Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 —
Beverley BevenFlorez CDJ STAFFThe Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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North Carolina Federal Court Holds “Hazardous Materials” Exclusion Does Not Bar Duty to Defend Under CGL Policy for Bodily Injury Claims Arising Out of Direct Exposure to PFAs
December 07, 2020 —
Paul A. Briganti - White and Williams LLPOn October 19, 2020, the U.S. District Court for the Western District of North Carolina held that a “hazardous materials” exclusion contained in a CGL policy did not preclude a duty to defend the insured against claims alleging bodily injury resulting from direct exposure to perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), which are man-made chemicals within the group of per- and polyfluoroalkyl substances (PFAs).[1]
In Colony Insurance Company v. Buckeye Fire Equipment Company, the insured was named a defendant in hundreds of underlying suits relating to its manufacture of fire equipment containing aqueous film-forming foam (AFFF), a fire suppressant.[2] The underlying plaintiffs alleged that: (a) the AFFF contained PFOS and PFOA; (b) PFOA and PFOS are highly carcinogenic; and (c) exposure to AFFF contained in the defendants’ products caused bodily injury or property damage. Around a third of the underlying complaints alleged harm from both direct exposure to the foam and exposure through the environment. Representative language from those complaints was: “[d]uring [underlying plaintiff’s] employment as a firefighter and firefighter instructor, he was significantly exposed to elevated levels of PFOS and PFOA in their concentrated form as a result of regular contact with [d]efendant’s AFFF products and through PFOS and PFOA having contaminated the FireCollege well system.”
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Paul A. Briganti, White and Williams LLPMr. Briganti may be contacted at
brigantip@whiteandwilliams.com
Coffee Beans, Mars and the 50 States: Civil Code 1542 Waivers and Latent Defects
March 19, 2015 —
Garret Murai – California Construction Law BlogA few years ago, Pulitzer Prize-winning reporter Charles Duhigg wrote a book that was on the New York Times bestseller list for over 60 weeks,
The Power of Habit: Why We Do What We Do in Life and Business. As its title suggests, the book is about habits, but more importantly about how we can change our habits to make ourselves happier, healthier and more productive.
In his book, Duhigg talks about how habits are “encoded into the structures of our brain” and how this is an advantage because, as an example, “it would be awful if we had to relearn how to drive after every vacation.”
Duhigg’s driving example made me think about how much we assume as well, and how, from a practical perspective, it is almost essential that we do so. Using his car example, when we put our key into the ignition and turn it, we assume that the engine will start, and further assume that when we put our foot on the gas pedal that the car will move. If we didn’t or couldn’t assume this, and the many other things we assume in our daily lives, our brains would likely go into overload.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Tarriffs, a Pandemic and War: Construction Contracts Must Withstand the Unforeseeable
May 16, 2022 —
Brett Moritz, Adrian Bastianelli III & Adam Handfinger - Construction ExecutiveSince the tariffs on steel and the first wave of the COVID-19 pandemic, the construction industry has been reeling from the impact of material shortages and price increases, labor shortages, breakdowns in the supply chain and the inflationary effect of these issues. Unfortunately, the war in Ukraine has only exacerbated the situation.
International conflicts can constrain supply, resulting in delays and price increases for contractors, subcontractors and suppliers. The disruption caused by the war is expected to be particularly acute due to the role that Russia and Ukraine play in the world economy and the effect of the economic sanctions that have been imposed on Russia by the United States and other countries. Russia controls approximately 10% of the global copper reserves and is estimated to produce about 10% of the world’s nickel supply. It also provides at least 30% of Europe’s oil and natural gas. Ukraine is a significant source of raw materials, such as iron. Thus, the war will cause significant shortages and price increases to the global construction industry. There are already reports of delays and cost increases for commodities such as nickel, aluminum, copper and—most importantly—steel, which have resulted in impacts to construction costs and schedules. Suppliers are especially sensitive to the volatile markets caused by these conditions. Some are insisting on automatic price increases in their purchase orders.
All of this, not to mention the anticipation of what may come next, points to the necessity for a new paradigm to achieve a successful project. It is more important today than ever that owners, contractors, subcontractors and suppliers reasonably address the economic and time impacts of these unforeseeable events in preparing contracts for future work and in administering existing contracts. Otherwise, the risk of a default on more than one level may put projects in jeopardy, to no one’s benefit.
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Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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$17B Agreement Streamlines Disney World Development Plans
July 22, 2024 —
Derek Lacey - Engineering News-RecordWalt Disney Parks and Resorts received the green light on $17 billion in development plans in and around Walt Disney World in Orange County, Fla,, garnering approval June 12 from the board of the Central Florida Tourism Oversight District (CFTOD) for its sprawling capital plan.
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Derek Lacey, Engineering News-Record
Mr. Lacey may be contacted at laceyd@enr.com
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Force Majeure Under the Coronavirus (COVID-19) Pandemic
March 29, 2021 —
Lindsay T. Watkins - Ahlers Cressman & Sleight PLLCAs COVID-19 disrupts work and life as we know it, the question many contractors have is what protections are available against the inevitable project impacts and delays? Generally, construction contracts require a contractor to timely perform work until project completion or potentially face damages (liquidated or actual) and possible termination. When events occur, however, that are beyond our control (such as a national pandemic), it is important to review and understand what contract provisions or avenues are available for potential relief.
- Review Your Contract For A Force Majeure Provision.
A “force majeure” contract provision is commonly included in construction contracts, service agreements, purchase orders, etc. It typically covers events or conditions that can be neither anticipated nor controlled. These provisions, however, will vary greatly from contract to contract and may not include the language “force majeure” but rather may be included in general delay or impact clauses. For example, some common provisions include:
- Washington State Department of Transportation Clause (2018 Standard Specifications for Road, Bridge and Municipal Construction): The Contractor shall rebuild, repair, restore, and make good all damages to any portion of the permanent or temporary Work occurring before the Physical Completion Date and shall bear all the expense to do so, except damage to the permanent Work caused by: (a) acts of God, such as earthquake, floods, or other cataclysmic phenomenon of nature, or (b) acts of the public enemy or of governmental authorities; or (c) slides in cases where Section 2-03.3(11) is applicable; Provided, however, that these exceptions shall not apply should damages result from the Contractor’s failure to take reasonable precautions or to exercise sound engineering and construction practices in conducting the Work.
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Lindsay T. Watkins, Ahlers Cressman & Sleight PLLCMs. Watkins may be contacted at
Lindsay.Watkins@acslawyers.com
Housing Gains Not Leading to Hiring
October 25, 2013 —
CDJ STAFFAlthough construction spending has been rising steadily, the Labor Department noted that most of the 20,000 jobs added by the construction industry in September were for nonresidential construction. In a year that saw an 18% gain in residential construction spending, there was only an increase of 4.8% in employment.
The lack of hiring seems to indicate a lingering lack of confidence in the homebuilding market. Employers are having workers do overtime, rather than employ additional people.
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Traub Lieberman Attorneys Recognized as 2024 New York – Metro Super Lawyers®
November 11, 2024 —
Traub LiebermanTraub Lieberman is pleased to announce that seven Partners from the Hawthorne, NY office have been selected to the 2024 New York - Metro Super Lawyers list.
2024 New York – Metro Super Lawyers
- Copernicus Gaza – Insurance Coverage
- Jonathan Harwood – Professional Liability
- Lisa Rolle – Construction Litigation
- Hillary Raimondi – Employment Litigation
- Christopher Russo – Professional Liability
- Lisa Shrewsberry – Professional Liability
- Stephen Straus – Insurance Coverage
Lisa Shrewsberry was also selected to the Top 25: 2024 Westchester County Super Lawyers® list.
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Traub Lieberman
