our firm and reflect our deep commitment to clients. We look forward to their continued success.” Read the court decision
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Reprinted courtesy of White and Williams LLP

CSLB “Fast Facts” for Online Home Improvement Marketplaces

August 20, 2018 — Garret Murai - California Construction Law Blog
As more and more online home improvement marketplaces like Angie’s List come online, questions have arisen as to whether such online marketplaces must hold a contractor’s license. The California Contractor’s State License Board has put together a “Fast Facts” sheet to help online home improvement marketplaces navigate the ins and outs of contractor’s license requirements, salesperson requirements, and advertising requirements. The short answer is that these marketplaces do not need a contractor’s license as long as the customer is contracting directly with the listed contractors (not the marketplace). Here’s the slightly longer explanation: July 20, 2018 CSLB #18-10 CSLB Hopes to Clear Up Confusion about License and Contracting Requirements for Online Home Improvement Marketplace Companies SACRAMENTO – Over the past few months, the Contractors State License Board (CSLB) has been addressing emerging issues involving online marketplaces and contractor referral websites. In its most basic form, online marketplaces are e-commerce websites that link consumers to products and/or services that are provided by multiple third parties. In these situations the e-commerce operator processes the transactions. Many referral websites charge contractors for leads. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Northern District of Mississippi Finds That Non-Work Property Damages Are Not Subject to AIA’s Waiver of Subrogation Clause

July 11, 2018 — Shannon M. Warren - The Subrogation Strategist
In recent months, the Northern District of Mississippi has grappled with how to interpret waivers of subrogation in American Institute of Architects (AIA) construction industry contracts and, specifically, how they apply to work versus non-work property. The distinction between work and non-work property has been commonly litigated and remains a hotly debated topic when handling subrogation claims involving construction defects. In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing, 2018 U.S. Dist. LEXIS 23515 (February 12, 2018), a fire consumed the entire insured risk when one of the defendants was performing window restoration services. Subsequently, the insured’s subrogated insurer filed suit against several defendants involved in the construction project at issue. In response to the defendants’ motion for summary judgment, the District Court for the Northern District of Mississippi considered whether the waiver of subrogation clause in AIA contract form A201-2007 precluded the subrogated insurer from recovering damages from the defendants. The court held that the waiver of subrogation provision contained in AIA document A201-2007 barred the insurer from recovering for damages to the work itself, but did not apply to non-work property. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

Construction Defect Claims are on the Rise Due to Pandemic-Related Issues

April 25, 2022 — Beverley BevenFlorez – CDJ Staff
According to a recent New York Times article, pandemic-related issues such as “stop-and-start construction, global supply chain issues, pressure from lenders and yo-yoing housing prices” has caused an increase in construction defect suits for new apartment developments: “Complaints and legal claims are already emerging, signaling that a confluence of all factors amid the Covid crisis could continue to be a problem for new construction — from entry-level studios to top-tier penthouses — for years to come, according to lawyers and development consultants.” A Times analysis of Department of Buildings data by Marketproof demonstrated an increase in complaints beginning March 1st, 2020: “During the first year of the pandemic, new residential buildings recorded an average of five complaints per building, a 46 percent jump from the same period the previous year.” Steven D. Sladkus, a partner at Schwartz Sladkus Reich Greenberg Atlas told the Times that his “'phone’s been ringing off the hook' with complaints from homeowners in new condo buildings” regarding “heating problems, poor sound insulation, fire safety issues and faulty elevators.” Developers have faced a variety of pandemic-related challenges including a disrupted supply chain, shut downs, shipping delays, labor shortages, and increased material prices. In 2020, the lack of availability of vaccines caused some construction to halt: “Suddenly one guy calls in sick and the whole crew of electricians can’t show up,” Steven Zirinsky, co-chair of the building codes committee at the New York chapter of the American Institute of Architects told the Times. Read the court decision
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Wisconsin Supreme Court Upholds Asbestos Exclusion in Alleged Failure to Disclose Case

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
In the case Phillips v. Parmelee, the Wisconsin Supreme court ruled “that an asbestos exclusion in a liability policy barred a duty to defend and indemnify a building seller for claims that the seller failed to disclose that the building contained asbestos,” according to an article in Mondaq by Ruth S. Kochenderfer and Deanna P. Cook, both from Steptoe & Johnson LLP. The policyholder received a building report stating that the “heating ducts likely contained asbestos,” however, the buyers alleged that the policyholder never provided them the report. After the buyers purchased the property, contractors “cut through the heating ducts, unknowingly dispersing asbestos throughout the building.” According to Kochenderfer and Cook’s article, “The insurer intervened in the buyers' suit and sought summary judgment against the policyholder and buyers, arguing that an asbestos exclusion precluded coverage for the buyers' suit against the policyholder.” The buyers took the case to the Wisconsin Supreme court and “attacked the asbestos exclusion,” but the court rejected every argument. Kochenderfer and Cook stated that the “decision is significant because three courts, including Wisconsin's highest court, squarely rejected attempts to narrow a broad, clearly-worded asbestos exclusion. Further, it confirms that such an asbestos exclusion will apply to all causes of action, including an alleged failure to disclose the presence of asbestos.” Read the court decision
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Business and Professions Code Section 7031, Demurrers, and Just How Much You Can Dance

February 14, 2022 — Garret Murai - California Construction Law Blog
Fights between owners and contractors under Business and Professions Code section 7031 can get nasty and detailed. An owner’s remedy under Section 7031, as courts have stated, can be “harsh[ ],” “draconian” and even “unjust” and damages can be significant. Panterra GP, Inc. v. Superior Court, 2022 WL 289216 (2022), a case decided this past month, is no different. It even involved a disagreement between the very justices deciding the case. The Panterra GP Case Panterra GP, Inc. was a licensed general contractor. Rosedale Bakersfield Retail VI, LLC and Movie Grill Concepts XX, LLC intended to hire Panterra GP to perform renovation work at the Studio Movie Grill in Bakersfield, California, but drafted a construction contract mistakenly listing Panterra Development Ltd., LLP as the contractor on the project. Panterra GP was the general partner of Panterra Development. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

California Bid Protests: Responsiveness and Materiality

January 06, 2016 — Garret Murai – California Construction Law Blog
It can be a rough and tumble world out there. And in the case of public works construction in California, this includes bid disputes. California’s competitive bidding laws require that a public works contract be awarded to the “lowest responsible bidder.” However, as we’ve mentioned before, there are two requirements which must be satisfied for a bidder to be determined to be the lowest responsible bidder: (1) the awarded bidder’s bid must be “responsive”; and (2) the awarded bidder must be “responsible.” In a case decided this past month, DeSilva Gates Construction v. Department of Transportation, Case No. C074521 (December 14, 2015), the California Court of Appeals for the Third District addressed the first of these two requirements, whether two bids on $34 million highway widening project were responsive, which in turn involves a two-step process: (1) whether the bids were responsive or not; and (2) if not, whether the variance in the bids were “material” or “immaterial.” Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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