Fairfield Connecticut Building Expert Directory

New Strategy for Deterring Intracorporate Litigation?: Delaware Supreme Court Supports Fee-Shifting Bylaws

May 13, 2014 — Marc Casarino and Lori Smith – White and Williams LLP
A fee-shifting bylaw of a Delaware non-stock corporation is not facially invalid according to the Delaware Supreme Court’s May 8, 2014 opinion in ATP Tour, Inc. v. Deutscher Tennis Bund. In this case, ATP Tour, Inc., a non-stock membership corporation (“ATP”) governed by a seven member board, had adopted a bylaw provision which provided that current and former members of ATP would be responsible for the litigation costs arising out of any litigation initiated by any such member against ATP or any of the other members in which the initiating party did not obtain a judgment on the merits that substantially achieved in substance and amount the full remedy sought. The bylaw provision had been adopted, in accordance with ATP’s charter, by the Board unilaterally without any consent from the members. The members had agreed at the time they joined ATP to be bound by the bylaws, as amended from time to time. Two members of ATP initiated a suit against ATP relating to certain actions taken with respect the ATP’s tournament schedule and format alleging both federal antitrust claims and Delaware fiduciary duty claims but did not prevail on any of their claims. ATP then moved to recover its legal fees relating to such actions. Reprinted courtesy of Marc Casarino, White and Williams LLP and Lori Smith, White and Williams LLP Mr. Casarino may be contacted at casarinom@whiteandwilliams.com; Ms. Smith may be contacted at smithl@whiteandwilliams.com Read the court decision
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Washington Supreme Court Sides with Lien Claimants in Williams v. Athletic Field

September 30, 2011 — Douglas Reiser, Builders Council Blog

The Washington Supreme Court issued their opinion today on Williams v. Athletic Field, perhaps the most talked about construction law case in the past few years. I have discussed this case exhaustively here on Builders Counsel. Today we have a resolution.

In an unanimous opinion issued today, the high court sided with lien filers who followed a sample form provided in RCW 60.04.091. Additionally, the court found that a lien company - and presumably other persons - could sign the lien for the lien claimant, as an agent, without invalidating the lien.

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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Congratulations to San Diego Partner Alex Giannetto and Senior Associate Michael Ibach on Settling a Case 3 Weeks Into a 5-Week Trial!

April 15, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Alex Giannetto and Senior Associate Michael Ibach of BWB&O’s San Diego office started a trial in San Diego set to last at least five weeks. Plaintiffs alleged causes of action of negligence, trespass and nuisance against BWB&O’s client, arguing the owner/property manager did not properly handle alleged overwatering of the front yard, allegedly resulting in a landslide impacting 8 homes on a City slope in Carlsbad. Cross-Complainant City alleged independent negligence to fix the slope it owned and controlled as well as various indemnity-based causes of action against BWB&O’s client. Plaintiffs claimed over $24 million in damages, while Cross-Complainant placed sole blame for the incident on BWB&O’s client around $6 million. Heading into trial, it was made clear that neither Plaintiffs nor Cross-Complainant would accept anything less than 7-figures to settle BWB&O’s client out of the case. In the first week of trial, BWB&O was able to leverage motions in limine, opening statements, and cross-examinations to secure a dismissal of three of the four causes of action alleged by Plaintiff that were associated with pain & suffering. In the second week of trial, BWB&O secured a dismissal of Cross-Complainant’s negligence cause of action paving the way for a settlement with Plaintiffs. Leveraging the threat of a non-suit when Plaintiffs rested, BWB&O secured resolution of Plaintiffs’ complaint for a fraction of what had previously been sought. Finally, BWB&O was able to secure a dismissal of the remaining indemnity-based causes of action in the cross-complaint and fully extract the client from the matter. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

As Natural Gas Expands in Gulf, Residents Fear Rising Damage

July 11, 2022 — The Associated Press (Cathy Bussewitz & Martha Irvine) - Bloomberg
Lake Charles, Louisiana (AP) -- The front lawn of Lydia Larce’s home is strewn with debris: Remnants of cabinets and chunks of pink shower marble lie between dumpsters. She lives in a FEMA trailer out back, her home in shambles more than a year after Hurricane Laura tore through Lake Charles. Larce, like many in Southwest Louisiana, has what she calls “storm PTSD.” Tornado warnings trigger anxiety. She fidgets and struggles to sleep. "The fear and the unknown — it has me on an edge,” Larce said. “I’m scared.” A string of devastating hurricanes has torn through this region in recent years. Nationally, too, there have been more Category 4 and 5 hurricane landfalls in the past five years than in the previous 50 years combined. Larce and her neighbors know they are on the front lines of climate change. Her region is now the epicenter of a trend that she fears will make those disasters even more destructive. Developers plan to build a series of liquefied natural gas export facilities across Southwest Louisiana, already the heart of the industry. Even in a state with a heavy industrial base, these facilities are among the largest emitters of greenhouse gases in Louisiana. Read the court decision
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Reprinted courtesy of Bloomberg

Hawaii Federal District Court Denies Brokers' MSJ on Duties Owed In Construction Defect Case

October 19, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court for the District of Hawaii denied the brokers' motion for summary judgment seeking dismissal from claims that they inadequately advised the insured of the law regarding construction defects in Hawaii. Am Auto. Ins. Co. v. Haw. Nut & Bolt, Inc., 2017 U.S. Dist. LEXIS 148571. Safeway sued Hawaii Nut & Bolt (HNB) and others for construction defects in a newly constructed store. The underlying complaint alleged products liability claims against HNB as the distributor of the "VersaFlex Coating System." HSB had represented that the coating system was adequate for its intended use. The underlying complaint alleged failure of the VersaFlex Coating System in waterproofing the roof deck of the store. After the store opened, water leaks from the roof deck appeared. Safeway alleged they were caused by the cracks and failures in the waterproof membrane in the roof deck. HNB notified its insurers of the claims. The insurers defended HNB during the litigation subject to reservation of rights letters. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

A License to Sue: Appellate Court Upholds Condition of Statute that a Contracting Party Must Hold a Valid Contractor’s License to Pursue Action for Recovery of Payment for Contracting Services

June 21, 2017 — Omar Parra & Jesse M. Sullivan - Haight Brown & Bonesteel LLP
California Business & Professions Code section 7031(a) requires a party to have contractor’s license in order to maintain an action for compensation for services performed for which a contractor’s license is needed. In Phoenix Mechanical Pipeline, Inc. v. Space Exploration Technologies Corp., No. B269186 (2017 WL 2544856) (Cal. Ct. App. June 13, 2017), the Court of Appeal for the Second Appellate District considered the scope of this statute in denying, in part, Phoenix Mechanical Pipeline, Inc.’s (“Phoenix Pipeline”) appeal of a trial court ruling granting Space Exploration Technologies Corporation’s (“SpaceX”) demurrer to Phoenix Pipeline’s second amended complaint, without leave to amend. Phoenix Pipeline filed the underlying lawsuit for, among other claims, breach of contract and breach of the duty of good faith and fair dealing arising from an agreement with SpaceX for Phoenix Pipeline to perform various plumbing, concrete removal and electrical services. Phoenix Pipeline alleged SpaceX paid for such services from 2010 to October 2013, but failed to pay Phoenix for services performed from October 2013 to August 2014, totaling just over $1,000,000. According to Phoenix Pipeline, this work was performed pursuant to a series of invoices, which constituted individual agreements between SpaceX and Phoenix Pipeline. Reprinted courtesy of Omar Parra, Haight Brown & Bonesteel LLP and Jesse M. Sullivan, Haight Brown & Bonesteel LLP Mr. Parra may be contacted at oparra@hbblaw.com Mr. Sullivan may be contacted at jsullivan@hbblaw.com Read the court decision
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More Hensel Phelps Ripples in the Statute of Limitations Pond?

February 03, 2020 — Christopher G. Hill - Construction Law Musings
As is always the case when I attend the Virginia State Bar’s annual construction law seminar, I come away from it with a few posts on recent cases and their implications. The first of these is not a construction case, but has implications relating to the state project related statute of limitations and indemnification issues for construction contracts brought out in stark relief in the now infamous Hensel Phelps case. In Radiance Capital Receivables Fourteen, LLC v. Foster the Court considered a waiver of the statute of limitations found in a loan contract. The operative facts are that the waiver was found in a Continuing Guaranty contract and that the default happened more than 5 years prior to the date that Radiance filed suit to enforce its rights. When the defendants filed a plea in bar stating that the statute of limitations had run and therefore the claim was barred, Radiance of course argued that the defendants had waived their right to bring such a defense. The defendants responded that the waiver was invalid in that it violated the terms of Va. Code 8.01-232 that states among other things:

an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

The Circuit Court and ultimately the Supreme Court agreed with the defendants. In doing so, the Virginia Supreme Court rejected arguments of estoppel and an argument that a “waiver” is not a “promise not to plead.” Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Pre-Suit Settlement Offers and Construction Lien Actions

July 21, 2018 — David Adelstein - Florida Construction Legal Updates
It is unfortunate, but in certain matters, a construction lien foreclosure action is not actually driven by the principal amount in dispute. Oh no. Rather, it is driven by attorney’s fees. That’s right. Attorney’s fees. This is true even though Florida applies the significant issues test to determine the prevailing party for purposes of attorney’s fees. However, oftentimes the prospect of attorney’s fees is enough for parties to fear that exposure. There is a 1985 Florida Supreme Court case that I like to cite if applicable, C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177, 1179 (Fla. 1985), that finds, “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29 [a construction lien claim], a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Accord Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (explaining that although contractor is receiving a judgment in his favor, he may not be the prevailing party if the homeowner offered to settle prior to the lawsuit for an amount equal to or greater than the award in the judgment). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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