Construction Contract Provisions that Should Pique Your Interest
September 30, 2019 —
Christopher G. Hill - Construction Law MusingsConstruction contracts are a big part of my legal practice and the drumbeat here at Construction Law Musings. Why? Because not only does your construction contract set the expectations and “rules of the game” for a construction project, it will be read strictly and literally by the Virginia courts should there be a dispute. For these reasons, construction professionals need to be alert for the language in certain key clauses in a construction contract to assure that these clauses are as balanced as possible and also well understood. Here are my “Top Five”:
- “Pay if Paid”- These clauses are almost always in the subcontracts between a general contractor and a subcontractor and are enforceable in Virginia if drafted correctly and under the proper circumstances.
- Change Orders- Whether work is subject to a change order and the required payment for any changed work are often a key source of contention (read legal fees). A properly drafted and followed change order provision can help avoid much of this contention.
- Indemnity- Much has been made in recent years about indemnity provisions and their enforceability. All parties in the construction payment chain can and should be aware of how to best draft their indemnity provisions to make them enforceable. Failure to do so can be catastrophic.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Lien Attaches To Landlord’s Interest When Landlord Is Party To Tenant Improvement Construction Contract
January 03, 2022 —
David Adelstein - Florida Construction Legal UpdatesIf you are a landlord / lessor, then you want to maximize the protections afforded to you under Florida’s Lien Law in Florida Statute s. 713.10. These protections are designed to protect your property from liens for improvements performed by your tenant / lessee. The intent is that if you comply with s. 713.10, then a tenant improvement contractor’s recourse is against the leasehold interest, and NOT against the interest of the real property (or your interest as the landlord / lessor). Needless to say, it is imperative that a landlord / lessor make efforts to comply with this section when a tenant is performing tenant improvements, even when the landlord is contributing money to those improvements.
Section 713.10 provides in material part:
(1) Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.
(2)(a) When the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Earth Movement Exclusion Bars Coverage
March 19, 2015 —
Tred R. Eyerly – Insurance Law HawaiiDamage to the YMCA recreation center was not covered due to application of the earth movement exclusion. YMCA of Pueblo v. Secura Ins. Co., 2015 U.S. Dist. Lexis 15249 (D. Colo. Feb. 6, 2015).
On October 11, 2013, the insureds discovered a leaking water line in the men's shower, where one of the shower's on/off valves had detached from the water pipe behind the wall. The leak was repaired the same day.
On October 13, 2013, the pool deck near the therapy pool and surrounding block walls shifted and collapsed. The insurer admitted there was damage to the property. Several leaks were discovered in the pipes under and near the therapy pool, and the pool lost several inches of water.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Anchoring Abuse: Evolution & Eradication
October 09, 2023 —
Tim Capowski & Chris Theobalt - Kahana FeldOver the past few years, the plaintiff bar has expanded its use of improper anchoring tactics. Historically, improper anchoring was seen as a risky tactic in which a plaintiff’s counsel would suggest an outrageous figure for pain and suffering during summation in the hope that the lay jury would either award it or split the difference (cut the suggested figure by half) and, either way, return an excessive or runaway verdict. Plaintiff counsel deployed the tactic infrequently through the turn of the century for fear of alienating the jury by appearing greedy.
Two interrelated factors happened to change this dynamic. First, the plaintiff bar worked extremely hard in the intervening years with great success to shed its “ambulance chaser” stereotype by marketing itself as the “protector of the vulnerable”. Second, with the rise in Reptile and punitive tactics spawned in part by the publication of the Reptile handbook, the plaintiff bar also discovered that juries were not alienated by outrageous anchors as long as they were preceded by Reptile commentary essentially to “prime” the jury to punish the defendant rather than compensate the plaintiff with its award.
This is not speculation. I recall sitting outside a courtroom with one of New York’s top plaintiff attorneys in 2006 during deliberations on a catastrophic personal injury trial, during which he conceded to me that he was worried he had asked the jury for too large a figure (it was not even eight figures). A decade later in 2016, that same attorney felt no trepidation in requesting nearly $100 million for a comparable injury. He fed the jurors a steady diet of Reptile tactics from start to finish and they dutifully awarded the requested figure. Our research confirms that this two-step strategy (Reptile + improper anchor) preceded every New York nuclear verdict returned from 2010-2022. The same is almost certainly true of most nuclear verdicts in other jurisdictions.
Reprinted courtesy of
Tim Capowski, Kahana Feld and
Chris Theobalt, Kahana Feld
Mr. Capowski may be contacted at tcapowski@kahanafeld.com
Mr. Theobalt may be contacted at ctheobalt@kahanafeld.com
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Housing Prices Up through Most of Country
December 20, 2012 —
CDJ STAFFHome prices in October were up more than six percent compared with prices in October 2011. The LA Times noted that some of the strongest gains were in California and Arizona. The Phoenix metropolitan area saw a 24.5% rise in home prices. In California, Riverside and Los Angeles were just above the national average, at 7.3% and 6.4%, contributing to the state’s overall nine percent increase.
The news wasn’t good throughout the entire country, as five states did not see any price increases. Mark Fleming, the chief economist at CoreLogic, a research firm in Irvine, California said that “the housing recovery that started earlier in 2012 continues to gain momentum.
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Builder Pipeline in U.S. at Eight-Year High: Under the Hood
August 26, 2015 —
Sho Chandra – BloombergHere’s the takeaway from the Commerce Department’s report Tuesday in in Washington that showed sales of new homes in the U.S rebounded in July to a 507,000 annualized rate. The median forecast of 75 economists surveyed by Bloomberg projected 510,000.
* Number of homes sold but not yet started climbed to a 192,000 annualized rate, the most since June 2007.
* That means builders have a large pipeline of demand to fill, which will keep housing starts rising.
* The number of homes under construction was the lowest since August 2014 and the number completed were the fewest since November.
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Sho Chandra, Bloomberg
Newmeyer & Dillion’s Alan Packer Selected to 2018 Northern California Super Lawyers List
July 18, 2018 —
Newmeyer & DillionWALNUT CREEK, Calif. – JULY 10, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that litigation attorney Alan Packer has been selected to the 2018 Northern California Super Lawyers list. No more than five percent of the lawyers in the state are selected by Super Lawyers each year.
Packer is a partner in the firm's expanding Walnut Creek office. He has practiced law in California for over 30 years, mostly representing parties involved in real estate, home building, commercial construction, and insurance matters. He represents business clients, homebuilders, property owners, and others in a broad range of legal matters.
Packer is a frequent speaker at seminars and in-house training sessions for clients on issues relating to risk management, construction litigation, and insurance.
Earlier this year, Newmeyer & Dillion attorneys in Newport Beach and Las Vegas were also selected to Super Lawyers lists. Packer brings its total to 19 Newmeyer & Dillion attorneys recognized.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations, resulting in a comprehensive and diverse listing of exceptional attorneys.
Alan Packer
Partner
Walnut Creek
Contact
925.988.3200
alan.packer@ndlf.com
Practices
Business Litigation
Construction Litigation
Insurance Law
Real Estate Litigation
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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California Supreme Court Adopts “Vertical Exhaustion” in the Long-Storied Montrose Environmental Coverage Litigation
June 08, 2020 — Gregory S. Capps & Michael E. DiFebbo - White and Williams LLP
On April 6, 2020, the California Supreme Court issued a decision that held a policyholder is entitled to access available excess coverage under any excess policy once it has exhausted directly underlying excess policies for the same policy period in Montrose Chemical Corporation v. the Superior Court of Los Angeles County, Supreme Court of California, case number S244737. In its unanimous decision adopting this “vertical exhaustion” requirement, the court rejected the “horizontal exhaustion” rule urged by the policyholder’s excess insurers, under which the policyholder would have been able to access an excess policy only after it had exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability occurred.
In 1990, Montrose sought coverage under primary policies and multiple layers of excess policies issued for periods from 1961 through 1985 for environmental damage liabilities arising from its production of insecticide in the Los Angeles area between 1947 and 1982. The ongoing dispute currently arises out of Montrose’s Fifth Amended Complaint which was filed in 2015 seeking declarations concerning exhaustion and the manner in which Montrose may allocate its liabilities across the policies. Each of the excess policies at issue contained a requirement of exhaustion of underlying coverage. The various policies described the applicable underlying coverage in four main ways: (1) some policies contained a schedule of underlying insurance listing all of the underlying policies in the same policy period by insurer name, policy number, and dollar amount; (2) some policies referenced a specific dollar amount of underlying insurance in the same policy period and a schedule of underlying insurance on file with the insurer; (3) some policies referenced a specific dollar amount of underlying insurance in the same policy period and identified one or more of the underlying insurers; and (4) some policies referenced a specific dollar amount of underlying insurance that corresponds with the combined limits of the underlying policies in that policy period. The excess policies also provided, in various ways, that “other insurance” must be exhausted before the excess policy can be accessed.
Reprinted courtesy of Gregory S. Capps, White and Williams LLP and Michael E. DiFebbo, White and Williams LLP
Mr. Capps may be contacted at cappsg@whiteandwilliams.com
Mr. DiFebbo may be contacted at difebbom@whiteandwilliams.com
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