Louisiana Couple Claims Hurricane Revealed Construction Defects
January 22, 2013 —
CDJ STAFFA Louisiana couple has sued the company that raised their home, claiming that faults with the work were revealed after Hurricane Isaac hit the home. Crescent City Construction raised the Marcev’s home in 2006. They were satisfied with the work until the 2012 hurricane. The Marcevs claim in their suit that the work is covered by a ten-year warranty.
They are suing for a full refund of their payments to Crescent City Construction, as well as architectural fees, damages, interest, and attorney costs. Their claim is that as a result of the work, their home now has structural defects and fails to meet building codes.
Read the court decisionRead the full story...Reprinted courtesy of
Mobile Home Owners Not a Class in Drainage Lawsuit
March 01, 2012 —
CDJ STAFFComparing it to a “complex construction defect action,” the California Court of Appeals for Orange County has rejected the claims of a group of mobile home owners that they should be certified as a class in their lawsuit against Huntington Shorecliffs Mobilehome Park. The Appeals court sustained the judgment of the lower court. The court issued a decision in the case of Criswell v. MMR Family LLC on January 17, 2012.
The claims made by the group were that the owners and operators of the mobile home park had known of an “on-going and potentially worsening shallow groundwater condition on the property” and had “exacerbated the problem by changing ‘the configuration and drainage related to the hillside that abuts’ the park.” The homeowners claimed that the class should consist of “any past or current homeowner during the same time frame” who had experienced “the accumulation of mold, fungus, and/or other toxins,” “property damage to his/her mobilehome and/or other property resulting from drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins,” emotional distress related to drainage problems or mold, and finally health problems “resulting from exposure to drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins, in or around one’s home, lot, or common areas of the park.”
The lower court concluded that while the limits of the class were identifiable, they failed to constitute a class in other ways. First, the people affected were small enough in number that they could be brought together. They “are not so numerous that it would be impracticable to bring them all before the Court.”
The court noted that while many of the homeowners would have issues in common, they did not find “a well-defined community of interest among the class members.” The Appeals Court wrote that “the individual issues affecting each mobile home and homeowner will predominate over the common issue of the presence of standing or pooling water in and around the park.” The court noted that each home would be affected differently by water and “the ‘accumulation of mold, fungus, and/or other toxins.’”
While the court conceded that there would be common issues, such as the “defendants’ alleged concealment of excess moisture conditions and their allegedly negligent roadwork and landscaping,” they noted that “these common issues would be swamped by the swarm of individual determinations of property damage, emotional distress, and personal injury.” The Appeals Court cited an earlier case that ruled against certification “if a class action ‘will splinter into individual trials.’” The court affirmed the judgment of the lower court that they could not proceed as a class.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
Measure Of Damages for Breach of Construction Contract
October 18, 2021 —
David Adelstein - Florida Construction Legal UpdatesHow do you determine damages for a breach of a construction contract? If you are interested in pursing a breach of a construction contract action, this is something you NEED TO KNOW!
The recent Fourth District Court of Appeal’s decision in Cano, Inc. v. Judet, 46 Fla. L. Weekly D2083b (Fla. 4th DCA 201) explains:
Where a contractor breaches a construction contract, and the owner sues for breach of contract and the cost to complete, the measure of damages is the difference between the contract price and the reasonable cost to perform the contract. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1039-40 (Fla. 1982). In Grossman, the supreme court adopted subsection 346(1)(a) of the Restatement (First) of Contracts (1932), which it concluded was “designed to restore the injured party to the condition he would have been in if the contract had been performed.” Id. at 1039. In other words, the owner will obtain the benefit of his bargain [and this is known as benefit of the bargain damages]. But where there is a total breach of the contract as opposed to a partial breach, an injured party may elect to treat the contract as void and seek damages that will restore him to the position that he was in prior to entering into the contract or the party may seek the benefit of his bargain. See McCray v. Murray, 423 So. 2d 559, 561 (Fla. 1st DCA 1982).
In Judet, an owner entered into a fixed price contract with a contractor to repair damage from a lightning strike. The contract amount was $300,000 payable in $30,000 installments. A few months after the contractor commenced performance, the owner terminated the contractor because the owner learned the contractor had not obtained required electrical and plumbing permits. At this time, the owner had paid the contractor $90,000. The contractor recorded a $40,000 lien for an amount it claimed it was owed and filed a lawsuit to foreclose its construction lien. The owner counter-sued the contractor to recover a claimed over-payment and a disgorgement of monies for unpermitted work. The owner was NOT claiming benefit of the bargain damages, but rather, damages for the contractor’s total breach “to restore him to the position that he was in prior to entering into the contract.”
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Montrose III: Vertical Exhaustion Applies in Upper Layers of Excess Coverage
May 18, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Montrose Chemical Corp. of Cal. v. Superior Court (No. S244737, filed 4/6/20) (Montrose III), the California Supreme Court held that, as between excess insurers at differing levels of coverage, a rule of “vertical exhaustion” or “elective stacking” applies, whereby the insured may access any excess policy once it has exhausted other excess policies with lower attachment points in the same policy period. The Court limited the rule to excess insurance, stating that “[b]ecause the question is not presented here, we do not decide when or whether an insured may access excess policies before all primary insurance covering all relevant policy periods has been exhausted.”
Montrose manufactured the insecticide DDT in Torrance from 1947 to 1982. In 1990, the state and federal governments sued Montrose for environmental contamination and Montrose entered into partial consent decrees agreeing to pay for cleanup. Montrose claimed to have expended in excess of $100 million doing so, and asserted that its future liability could exceed that amount.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Understand Agreements in Hold Harmless and Indemnity Provisions
June 06, 2022 —
Jeffrey Cavignac - Construction ExecutiveOne of the most important provisions in a construction contract is the indemnity provision. An indemnity provision, which usually includes a requirement to hold harmless and defend another party, is included in nearly all construction contracts. Generally speaking, the upstream party (a general contractor or owner, for example) is attempting to shift risk to a downstream party (the general contractor or a subcontractor). In simple terms, subject to certain parameters, the downstream party is agreeing to be responsible for the upstream parties’ mistakes.
DEFINING INDEMNIFICATION
Insurance brokers focused on development and construction businesses get asked frequently: “If we sign this, are we insured?” It would be great if this could be answered “yes” or “no,” but life is rarely that straightforward. To understand whether a specific indemnification is insurable, we have to drill down on the actual provision. Let’s look at a typical indemnification below:
“To the fullest extent permitted by law the Contractor shall indemnify, defend and hold harmless the owner, architect, architect’s consultants and agents and employees of any of them from and against any claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the work whether caused in whole or in part by the contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable.”
Reprinted courtesy of
Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Difficulty in Defending Rental Supplier’s Claim Under Credit Application
October 11, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn construction, one of the easiest claims to prove from a burden of proof standpoint is that of a supplier, particularly a rental equipment supplier. Oftentimes, these claims are more in the realm of a collection claim because a rental supplier will generally be able to establish that a party opened an account with them, signed a credit application and personal guaranty, and equipment was rented and even delivered to a specific jobsite during set dates. Defending these claims is not so easy. And even if there is a defense as it relates to some amounts, there needs to be an upside challenging those amounts when factoring in the attorney’s fees, costs, and interest on the other amounts and on continuing the dispute.
An example of the difficulty in defending these claims from rental suppliers can be found in the recent case of Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806 (Fla. 2d DCA 2021). Here, a contractor rented equipment (e.g, forklifts) from a supplier. The equipment was rented on an open account and the contractor signed a personal guaranty. The supplier sued the contractor for about $81,000 that remained unpaid. The supplier appeared to waste no time and moved for summary judgment with an affidavit from its credit manager. The credit manager affirmed that the contractor executed a credit application for purposes of renting equipment on an open account, the application contained a personal guaranty, and the credit application formed the basis of a contract. The credit manager authenticated the credit application and affirmed that the contractor owed it about $81,000 in unpaid amounts for rental equipment that was furnished under the credit application.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Dorian Lashes East Canada, Then Weakens Heading Out to Sea
September 16, 2019 —
The Associated Press (Rob Gillies) - BloombergThe storm that already walloped the Virgin Islands, Bahamas and North Carolina lashed at far-eastern Canada with hurricane-force winds for much of Sunday, knocking out power to hundreds of thousands of people before weakening and heading into the North Atlantic.
Dorian had hit near the city of Halifax Saturday afternoon, ripping roofs off apartment buildings, toppling a huge construction crane and uprooting trees. There were no reported deaths in Canada, though the storm was blamed for at least 50 elsewhere along its path.
Read the court decisionRead the full story...Reprinted courtesy of
The Associated Press (Rob Gillies), Bloomberg
Congratulations to Arezoo Jamshidi & Michael Parme Selected to the 2022 San Diego Super Lawyers Rising Stars List
April 04, 2022 —
Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLPCongratulations to Arezoo Jamshidi and Michael Parme who were selected for the 2022 San Diego Super Lawyers Rising Stars list. The 2022 San Diego Rising Stars list is an honor reserved for lawyers who exhibit excellence in practice. Only 2.5% of attorneys in San Diego receive this distinction.
Reprinted courtesy of
Arezoo Jamshidi, Haight Brown & Bonesteel, LLP and
Michael C. Parme, Haight Brown & Bonesteel, LLP
Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
