California Bullet Train Clears Federal Environmental Approval
June 30, 2014 —
Michael B. Marois – BloombergThe U.S. Federal Railroad Administration has approved an environmental review needed to begin building a portion of a $68 billion California high-speed rail line that has been mired in lawsuits.
The agency, part of the Transportation Department, said in a release that it cleared a 114-mile (183-kilometer) stretch of the project in the Central Valley.
The California High-Speed Rail Authority has been blocked from selling bonds to begin construction of the first U.S. bullet train until a court decides whether details of the financing were adequately disclosed.
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Michael B. Marois, BloombergMr. Marois may be contacted at
mmarois@bloomberg.net
Coverage for Construction Defects Barred by Business Risk Exclusions
September 01, 2011 —
Tred R. Eyerly - Insurance Law HawaiiAlthough the court determined there was an occurrence, coverage was excluded by the business risk exclusions. See Cont’l W. Ins. Co. v. Shay Constr. Co., 2011 U.S. Dist. LEXIS 82839 (D. Colo. July 28, 2011).
White was the general contractor on the project. White had three subcontracts with Shay to provide framing, siding, and related work on the project. Shay was insured under a CGL policy issued by Continental Western.
Two of Shay’s subcontractors furnished materials, labor and equipment to Shay. These subcontractors filed suit in state court alleging they had not been compensated for the work and materials. White and Shay were named as defendants. White cross claimed against Shay, alleging Shay had breached its obligations under the subcontracts. Several allegations sounded in contract. Other allegations, however, contended Shay had performed defective work and had damaged the work of other trades in correcting deficiencies in its own performance.
Shay sought coverage under Continental Western’s policy. Continental Western filed suit for a declaratory judgment and moved for summary judgment.
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Professional Liability Alert: California Appellate Courts In Conflict Regarding Statute of Limitations for Malicious Prosecution Suits Against Attorneys
April 28, 2014 —
David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLPIn conflict with an earlier decision by a different division within the same District, and with a prior decision of another District which followed the earlier case, Division Three of the Second Appellate District has concluded, contrary to established precedent, that the general two-year limitations period set forth in Code of Civil Procedure section 335.1 (“Section 335.1”) applies to malicious prosecution claims against attorneys, rather than the specific one-year statute of limitations for claims against attorneys codified in Code of Civil Procedure section 340.6 (“Section 340.6”).
In Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (filed April 15, 2014, Case No. B237424, consolidated with Case No. B239375), Roger Cleveland Golf Co., Inc. (“Cleveland Golf”), filed a malicious prosecution action against Krane & Smith (“the Attorneys”), who had unsuccessfully prosecuted the underlying breach of contract matter for their client against Cleveland Golf. In that action, on April 26, 2010, the trial court entered its order granting a motion for nonsuit and dismissing the complaint in favor of Cleveland Golf. On May 24, 2011, or approximately 13 months after the trial court had dismissed the underlying complaint, Cleveland Golf commenced a malicious prosecution action against the Attorneys. In the interim, the Attorneys initiated an appeal of the underlying judgment, which was eventually dismissed approximately seven months later. In response to the complaint, the Attorneys filed a special motion to strike, commonly referred to as an anti-SLAPP motion, which included the argument that the malicious prosecution claim was time-barred under the one-year limitations period of Section 340.6. The trial court granted the Attorneys’ motion based on the statute of limitations (and Cleveland Golf’s failure to demonstrate a probability of success on the merits) and dismissed the case. Cleveland Golf’s appeal followed.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com, Mr. Squillario may be contacted at ssquillario@hbblaw.com
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Sales of U.S. New Homes Decline After Record May Revision
July 30, 2014 —
Victoria Stilwell – BloombergFewer new U.S. homes were sold in June than forecast and May data showed the biggest downward revision on record, painting a picture of a housing market that is struggling to gain traction.
Sales of newly built homes declined 8.1 percent to a 406,000 annualized pace, the fewest since March and less than any economist surveyed by Bloomberg forecast, Commerce Department figures showed today in Washington. That followed a May reading of 442,000 that was 12.3 percent lower than estimated last month.
Restrictive lending rules, limited land supply, higher mortgage rates and more expensive properties are keeping a lid on how much the housing recovery can accelerate. Continued employment gains and bigger increases in wages will be needed to support further growth in the industry, which has stalled since interest rates started climbing last year.
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Victoria Stilwell, BloombergMs. Stilwell may be contacted at
vstilwell1@bloomberg.net
Techniques for Resolving Construction Disputes
September 16, 2019 —
Jason Lambert - Construction ExecutiveWith most construction projects involving dozens, if not hundreds, of companies and individuals, it is no surprise that conflicts arise that are not always able to be resolved on the jobsite. But these conflicts need not always reach the court room or cost thousands (or much more) to resolve. With some planning, contractors can build faster and less expensive dispute resolution options into their project so they can spend more time keeping the project moving and less time arguing over who is right.
Even for modest-sized projects, a multi-tiered approached to dispute resolution can be helpful. As a first level of dispute resolution, consider requiring the relevant parties to attend informal or formal mediation. The benefits of even an informal mediation is that it can get stalemated parties to the table to talk again. Formal mediation adds the benefit of a neutral third-party who can help get talks moving or help antagonistic parties communicate.
Further, mediation allows each side an opportunity to hear what the other side is looking for to resolve the dispute. Not only is this valuable in reaching a compromise, but it also gives each side an idea of what the other will bring to the table in any subsequent litigation. Finally, there are many ways to implement these procedures. General contractors can require pre-suit mediation with their subcontractors to resolve one-on-one disputes but should also consider requiring subcontractors to use pre-suit mediation to resolve disputes between subcontractors or between subcontractors and sub-subcontractors or material suppliers if the dispute threatens the progress at the project.
Reprinted courtesy of
Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Attorney’s Fees Entitlement And Application Under Subcontract Default Provision
May 06, 2019 —
David Adelstein - Florida Construction Legal UpdatesMany subcontracts contain a provision in the default section that reads something to the effect:
“Upon any default, Subcontractor shall pay to Contractor its attorney’s fees and court costs incurred in enforcing this Subcontract or seeking any remedies hereunder.”
Oftentimes, a party may wonder as to the enforceability of the provision and how it is applied in the context of a dispute between a contractor and its subcontractor where both parties have asserted claims against the other.
In an opinion out of the Middle District of Georgia, U.S. f/u/b/o Cleveland Construction, Inc. v. Stellar Group, Inc., 2019 WL 338887 (M.D.Ga. 2019), a subcontractor and prime contractor on a federal construction project each asserted claims against the other in the approximate amount of $4 Million, meaning there was a potential $8 Million swing in the dispute.
The subcontract contained a provision entitling the contractor to recover attorney’s fees incurred in enforcing the subcontract or seeking remedies under the subcontract upon any default, identical to the provision above.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Traub Lieberman Attorneys Lisa M. Rolle, Eric D. Suben, and Justyn Verzillo Secure Dismissal of All Claims in a Premises Liability Case
November 16, 2023 —
Lisa M. Rolle, Eric D. Suben & Justyn Verzillo - Traub LiebermanOn an appeal of an order denying Defendant’s motion to dismiss the complaint in a slip-and-fall action commenced in Kings County Supreme Court, Traub Lieberman attorneys Lisa M. Rolle, Eric D. Suben, and Justyn Verzillo successfully secured dismissal of all claims by the Appellate Division, Second Department, on behalf of Traub Lieberman’s client.
The lawsuit sought to recover damages arising out of injuries the Plaintiff allegedly sustained when she slipped and fell in the shower of a rental property owned by the Defendant, a limited liability company. Plaintiff alleged that the subject shower was defective, and the Defendant negligent, based on the absence of non-slip surfacing and grab bars in the shower. Aside from premises liability (negligence), Plaintiffs asserted eight other causes of action, including gross negligence, breach of warranty of habitability, intentional infliction of emotional distress, negligent infliction of emotional distress, alter-ego liability, loss of consortium, and for declaratory judgment.
The judge in Supreme Court denied Traub Lieberman’s motion to dismiss on behalf of Defendant, citing as the sole reason that the affidavits submitted with the motion were unsigned, and ignoring Traub Lieberman’s arguments pointing out the glaring facial deficiencies of Plaintiff’s pleading and that the signed affidavits were in fact submitted before the return date.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman,
Eric D. Suben, Traub Lieberman and
Justyn Verzillo, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Suben may be contacted at esuben@tlsslaw.com
Mr. Verzillo may be contacted at jverzillo@tlsslaw.com
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Partner Lisa M. Rolle and Associate Vito John Marzano Obtain Dismissal of Third-Party Indemnification Claims
December 22, 2019 —
Lisa M. Rolle & Vito John Marzano - Traub Lieberman PerspectivesOn June 1, 2019, Traub Lieberman partner Lisa M. Rolle and associate Vito John Marzano successfully secured dismissal of all third-party claims on behalf of a corporate entity and its principal in a third-party action in the New York State Supreme Court, County of Bronx. The underlying action concerned a trip and fall that occurred on a public sidewalk located in the Bronx. Plaintiff commenced suit against the corporation property owner and its principal. Defendants/third-party plaintiffs commenced the third-party action seeking contractual and common-law indemnification against three third-party defendants, the corporate tenant, another corporate entity that was not a party to the lease and its principal. Traub Lieberman represented the latter two third-party defendants.
On behalf of the corporate entity that was not a party to the lease, Traub Lieberman moved for dismissal on the basis that the lease constitutes documentary evidence establishing as a matter of law that the non-tenant corporation cannot be held liable to third-party plaintiffs. On behalf of the principal, Traub Lieberman sought dismissal for failure to state a cause of action because the principal was shielded from liability by virtue of having incorporated his business, and the complaint did not allege a claim for piercing the corporate veil.
In opposition, third-party plaintiffs sought to amplify their pleadings by alleging that a de facto merger had occurred between the non-tenant corporation and the tenant corporation. Third-party plaintiffs further argued that the corporate principal executed a guaranty to the lease, thus accepting liability on behalf of the tenant corporation.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman and
Vito John Marzano, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Marzano may be contacted at vmarzano@tlsslaw.com
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