Suffolk Stands Down After Consecutive Serious Boston Site Injuries
May 23, 2022 —
Scott Van Voorhis - Engineering News-RecordAfter two serious safety incidents in consecutive days, the Boston-area’s largest contractor voluntarily issued a safety stand down on all projects in Boston through May 6.
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Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr@enr.com
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Application Of Two Construction Contract Provisions: No-Damages-For-Delay And Liquidated Damages
February 14, 2022 —
David Adelstein - Florida Construction Legal UpdatesA recent Florida opinion between a prime contractor and a Florida public body touches upon two important issues: (1) the application of a no-damage-for-delay provision; and (2) the application of a liquidated damages provision. Both provisions find there way into many construction contracts. Unfortunately, the opinion is sparse on facts. Nevertheless, the application of these provisions is worthy of consideration.
In this opinion, Sarasota County v. Southern Underground Industries, Inc., 2022 WL 162977 (Fla. 2d DCA 2022), a county hired a contractor to install sanitary and water piping underneath a waterway. During construction, a nearby homeowner complained that vibration from the drilling caused damage to his home. As a result, the county stopped the contractor’s work to address a potential safety issue, as it was contractually entitled to do. The contractor hired a structural engineer to inspect the house and the engineer issued a report determining that any alleged damage was cosmetic and that there was sufficient monitoring of the vibrations to prevent future damage. The contractor also had an insurance policy to cover any homeowner claim for damage. However, upon receipt of the engineer’s report, the county did not lift its stop work order. Rather, the stop work order remained in place for an additional 71 days.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
When is a Residential Subcontractor not Subject to the VCPA? Read to Find Out
December 01, 2017 —
Christopher G. Hill - Construction Law MusingsThe Virginia Consumer Protection Act (VCPA) can and often does apply to residential construction. The transaction between a residential contractor and an homeowner has been held to fall under the consumer transaction language of the VCPA and on occasion been used to avoid the issues with the economic loss doctrine in Virginia. However, there are limits to how far down the contractual chain the VCPA applies, particularly in the case where a supplier or subcontractor does not provide the services or materials for a personal, consumer purpose.
An example of this fact is found in the case of Johnston v. Stephan. In that case, a couple hired a general contractor to build a home and the general contractor hired Cole Roofing System, Inc. to provide the roof of the home. The first couple subsequently sold the home and the second homeowners sought further work on the roof from Cole Roofing. After Cole Roofing refused further work, the homeowners brought an action seeking to enforce a warranty and for a violation of the VCPA. For the warranty claim, the homeowners relied on the contract between them and the prior homeowners that referenced a 10 year warranty on the roof and the subcontract between the homebuilder and Cole Roofing. Cole Roofing sought dismissal of the VCPA and warranty claims by demurrer and further sought by demurrer to have the matter dismissed as being filed after the running of the statute of limitations.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
The Hidden Dangers of Construction Defect Litigation
March 28, 2012 —
David M. McLain, Colorado Construction LitigationDavid M. McLain, writing at Colorado Construction Litigation, has an interesting blog post republishing his article in Common Interests magazine, the monthly periodical of the Rocky Mountain Chapter of the Community Associations Institute. In his article, he touches on a number of pitfalls in construction defect litigation, including the potential conflicts of interests facing HOAs. He also considers the problems homeowners can face, including both “strong-arm tactics” taken by attorneys to compel homeowners to join the lawsuit, or situations in which the interests of the HOA do not match those of the homeowners. He writes:
There is also a conflict of interest with individual owners who attempt to opt out of the case. This can lead to shocking strong-arm tactics on the part of plaintiffs’ attorneys. In one instance, a plaintiffs’ attorney sent a letter to an individual homeowner that stated that as a 1/58th owner of the common elements, if he refused to go along with the suit, and there was ultimately a finding in favor of the HOA which was in any way limited by his refusal to participate, he would be personally liable for 1/58th of the HOA’s total damages. In another instance, a different plaintiffs’ attorney sent a letter to a homeowner who wanted the builder to perform warranty repairs, informing the owner that if he let the builder perform any repairs, the attorney would bill the HOA according to the fee agreement entered by the HOA board (without knowledge or consent of non-board members) and that the HOA would assess the homeowner for that expense. These are just two examples of conflicts which may arise between the HOA board and individual homeowners when the HOA pursues CD cases.
Another example of a conflict which will arise as a result of CD litigation occurs post-settlement. When an HOA settles for less than 100% of the amount necessary to fund all repairs outlined by its experts, plus attorneys’ fees and litigation costs, there will obviously be a shortfall in the amount necessary to fix the development. The HOA board must then choose to impose a special assessment to cover the shortfall or to make some, but not all, of the repairs outlined by its experts. In choosing the latter, the conflict arises with respect to which homes get fixed and which do not. In this situation, the HOA board has acted as the attorney-in-fact for the individual owners by bringing claims on their behalf, and has compromised those claims without their knowledge or consent.
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Reprinted courtesy of David M. McLain of Higgins, Hopkins, McClain & Roswell, LLC. Mr. McClain can be contacted at mclain@hhmrlaw.com.
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Subcontractors Have a Duty to Clarify Ambiguities in Bid Documents
August 19, 2015 —
Craig Martin – Construction Contractor AdvisorSeveral months ago, I wrote about an escalator subcontractor that sued a general contractor, demanding payment for work completed based on approved shop drawings. The trial court agreed with the subcontractor, but the general contractor appealed. Ten months later, the Court of Appeals reversed, finding that the subcontractor had a duty to bring to the general contractor’s attention major discrepancies or errors they detect in the bid documents.
“The subcontractor failed to disclose ambiguities in the plans and must suffer the peril.”
Construction Difficulties
The subcontractor installed 32 inch escalators throughout the project, but the plans called for 40 inch escalators. The general contractor and subcontractor could not reach agreement on how the dispute should be resolved. The subcontractor sued the general to get paid for replacing the escalators and the general sued to subcontractor for concessions it had to pay to the owner.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
New York Appellate Division: Second Department Contradicts First Department, Denying Insurer's Recoupment of Defense Costs for Uncovered Claims
March 01, 2021 —
Jasjeet K. Sahani - Saxe Doernberger & Vita, P.C.New York law has historically allowed insurers to recoup defense costs paid on behalf of an insured if there is ultimately no coverage for the underlying action, provided that the insurer reserved its rights to seek reimbursement. On December 30, 2020, the New York Appellate Division, Second Department declined to follow this longstanding principle in American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co.,1 by holding that the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy.
In American W. Home Ins. Co., the insureds were named as defendants in an underlying personal injury action. More than four years after the accident, and a $900,000 default judgment against the insureds, they tendered the lawsuit to their commercial general liability insurer, American Western Home Insurance Company (“American”). American denied coverage based on untimely notice, but after the default judgment was subsequently vacated, it agreed to defend the underlying action subject to a reservation of rights. The reservation of rights specifically reserved American’s right to deny coverage if the vacatur of the default judgment against the insureds was reversed. Further, American reserved its right to recover the costs of defending the underlying litigation.
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Jasjeet K. Sahani, Saxe Doernberger & Vita, P.C.Mr. Sahani may be contacted at
JSahani@sdvlaw.com
In Matter of First Impression, California Appellate Court Finds a Claim for a Real Estate Professional’s Breach of Fiduciary Duty is Assignable
January 28, 2025 —
Briane Slome & Pamela Albanese - Lewis Brisbois NewsroomSan Diego, Calif. (January 17, 2025) - The California Court of Appeal recently reversed a judgment entered in favor of real estate brokers who were sued for breaching their fiduciary duties in connection with the sale of residential real estate in Malibu. The Court of Appeal found the trial court erred when it rendered judgment in favor of the brokers on the basis that the plaintiff lacked standing to pursue claims that had been assigned to her. The trial court reasoned that claims for breach of fiduciary duty against real estate brokers are highly personalized tort causes of action, which cannot be assigned. The Court of Appeal disagreed. In a case of first impression, it held that a cause of action for breach of a real estate broker’s fiduciary duties, which seeks damages related to property rights and pecuniary interests, is assignable.
The Court of Appeal’s decision in Lazar v. Bishop, issued December 19, 2024, involved a unique set of facts. The seller bought the property in 2006. His daughter, Laura Lazar, lived at the property. The seller hired a real estate broker to sell the home. The broker listed the property for $4.2 million. Thereafter, she persuaded the seller to drop the listing price to $3.15 million, the price at which it was ultimately sold.
Reprinted courtesy of
Briane Slome, Lewis Brisbois and
Pamela Albanese, Lewis Brisbois
Mr. Slome may be contacted at Brian.Slome@lewisbrisbois.com
Ms. Albanese may be contacted at Pamela.Albanese@lewisbrisbois.com
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Fire Fears After Grenfell Disaster Set Back Wood Building in UK
May 29, 2023 —
Olivia Rudgard - BloombergThis article is part of the Bloomberg Green series Timber Town, which looks at the global rise of timber as a low-carbon building material.
To get fire department approval for their six-story London office project made of strong engineered wood known as
mass timber, Theo Michell and Richard Walker had to build a full-scale section of it in the UK, ship it to Poland and attempt to set it on fire.
The mockup was set alight “with enough material that replicates the fire load that you get from furniture and carpets and desks, and all the rest of it, and you see how that structure performs,” says Michell.
“It was cool,” adds Walker. “It looked amazing.”
Their building, called Paradise, passed the fire test and is under construction, though not without a significant drag on their budget and time.
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Olivia Rudgard, Bloomberg
