Whose Lease Is It Anyway: Physical Occupancy Not Required in Landlord-Tenant Dispute
February 07, 2018 —
Afua Akoto – SDV Case Alert In September 2017, a Texas Federal district judge ruled that that Personal and Advertising Injury coverage in a CGL policy did not require physical occupancy in a landlord-tenant dispute.
In the underlying lawsuit, restaurant owner Ziggy Gruber alleged that John Dunn, the landlord of a Houston shopping center, wrongfully interfered with his right of occupancy at the shopping center by failing to complete the negotiation of a lease and preventing his occupancy of the space. Gruber further alleged that he had acquired a direct interest in the premises and became a rightful tenant but as a result of Dunn’s interference, he was never able to open his restaurant.
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Afua Akoto, Saxe Doernberger & Vita, P.C. Ms. Akoto may be contacted at
asa@sdvlaw.com
The “Up” House is “Up” for Sale
May 07, 2015 —
Garret Murai – California Construction Law BlogYou might remember the 2009 Pixar/Disney 3-D animated movie “Up,” about an aging widower, Carl Frederickson, who learns to let go of his past and live his dream of moving he and his beloved late wife’s “clubhouse” to a cliff overlooking Paradise Falls in Venezuela where the once young couple’s hero, Charles Muntz, a famous but now disgraced explorer, was said to have discovered the skeleton of a rare bird which skeptics alleged was fabricated.
In the movie, the “clubhouse” is integral to the plot. In the opening scenes of the movie the audience learns that the clubhouse, which had been Mr. Frederickson’s deceased wife’s clubhouse that the couple later turned into their home, is sitting in the middle of a construction zone because old Mr. Frederickson has refused to sell his house to a developer who has proceeded to build around his house anyway. When a large loader knocks over his mailbox and a construction worker tries to fix it, Mr. Frederickson struggles with the worker not wanting him to touch any of his memories, and in the process inadvertently strikes the man with his cane. Later, in court, Mr. Frederickson learns that he has to leave the house and go to a retirement home. Apparently, justice is quick and decisive in their town. However, instead of going to a retirement home peaceably, codgy Mr. Frederickson rigs the clubhouse with thousands of balloons and proceeds to fly away, home and all. And, so the movie begins.
Soon, however, what some have called the real life “Up house” will be sold. And the story behind the house is about as a interesting as its movie counterpart. And, because we lawyers are into disclosures, I will disclose that “counterpart” is more accurate than “adaption,” since the movie Up was in production before the events giving rise to the real life Up house took place.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Contractor’s Claim for Interest on Subcontractor’s Defective Work Claim Gains Mixed Results
April 27, 2020 —
John J. Gazzola, Associate, Pepper Hamilton LLP - ConsensusDocsThis case concerns calculation of a damages award to a general contractor, Skanska USA Building, Inc., on its claim for breach of contract against its masonry subcontractor, J.D. Long Masonry, Inc., arising from Long’s faulty construction of a masonry façade at a medical research facility in Baltimore. When the façade collapsed and Long failed to repair it, Skanska hired a replacement subcontractor, C.A. Lindman, to remediate Long’s defective work and filed suit against Long to recover the resulting damages. After the court granted Skanska’s motion for summary judgment as to liability, Skanska moved for summary judgment on the issue of damages, relying on the indemnification provision of the subcontract to seek compensatory damages, pre- and post-judgment interest, and litigation fees. In the subcontract, Long agreed to indemnify and hold Skanska harmless from all claims, losses, costs and expenses, including attorneys’ fees, arising before or after completion of Long’s work, caused by, arising out of, resulting from, or occurring in connection with Long’s performance of the work or breach of the subcontract.
The court first applied the terms of this provision to award Skanska compensatory damages, holding that Skanska was, as a matter of law, entitled to recover the amount of the Lindman subcontract and general conditions incurred to supervise remediation of Long’s work. The court, however, denied Skanska’s claim for pre-judgment interest on the entirety of these damages. Skanska asserted that it was entitled to pre-judgment interest on the full award, calculated from the date on which it first paid Lindman. The court disagreed, explaining that, under Maryland law, a claimant is entitled to an award of pre-judgment interest as of right only when the amount due is certain, definite and liquidated by a specific date prior to judgment. The court reasoned that, because much of the Lindman subcontract value was composed of later-executed change orders, an award of pre-judgment interest could not be uniformly calculated back to the date of Skanska’s first payment to Lindman. And moreover, because Skanska continued to withhold sums due to Lindman pending resolution of certain issues, awarding Skanska pre-judgment interest on amounts it had not yet paid would result in a “windfall” to Skanska because there was no “use of income” loss to be compensated.
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John J. Gazzola, Pepper Hamilton LLPMr. Gazzola may be contacted at
gazzolaj@pepperlaw.com
Like Water For Chocolate: Insurer Prevails Over Chocolatier In Hurricane Sandy Claim
November 08, 2017 —
Afua S. Akoto - Saxe Doernberger & Vita, P.C.Recently, a New Jersey Magistrate ruled that an insurer did not have to provide coverage for a chocolatier’s property damage and business interruption losses due to Hurricane Sandy.
Madeline Chocolate Novelties Inc. (Madeline), a family-owned chocolatier in Queens Rockaway Beach, held a one-year all-risk policy with Great Northern Insurance (Great Northern). The policy contained a flood exclusion and a windstorm endorsement. When Hurricane Sandy hit in October 2012, Madeline suffered extensive damage and ceased operations during the ensuing holiday season. The chocolatier claimed $40 million in property damage and $13.5 million in business interruption losses and sought coverage under its policy. Great Northern paid just under $4 million and denied the remainder of the claim, citing the policy’s flood exclusion.
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Afua S. Akoto, Saxe Doernberger & Vita, P.C.Ms. Akoto may be contacted at
asa@sdvlaw.com
Beverly Hills Voters Reject Plan for Enclave's Tallest Building
November 10, 2016 —
James Nash – BloombergA costly battle over development in Beverly Hills, California, ended with voters rejecting a hotel owner’s proposal to combine two planned condominium towers into a single building that would have loomed over the wealthy Southern California enclave.
With 44 percent in support and 56 percent against, Beverly Hills voters turned down plans by Beny Alagem, who owns the Beverly Hilton and is building an adjacent 170-room Waldorf Astoria, to develop a single 26-story tower next to the hotels, instead of eight- and 18-story buildings that were approved by the city council and a voter referendum in 2008. Alagem’s plan sets aside the remaining 1.7 acres (0.7 hectares) for a public park and gardens.
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James Nash, Bloomberg
Contractors Liable For Their Subcontractor’s Failure To Pay Its Employees’ Wages And Benefits
November 01, 2022 —
Edward O. Pacer & David J. Scriven-Young - ConsensusDocsRecently, Illinois Governor J.B. Pritzker signed two House Bills that amend the Illinois Wage Payment & Collections Act, 820 ILCS 115 et. seq. (“Wage Act”), to provide greater protection for individuals working in the construction trades against wage theft in a defined class of projects. Pursuant to this new law, every general contractor, construction manager, or “primary contractor,” working on the projects included in the Bill’s purview will be liable for wages that have not been paid by a subcontractor or lower-tier subcontractor on any contract entered into after July 1, 2022, together with unpaid fringe benefits plus attorneys’ fees and costs that are incurred by the employee in bringing an action under the Wage Act. This new wage theft law follows several other states that have considered and passed similar legislation.
These amendments to the Wage Act apply to a primary contractor engaged in “erection, construction, alteration, or repair of a building structure, or other private work.” However, there are important limitations to the amendment’s applicability. The amendment does not apply to projects under contract with state or local government, or to general contractors that are parties to a collective bargaining agreement on a project where the work is being performed. Additionally, the amendment does not apply to primary contractors who are doing work with a value of less than $20,000, or work that involves only the altering or repairing of an existing single-family dwelling or single residential unit in a multi-unit building.
Reprinted courtesy of
Edward O. Pacer, Peckar & Abramson, P.C. (ConsensusDocs) and
David J. Scriven-Young, Peckar & Abramson, P.C. (ConsensusDocs)
Mr. Pacer may be contacted at epacer@pecklaw.com
Mr. Scriven-Young may be contacted at dscriven-young@pecklaw.com
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Court Adopts Magistrate's Recommendation to Deny Insurer's Summary Judgment Motion in Collapse Case
June 06, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe district court accepted the magistrate's recommended ruling denying the insurer's motion for summary judgment on breach of contract and bad faith claims in a case involving collapse. Jang v. Liberty Mut. Fire Ins. Co., 2018 U.S. Dist. LEXIS 51880 (D. Conn. March 27, 2018).
After purchase of their home, the insureds' inspector found large cracks in the foundation. Liberty denied coverage, contending that the basement wall was collapsing due to settling earth or movement. The insureds' expert later found the foundation had cracks from the oxidation of iron sulfide minerals in the foundation's concrete. The insureds sued for breach of contract, bad faith, and violations of the Connecticut Unfair Insurance Practice Act and the Unfair Trade Practices Act.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Federal Court Strikes Down 'Persuader' Rule
November 23, 2016 —
Pam Hunter McFarland – Engineering News-RecordIn a victory for construction industry groups, a federal court has permanently blocked a U.S. Dept. of Labor rule requiring attorneys and other outside groups to disclose publicly that they provide advice to employers on how to comply with federal labor laws.
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Pam Hunter McFarland, Engineering News-RecordMs. McFarland may be contacted at
mcfarlandp@enr.com