The Value of Photographic Evidence in Construction Litigation
April 26, 2021 —
Marie Mueller - Construction ExecutiveIf a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts.
The Value of Photographic Evidence in Construction Litigation
Consider the following examples:
- A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline.
- A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.
Reprinted courtesy of
Marie Mueller, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Mueller may be contacted at
mmueller@verrill-law.com
Contractual “Pay if Paid” and “Pay when Paid” Clauses? What is a California Construction Subcontractor to Do?
November 29, 2021 —
William L. Porter - Porter Law GroupThe Situation California Construction Subcontractors Face in Obtaining Payment:
California construction subcontractors find themselves faced with a significant payment issue every time they are asked to sign a subcontract on a major project. Invariably, the subcontract the prime contractor presents to the subcontractor for signature will contain a clause by which the prime contractor imposes a condition on payment from the prime contractor to the subcontractor. The condition will be either one or the other of two general types. Either the prime contractor will specify that it never has to pay the subcontractor if the prime contractor itself is not paid by the owner (a “pay-if-paid” clause), or the prime contractor will pay the subcontractor only after the prime contractor has first exhausted all its efforts to obtain payment from the owner through litigation, arbitration or otherwise, possibly delaying payment to subcontractors by months or even years (a “pay-when-paid” clause).
Goal of the Article:
The goal of this article is to draw a distinction between the pay-if-paid and pay-when-paid clauses, discuss the legality of these clauses in California, the problems these clauses create for subcontractors, advise the reader of helpful recent legal developments in this area of law, address the possibility of a further legislative remedy to address the issue, and discuss what the subcontractor might do to protect itself while awaiting a legislative remedy that may or may not ever arrive.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Flood Sublimits Do Not Apply to Loss Caused by Named Windstorm
May 07, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe New Jersey Superior Court considered whether recovery for storm surge was limited by the policy's sublimit for loss caused by flood. Public Serv. Enter. Group, Inc. v. Ace Am. Ins. Co., 2015 N. J. Super. Unpub. LEXIS 620 (N.J. Super. Ct. Law Div. March 23, 2015).
Storm surge from Superstorm Sandy inundated and damaged Public Service Enterprise Group, Inc.'s (PSEG) property, including eight large generating stations. PSEG had coverage of $1 billion under policies with defendant carriers. There was no sublimit in the policies for "named windstorms," other than named windstorms in Florida. A $250 million sublimit appeared in the policies for losses caused by "flood."
The carriers paid only a portion of PSEG's claim. The total damages exceeded $500 million.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star
July 06, 2020 —
Balestreri Potocki & HolmesThe law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders
Thomas A. Balestreri, Jr. and
Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate
Robin H. Smith has been named a 2020 Rising Star.
Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list.
Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success.
Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas.
Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims.
Super Lawyers, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com.
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Balestreri Potocki & Holmes
Home Prices in 20 U.S. Cities Rose at Faster Pace in January
April 01, 2015 —
Nina Glinski – Bloomberg(Bloomberg) -- Home prices in 20 U.S. cities appreciated at a faster pace in the year ended in January, indicating the residential real-estate market continues to firm.
The S&P/Case-Shiller index of property values increased 4.6 percent from January 2014, the biggest gain since September, after rising 4.4 percent the prior month, a report from the group showed Tuesday in New York. That matched the median projection of 28 economists surveyed by Bloomberg. On a national scale, prices rose 4.5 percent from January 2014.
A dearth of supply will continue to drive up home prices heading into the busy spring selling season as demand is spurred by rising rents. Builders like KB Home expect to post strong revenue in the warmer months ahead, based on early signs of strength, particularly among first-time buyers.
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Nina Glinski, BloombergMs. Glinski may be contacted at
nglinski@bloomberg.net
Elyria, Ohio, to Invest $250M to Halt Illegal Sewage into Black River
December 18, 2022 —
Jim Parsons - Engineering News-RecordElyria, Ohio, will invest nearly $250 million in capital improvement projects over the next 20 years to eliminate longstanding discharges of untreated sewage into the Black River, 10 miles upstream from Lake Erie. The plan is part of a consent decree negotiated with federal and state regulators following more than 1,000 illegal discharges from the city's sewer system into the river or its tributaries since 2011.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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2018 Construction Outlook: Mature Expansion, Deceleration in Some Sectors, Continued Growth in Others
January 24, 2018 —
Garret Murai – California Construction Law BlogU.S. construction starts are expected to increase 3 percent to $765 billion in 2018 according to
Dodge Data & Analytics in its 2018 Dodge Construction Outlook. But we may be approaching the end of a construction boom, at least in certain industry segments.
The construction industry as a whole is in a “mature stage of expansion,” indicates Robert Murray, Chief Economist for Dodge Data & Analytics. “After rising 11% to 13% per year from 2012 through 2015, total construction starts advanced a more subdued 5% in 2015. An important question entering 2017 was whether the construction industry had the potential for further expansion,” explained Murray.
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Garret Murai, Wendel, Rosen, Black, Dean, LLP Mr. Murai may be contacted at
gmurai@wendel.com
Wait! Don’t Sign Yet: Reviewing Contract Protections During the COVID Pandemic
April 13, 2020 —
Danielle S. Ward - Balestreri Potocki & HolmesAs the circumstances of the COVID pandemic change day by day, and we all rush to keep business moving where and when we can, companies should consider hitting the “pause button” before renewing or executing any new contracts. Developing contracts often takes considerable time and expense, and companies are not in the habit of reworking them often. A change in law may prompt a company to revisit their contract terms, but otherwise business is often carried out with a standard form contract for a period of years. With the COVID pandemic affecting nearly every business and industry, life is not business as usual, and companies should make sure their contracts consider what previously seemed like an unforeseeable event.
Force Majeure clauses are included in many contracts to excuse contract performance when made impossible by some unforeseen circumstance. These clauses typically fall under two categories: general and specific. General force majeure clauses excuse performance if performance is prevented by circumstances outside the parties’ control. By contrast, specific force majeure clauses detail the exhaustive list of circumstances (acts of god, extreme weather, war, riot, terrorism, embargoes) which would excuse contract performance. Force majeure clauses are typically interpreted narrowly. If your contract has a specific clause and pandemic or virus is not one of the listed circumstances it may not apply. Whether a particular existing contract covers the ongoing COVID pandemic will vary depending on the language of the contract.
Force majeure clauses previously made headlines when the great economic recession hit in 2008. A number of courts held that simple economic hardship was not enough to invoke force majeure. The inability to pay or lack of desire to pay for the contracted goods or services did not qualify as force majeure. In California, impossibility turns on the nature of the contractual performance, and not in the inability of the obligor to do it. (Kennedy v. Reece (1964) 225 Cal. App. 2d 717, 725.) In other words, the task is objectively impossible not merely impossible or more burdensome to the specific contracting party.
California has codified “force majeure” protection where the parties haven’t included any language or the circumstances in the clause don’t apply to the situation at hand. Civil Code section 1511 excuses performance when “prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.” (Civ. Code § 1511.) What qualifies as a “superhuman cause”? In California, the test is whether under the particular circumstances there was such an insuperable interference occurring without the party's intervention as could not have been prevented by the exercise of prudence, diligence and care. (Pacific Vegetable Oil Corp. v. C. S. T., Ltd. (1946) 29 Cal.2d 228, 238.)
If you find yourself in an existing contract without a force majeure clause, or the statute does not apply, you may consider the doctrine of frustration of purpose. This doctrine is applied narrowly where performance remains possible, but the fundamental reason the parties entered into the contract has been severely or substantially frustrated by an unanticipated supervening circumstance, thus destroying substantially the value of the contract. (Cutter Laboratories, Inc. v. Twining (1963) 221 Cal. App. 2d 302, 314-15.) In other words, performance is still possible but valueless. Note this defense is not likely to apply where the contract has simply become less profitable for one party.
Now that COVID is no longer an unforeseeable event, but rather a current and grave reality, a party executing a contract today without adequate protections may have a difficult time proving unforeseeability. Scientists are not sure whether warm weather will suppress the spread of the virus, as it does with the seasonal flu, but to the extent we get a reprieve during the summer we may see a resurgence of cases this Fall or Winter. Companies should take care in reviewing force majeure clauses, and other clauses tied to timely performance such as delay and liquidated damages before renewing or executing new contracts.
Your contract scenario may vary from the summary provided above. Please contact legal counsel before making any decisions. During this critical time, BPH’s attorneys can be reached via email to answer your questions.
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Danielle S. Ward, Balestreri Potocki & HolmesMs. Ward may be contacted at
dward@bph-law.com
