Do We Really Want Courts Deciding if Our Construction Contracts are Fair?
March 19, 2015 —
Christopher G. Hill – Construction Law MusingsAs I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would
essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction.
Of course, as soon as I posted last week, my friend and colleague
Scott Wolfe (@scottwolfejr) commented on that post and then
gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or
discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that
you should read your contracts carefully because they will be the law of your business relationship in the future.
The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.”
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Florida Courts Inundated by Wave of New Lawsuits as Sweeping Tort Reform Appears Imminent
April 03, 2023 —
John A. Rine - Lewis BrisboisTampa, Fla. (March 22, 2023) – Plaintiffs’ attorneys throughout Florida are rushing to file lawsuits in anticipation of sweeping tort reform legislation. It has been reported that some plaintiffs’ firms in the Sunshine State have filed hundreds – and in some cases thousands – of new lawsuits this week ahead of the potential enactment of the bill. It has also been reported that this record number of new suits being filed is causing difficulty and failures in some court computer systems.
These plaintiffs’ attorneys are panicked by HB 837. This bill will potentially provide the most radical tort reform the state has seen in several decades. The specific revisions to civil litigation are dramatic. For instance, the statute of limitations would be cut in half, from four years to two years. Additionally, insurance carriers would be immune from claims of bad faith if they tender the limits within 90 days of notice of a claim. Carriers will also enjoy numerous new protections from bad faith litigation even where there is no tender in the first 90 days.
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John A. Rine, Lewis BrisboisMr. Rine may be contacted at
John.Rine@lewisbrisbois.com
Preliminary Notices: Common Avoidable But Fatal Mistakes
August 26, 2019 —
William L. Porter - Porter Law GroupIn the California building and construction industry, service of a “Preliminary Notice” is a prerequisite for Subcontractor and Supplier claims for payment through the Mechanics Lien, Stop Payment Notice and Payment Bond Claim process. Without proper drafting and service of a Preliminary Notice, these extremely valuable claims cannot be protected. Unfortunately, despite the vital importance of the Preliminary Notice, Subcontractors and Suppliers often make common self-defeating mistakes that make their Preliminary Notice efforts completely ineffective, resulting in loss of their claims rights. The purpose of this article is to list some of these common mistakes in the hope that the reader will avoid such mistakes, preserve the integrity of the Preliminary Notice, and protect the claims rights it makes available:
Not Sending out the Preliminary Notice Within 20 Days After Supplying Labor or Materials:
The protection of a Preliminary Notice begins 20 days before it sent out. This means that if a Subcontractor or Supplier claimant delivered $100,000 in materials on February 1, that same claimant must serve the Preliminary Notice on or before February 21 (the sooner the better), or the claimant will not be able to pursue an enforceable Mechanics Lien, Stop Payment Notice or Payment Bond claim for that $100,000. There are very few exceptions. Best practice: A Subcontractor or Supplier must send out the Preliminary Notice as soon as an agreement to provide work or materials to a California construction project is in place (See California Civil Code 8204).
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Receiving a $0 Verdict and Still Being Deemed the Prevailing Party for Purposes of Attorney’s Fees
May 24, 2018 —
David Adelstein - Florida Construction Legal UpdatesLow and behold, a party can be the prevailing party for purposes of attorney’s fees even if that party is awarded $0. That’s right, even if the party is awarded a big fat zero, they can still be the prevailing party for purposes of being entitled to attorney’s fees. This is because a party is the prevailing party if they prevail on the significant issues in the case. A party can prevail on the significant issues even if that party is awarded $0. Whoa!
For example, in Coconut Key Homeowner’s Association, Inc. v. Gonzalez, 43 Fla.L.Weekly D1045a (Fla. 4th DCA 2018), a homeowner sued her homeowner’s association claiming the association breached its governing documents. There was a basis for fees under Florida’s homeowner’s association law (and there likely was a basis under the governing documents). At trial, the jury held that the association breached its governing documents, but awarded the homeowner nothing ($0). The trial court also issued injunctive relief in favor of the homeowner. The homeowner claimed she should be deemed the prevailing party for purposes of attorney’s fees; however, this was denied by the trial court based on the $0 verdict and no fees were awarded to the homeowner.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Video: Contractors’ Update on New Regulations Governing Commercial Use of Drones
September 01, 2016 —
David R. Cook Jr. – AHHC Construction Law BlogAt a presentation before the AGC of Georgia, AHHC attorneys Mark Hanrahan, David Cook, and Chadd Reynolds covered “Contractors’ Update on New Regulations Governing Commercial Use of Drones.” View the presentation here: https://vimeo.com/177566370
On June 23, 2016, the Department of Transportation and Federal Aviation Administration issued new regulations regarding non-hobby and non-recreational civil operation of small unmanned aircraft systems. These regulations are intended to limit interference with federal airspace while advancing research and safety in commercial industries. They also addressed practical implications and how to comply by the August 29, 2016 deadline.
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David R. Cook Jr., Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Product Liability Economic Loss Rule and “Other Property” Damage
November 28, 2022 —
David Adelstein - Florida Construction Legal UpdatesOne of the best defenses a manufacturer has, particularly in non-personal injury cases, is the economic loss rule. Lo and behold, a recent opinion out of the Middle District of Florida, Dero Roofing, LLC v. Triton, Inc., 2022 WL 14636884 (M.D.Fla. 2022), touches on this very subject with cogent analysis regarding “other property” damage for purposes of the economic loss rule.
In Dero Roofing, a roofing contractor repaired hurricane damage to roofs of condominium buildings. The roofing contractor became a certified applicator of the manufacturer Triton’s products. After the roofer applied certain products with a sprayer, the products “streaked down the roof tiles onto ‘the exterior and interior of the [Condos], including penetration of the residents’ screens, gutters, and other related areas.” Dero Roofing, supra, at *1. The roofing contractor obtained an assignment of the condominium’s claims and sued the manufacturer and distributor of the (Triton manufactured) products.
The defendants moved to dismiss under the economic loss doctrine.
The economic loss doctrine “prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any property other than itself.” Dero Roofing, supra, at *3 (quotation and citation omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Safe and Safer
May 01, 2023 —
Grace Austin - Construction ExecutiveThere’s always room for improvement” is a cliché that applies to nothing if not health and safety in the construction industry, where doing things differently—doing them better—means preventing injuries and saving lives. In that spirit, Construction Executive asked five industry safety advocates a simple question: What is one thing about construction safety you’d like to see change?
Ranging from sweeping to granular, their answers all focus on the people underneath the hard hats. As Miller & Long’s Frank Trujillo notes: “‘Safety first’ has been a mantra in the industry for decades, but I think companies have forgotten what that means. It’s about people—who they are, what they care about, who they love and their wellness.”
But each of our experts—all of them representing companies who participate in ABC’s STEP Safety Management System —has a different idea of how safety in the construction industry can and should evolve, and what needs to change. Their answers below have been condensed and edited for clarity.
Reprinted courtesy of
Grace Austin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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War-Torn Ukraine Looks to Europe’s Green Plans for Reconstruction Ideas
July 18, 2022 —
Laura Millan Lombrana - BloombergUkrainian officials and architects are already thinking about how to rebuild cities torn by the Russian invasion in a way that is also respectful to the environment and helps fight climate change.
Mariupol city hall officials have started to assess the damage caused by Russian shelling as a first step to rebuild the city once the war is over, Deputy Mayor Sergei Orlov told an audience in Brussels at the New European Bauhaus festival, running through Saturday in several European cities. A coalition of Ukrainian and international experts in urban planning, heritage, energy and the circular economy are working toward the same goal.
“We will reconstruct Ukraine, we have to do that and we will do that,” European Commission President Ursula von der Leyen said at the festival. “It’s not only in our interest, it’s our moral obligation to do that — but when we are reconstructing Ukraine, let’s do it the right way, let’s do it in the spirit of the New European Bauhaus.”
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Laura Millan Lombrana, Bloomberg
