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DIRECTORY AND CAPABILITIES

Sweet News for Yum Yum Donuts: Lost Goodwill is Not an All or Nothing Proposition

October 07, 2019 — Josh Cohen - California Construction Law Blog
Last month a California Court of Appeals clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, to be entitled to a trial on the amount of goodwill lost. Yum Yum Donuts operated a shop in Los Angeles that was subject to eminent domain by the Los Angeles Metropolitan Transportation Authority (MTA) to make way for light railway track. At trial, Yum Yum sought loss of goodwill as part of its condemnation damages under Code of Civil Procedure section 1263.510. At trial the MTA’s expert testified that Yum Yum could have reduced its goodwill loss if it relocated to one of three alternative locations rather than simply closing the shop. But the expert conceded that even if Yum Yum had relocated, it would have lost some goodwill. Yum Yum refused to relocate, arguing that its relocation costs would render the move unprofitable. The trial court found that Yum Yum’s failure to mitigate its damages barred Yum Yum from having a jury trial to recover any goodwill damages. Read the court decision
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Reprinted courtesy of Josh Cohen, Wendel, Rosen, Black & Dean LLP
Mr. Cohen may be contacted at jcohen@wendel.com

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Not If, But When: Newly Enacted Virginia Legislation Bans “Pay-If-Paid” Clauses In Construction Contracts

August 22, 2022 — Joseph A. Figueroa & Thomas E. Minnis - ConsensusDocs
Recently passed legislation in Virginia is likely to dramatically change contractual relationships between prime contractors and subcontractors in the Commonwealth. Abrogating well-established common-law principles set forth by the Supreme Court of Virginia, on April 27, 2022, the Virginia General Assembly, after receiving input from Virginia Governor Glenn Youngkin, passed Senate Bill 550 banning “pay-if-paid” clauses in public and private construction contracts. Contractors performing work in Virginia should take note of the new law, which goes into effect next year and will apply to any contracts executed after January 1, 2023. The History Of Pay-if-Paid Clauses In Virginia Broadly speaking, “pay-if-paid” clauses are a commonly used tool by prime contractors on construction projects to shift the risk to subcontractors in the event that the owner does not pay the prime contractor for work. Such clauses usually include language creating an express condition precedent to the subcontractor’s right to be paid for work under a subcontract, stating that the prime contractor shall be under no obligation to pay the subcontractor for work unless and until the prime contractor first receives payment for that work by the project owner. The “pay-if-paid” clause also has a less extreme cousin, the “pay-when-paid” clause, which merely delays the time in which the prime contractor is obligated to pay the subcontractor to the time in which the prime contractor is paid by the owner. It does not, however, extinguish the prime contractor’s ultimate obligation to pay the subcontractor. Reprinted courtesy of Joseph A. Figueroa, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Thomas E. Minnis, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Figueroa may be contacted at jfigueroa@watttieder.com Read the court decision
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Do You Have A Florida’s Deceptive And Unfair Trade Practices Act Claim

April 27, 2020 — David Adelstein - Florida Construction Legal Updates
In previous articles, I discussed Florida’s Deceptive and Unfair Trade Practices Act referred to as “FDUTPA”…but, it has been awhile. (For more information on FDUTPA, check here and here.) Now is as good of a time as any to discuss it again because FDUTPA provides a private cause of action and, perhaps, there may be a consideration as to whether such claim can be (or is) properly asserted in the context of your circumstances. FDUTPA is a statutory scheme designed, “To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. s. 501.201(2). In doing so, FDUTPA authorizes three avenues of legal recourse against an offending party: “(1) declaratory relief; (2) injunctive relief; and (3) [monetary] damages.” Webber v. Bactes Imaging Solutions, Inc., 45 Fla. L. Weekly D125a (Fla. 2d DCA 2020);Fla. Stat. s. 501.211. “An unfair practice is ‘one that “offends established public policy” and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” Webber, supra, (citation omitted). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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You Are Not A “Liar” Simply Because You Amend Your Complaint

March 14, 2022 — David Adelstein - Florida Construction Legal Updates
In litigation, it is common for a plaintiff to amend their complaint. They may amend to add additional parties. To add new claims. To change the factual allegations. Or, to change the theme of their case. Most of the time, complaints are not verified by the plaintiff. Instead, complaints are drafted and signed by the plaintiff’s counsel. A question becomes: how prior reiterations of a complaint can be used against the plaintiff to show they are a bunch of “liars” by making amendments to their complaint. Sounds prejudicial to the plaintiff, right? Particularly if there is a jury. The reality is that amending complaints for various reasons is routine. Doing so does NOT make the plaintiff a liar and is not a vehicle that a defendant should use to create this inference. A defendant that tries to do so simply wants to detract from the substantive facts and issues. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Haight has been named a Metropolitan Los Angeles Tier 1 “Best Law Firm” in four practice areas and Tier 2 in one practice area by U.S. News – Best Lawyers® “Best Law Firms” in 2020

December 09, 2019 — Haight Brown & Bonesteel LLP
Haight Brown & Bonesteel LLP is listed in the U.S. News – Best Lawyers® (2020 Edition) “Best Law Firms” list with five metro rankings in the following areas: Los Angeles

• Tier 1
• Insurance Law
• Personal Injury Litigation – Defendants
• Product Liability Litigation – Defendants
• Product Liability Litigation – Plaintiffs
• Tier 2
• Personal Injury Litigation – Plaintiffs
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Reprinted courtesy of Haight Brown & Bonesteel LLP


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EEOC Sues Whiting-Turner Over Black Worker Treatment at Tennessee Google Project

October 18, 2021 — James Leggate - Engineering News-Record
The Whiting-Turner Contracting Co., which ranks as one of the industry’s largest contractors, has been accused in a federal civil rights lawsuit of creating a racially hostile work environment at a Tennessee project site and of retaliating against employees who complained. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at https://www.enr.com/leggatej@enr.com Read the full story... Read the court decision
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The Moving Finish Line: Statutes of Limitation and Repose Are Not Always What They Seem

June 01, 2020 — Kenneth E. Rubinstein & Nathan Fennessy - Construction Executive
Having an end date for risk is important to construction professionals who need to know when they can close their books and destroy files relating to old projects. While professionals typically look to the statute of limitations and repose, these deadlines can sometimes be harder to determine than one might think. State Laws Prohibiting Alteration of Statutes of Limitation Many contractors seek to control the extent of their risk by negotiating the length of their liability period. In some instances, contractors may seek to shorten the statute of limitations to protect against stale claims. While in other instances, owners periodically negotiate for longer periods to ensure that they will not be time barred from pursuing valid claims. While the majority of states enforce such contractual provision, a number of states hold such clauses unenforceable. In these instances, the state’s original statute of limitations will apply regardless of what the contract says. Reprinted courtesy of Kenneth E. Rubinstein & Nathan Fennessy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Rubenstein may be contacted at krubinstein@preti.com Mr. Fennessy may be contacted at nfennessy@Preti.com Read the court decision
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Home Buyer May Be Third Party Beneficiary of Property Policy

July 19, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The Oklahoma Supreme Court reversed the trial court's grant of summary judgment to the insurer, finding that the purchaser may have third party beneficiary rights under the seller's property policy. Hensley v. State Farm Fire & Cas. Co., 2017 Okla. LEXIS 59 (June 20, 2017). In May 2000, Hensley sold his property and a mobile home located thereon to Douglas using a contract for deed. The contract for deed required Douglas to keep the premises insured, and the monthly payments made by Douglas to Hensley included the premiums. Hensley had a policy with State Farm on the property. Hensley continued to make the premium payments and the policy continued to be renewed. Further, State Farm was informed of the change in the property's status. Read the court decision
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Reprinted courtesy of Tred R. Eyerly - Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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