Seattle Washington Building Expert Directory

Brief Discussion of Enforceability of Anti-Indemnity Statutes in California

September 10, 2014 — William M. Kaufman – Construction Lawyers Blog
California Civil Code Section 2782 has been amended numerous times over the last several years. Essentially, Anti-indemnity statutes may not be fully effective for contracts entered into before January 1, 2009. Some developers and general contractors attempted to comply with the new law, and changed the indemnity provisions of their contracts post January 1, 2006. The time bracket, or zone of danger if you will, is between 1/1/06 and 1/1/09—during those three years California Civil Code §2782 was amended several times. After 1/1/09 Type I indemnity is gone in a residential construction context. The 2005 amendment to Civil Code §2782 rendered residential construction contracts entered into after 1/1/06 containing a Type I indemnity provision in favor of builders unenforceable; The 2007 amendment added contractors not affiliated with the builder to the list of contracting parties who could not take advantage of a Type I indemnity provision; However, the 2008 amendment changed the effective date to 1/1/09, dropped any mention of 2006, and added GCs, other subs, their agents and servants, etc., to the list of possible contracting parties who could not take advantage of a Type I indemnity provision[.] Reprinted courtesy of William M. Kaufman, Lockhart Park LP Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Be Strategic When Suing a Manufacturer Under a Warranty with an Arbitration Provision

October 02, 2023 — David Adelstein - Florida Construction Legal Updates
I’ve said this before, and I’ll say it again: arbitration is a creature of contract. If you don’t want to arbitrate, don’t agree to an arbitration provision as the means to resolve your dispute. Now, with that said, there are times you may not have a choice. An arbitration provision in a warranty from a manufacturer of a product is an example. If you are procuring the product, you are agreeing to the terms of the express warranty. Manufacturers are not negotiating their product warranty on a case-by-case basis considering they are not typically the ones selling the product directly to the end user. This does not mean that is a bad thing. It just means if you elect to sue the manufacturer directly for an alleged product defect or under the terms of the warranty, you should read the warranty and consider the strategic aspect that suing the manufacturer will have on your case. In SICIS North America, Inc. v Sadie’s Hideaway, LLC, 48 Fla.L.Weekly D1581c (Fla. 1st DCA 2023), an owner elected to sue a tile manufacturer, a general contractor, the architect, and a window and door company. One of the arguments the owner raised was that exterior tiles installed were defective. The tiles were procured by the general contractor. The owner sued the general contractor under various theories and sued the tile manufacturer for breaches of warranty and negligence. The general contractor asserted a crossclaim for indemnification against the tile manufacturer. The tile manufacturer moved to compel the owner’s claim and the general contractor’s crossclaim to arbitration since there was an arbitration provision in the warranty documents and the general contractor’s indemnification claim arose from that transaction. The trial court denied the motion to compel arbitration. On appeal, the appellate court reversed:

First, because [the owner] was suing [the tile manufacturer] based upon the written warranty, it was bound by the arbitration provision contained in [the general contractor’s] agreement with [the tile manufacturer]. As the Florida Supreme Court has explained, “[W]hen a plaintiff sues under a contract to which the plaintiff is not a party . . . we will ordinarily enforce an arbitration clause contained in that contract, absent some other valid defense. . . .” . [The owner] had no valid defense against arbitration, a fact which it apparently realized when it voluntarily dismissed its express warranty claim after the notice of appeal and initial brief were filed.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Construction Defect Scam Tied to Organized Crime?

July 31, 2013 — CDJ STAFF
The Las Vegas Review-Journal reports that the initial tip-off came from Scott Canepa, a construction defect attorney who alerted the FBI about Leon Benzer’s activities in taking over homeowner boards. Canepa learned that Nancy Quon was taking part in the scheme and went to the FBI with the information. After FBI officials met with Canepa, they launched an investigation, which they named “Operation GrandMaster.” Although a Benzer associate stated that Benzer claimed not to have ties to organized crime, and according to the Review-Journal, “preferred to think of himself as ‘just a bully,’” the case involves connections to a number of figures with ties to organized crime. Benzer with associated with John V. Spilotro, a lawyer whose uncle was an alleged overseer for Chicago organized crime operating in Las Vegas in the 70s and 80s. Another conspirator, Paul Citelli, reportedly has ties to organized crime in Buffalo. Read the court decision
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CGL Insurer’s Duty To Defend Broader Than Duty To Indemnify And Based On Allegations In Underlying Complaint

April 10, 2019 — David Adelstein - Florida Construction Legal Updates
The duty to defend an insured with respect to a third-party claim is broader than the duty to indemnify the insured for that claim. The duty to defend is triggered by allegations in the underlying complaint. However, an insurer is only required to indemnify its insured for damages covered under the policy. A recent case example demonstrating the duty to defend is broader than the duty to indemnify can be found in Southern Owners Ins. Co. v. Gallo Building Services, Inc., 2018 WL 6619987 (M.D.Fla. 2019). In this case, a homebuilder built a 270-unit condominium project where the units were included in 51-buildings. Upon turnover of the condominium association to the unit owners, the condominium association served a Florida Statutes Chapter 558 Notice of Construction Defects letter. There was numerous nonconforming work spread out among various subcontractor trades including nonconforming stucco work. The homebuilder incurred significant costs to repair defective work and resulting property damage, and relocated unit owners during repairs. The homebuilder then filed a lawsuit against implicated subcontractors. One of the implicated subcontractors was the stucco subcontractor. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Contract Change #8: Direct Communications between Owners and Contractors (law note)

March 28, 2018 — Melissa Dewey Brumback - Construction Law in North Carolina
As the Engineer or Architect of Record, you probably have frequently experienced Owners and Contractors communicating directly, in direct contravention of the language of the contract that requires them to endeavor to route all communications through the design team. With the latest version of the 201, direct communication is now authorized, to recognize both the reality of what was happening on the ground and to recognize that sometimes Owners and Contractors may need to communicate without waiting for the design team. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina

COVID-19 Pandemic Preference Amendments to Bankruptcy Code Benefiting Vendors, Customers, Commercial Landlords and Tenants

May 03, 2021 — Andrew Arthur & Steven Ostrow - White and Williams LLP
Over the last three months, Congress has passed major pieces of legislation primarily in response to the COVID-19 pandemic, including the Consolidated Appropriations Act of 2021 (CAA), which was signed into law on December 27, 2020. In addition to funding the federal government and a second round of pandemic relief, the CAA contains several amendments to the Bankruptcy Code. One of the amendments provides preference protection to commercial landlords and suppliers who receive overdue payments from their tenants or customers under agreements made on or after March 13, 2020 to postpone the payment of rent or supplier charges. The preference amendments encourage these creditors to afford their customers and tenants payment deferment arrangements without the risk that the companies will clawback the payments as preferences if they later file for bankruptcy protection. The amendments should facilitate workouts of distribution and leasing agreements to help distressed businesses recover and repay arrearages as COVID-19 related governmental restrictions are lifted this year. Reprinted courtesy of Andrew Arthur, White and Williams LLP and Steven Ostrow, White and Williams LLP Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com Mr. Arthur may be contacted at arthura@whiteandwilliams.com Read the court decision
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Update: Amazon Can (Still) Be Liable in Louisiana

December 31, 2024 — Michael Ciamaichelo - The Subrogation Strategist
On November 25, 2024, in Pickard v. Amazon.com, Inc., No. 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, the United States District Court for the Western District of Louisiana (District Court) ruled that Amazon.com, Inc. (Amazon) could be liable for manufacturer-seller liability under the Louisiana Products Liability Act (LPLA) for a defective product sold by a third-party seller through the “Fulfillment by Amazon” program (FBA). The court also dismissed two tort claims against Amazon as follows: (i) Amazon does not qualify as a “seller” for purposes of non-manufacturer seller liability (because passing title is required for that claim); and (ii) there is insufficient evidence to prove the decedent, Archie Pickard (Pickard), relied on Amazon’s safety practices when purchasing the defective product, precluding a claim for negligent undertaking. Background Pickard died from injuries sustained in a house fire allegedly caused by a defective battery charger he purchased on Amazon. Jisell, a Chinese company and a third-party seller, manufactured and sold the charger. Amazon never took title to the charger but stored it in its warehouse and delivered it to Pickard through the FBA. Pickard’s children filed a wrongful death lawsuit against Amazon alleging three claims: (i) manufacturer-seller liability under the LPLA; and tort-based claims of (ii) non-manufacturer seller liability and (iii) negligent undertaking. After Amazon moved for summary judgment on all claims, the District Court certified questions to the Supreme Court of Louisiana (Supreme Court) seeking guidance as there was minimal guidance regarding the application of products claims to online marketplaces. Read the court decision
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Reprinted courtesy of Michael Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

Sometimes it Depends on “Whose” Hand is in the Cookie Jar

January 21, 2015 — Roger Hughes – California Construction Law Blog
In a lengthy and somewhat detailed decision, the California Court of Appeal for First District, in Pittsburg Unified School District v. S.J. Amoroso Construction Company, Inc., Case No. A138825 (December 22, 2014), held that a public entity could unilaterally withdraw retention funds during a pending legal dispute without the court first finding that the contractor had defaulted on the public works project. Background In 2008, general contractor S.J. Amoroso Construction Company, Inc. (“S.J. Amoroso”) entered into a construction contract with the Pittsburg Unified School District (“District”) for the reconstruction and modernization of a high school in Pittsburg, California. Read the court decision
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Reprinted courtesy of Roger Hughes, Wendel Rosen Black & Dean LLP
Mr. Hughes may be contacted at rhughes@wendel.com

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