Maintenance Issues Ignite Arguments at Indiana School
January 31, 2014 —
Beverley BevenFlorez-CDJ STAFFStudents and faculty at Roosevelt College and Career Academy in Gary, Indiana have dealt with the building’s burst pipes since last year, however, the recent cold temperatures have worsened the issue, “disrupting classes and causing costly repairs,” according to the Post-Tribune.
EdisonLearning now runs the school: “The state tapped the private, for-profit education management company for Roosevelt after six straight years of anemically low test scores.” The “lengthy agreement” between EdisonLearning and the school district states holds the district “responsible for major repairs and to maintain the building just like the other schools it runs.”
“The money we were provided is for academic purposes, not for the operation of the building,” said Michael Serpe, spokesman for EdisonLearning told the Post-Tribune. “If you rent a home and the heat doesn’t work, you contact the landlord.”
“If the building is monitored properly, we could stop these problems but we have to get to them earlier,” said Charles Prewitt, the district’s director of building, grounds and maintenance, as reported by the Post-Tribune. Prewitt added that part of the maintenance problems is lack of access. He alleges that “EdisonLearning changed the locks and provided a swipe card for only one door.”
“There always seem to be reasons that things don’t get fixed at Roosevelt when they get fixed everywhere else,” Serpe retorted.
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No Duty to Defend Under Renter's Policy
May 03, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe court agreed that the insurer had no potential liability under a policy where the insured allegedly concealed facts and made misrepresentations regarding the condition of the property it sold. State Farm Fire & Cas. Co. v. TFG Enterprises, LLC, 2021 Neb. LEXIS 27 (Neb. Feb. 19, 2021).
TFG sold a house to Jeffrey Barkhurst. Thereafter, Barkhurst filed suit alleging that TFG failed to disclose and actively concealed several defects, including water intrusion, the presence of mold, substandard repairs and structural issues. State Farm agreed to TFG defend under a reservation of rights. State Farm then filed a declaratory judgment action to determine its obligations under the policy.
State Farm relied upon various exclusions in the rental policy issued to TFG. The exclusions provided there would be no liability coverage for "property damage to property owned by an insured"; "property damage to property rented to, occupied or used by or in the care of the insured"; or "property damage to premises the insured sells. . . if the property damage arises out of these premises."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Do We Really Want Courts Deciding if Our Construction Contracts are Fair?
March 19, 2015 —
Christopher G. Hill – Construction Law MusingsAs I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would
essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction.
Of course, as soon as I posted last week, my friend and colleague
Scott Wolfe (@scottwolfejr) commented on that post and then
gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or
discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that
you should read your contracts carefully because they will be the law of your business relationship in the future.
The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.”
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Colorado Supreme Court Weighs in on Timeliness of Claims Against Subcontractors in Construction Defect Actions
March 16, 2017 —
Jean Meyer - Colorado Construction LitigationOn February 27, 2017, the Colorado Supreme Court announced its decision in the Goodman v. Heritage Builders, No. 16SA193, 2017 CO 13 (Colo. February 27, 2017) case. In ten short pages, the Colorado Supreme Court completely reshuffled Colorado construction law with respect to application of the statutes of limitation and repose on third-party claims in construction defect cases. Specifically, the Colorado Supreme Court overruled a series of earlier Court of Appeals' decisions that found C.R.S. § 13-80-104(1)(b)(II) (“104(1)(b)(II)”) had no effect on the six-year statute of repose. For context, 104(1)(b)(II) permitted third-party actions for indemnity and contribution to toll until ninety days after the claims in the underlying action were resolved by settlement or judgment. In the construction context, 104(1)(b)(II) was intended to allow a general contractor’s claims against liable subcontractors to toll for the statutorily defined period. This allowed the general contractor to first focus its attention on defending the claims against and thereafter to pursue its claims against the subcontractors.
However, beginning in 2008, in the Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008) case, the Colorado Court of Appeals began chipping away at the force of 104(1)(b)(II). This trend continued in the Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24, 296 P.3d 145 decision, the Sierra Pac. Indus., v. Bradbury, 2016 COA 132, _ P.3d_ decision, and culminating in the Sopris Lodging, LLC v. Schofield Excavation, Inc., 2016 COA 158, reh'g denied (Nov. 23, 2016) decision. Effectively, in these decisions, the Colorado Court of Appeals determined that third-party claims could not be brought beyond Colorado’s six-year statute of repose, regardless if they were brought within the ninety day tolling provision set forth in 104(1)(b)(II).
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Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLCMr. Meyer may be contacted at
meyer@hhmrlaw.com
Governor Signs Permit Extension Bill Extending Permit Deadlines to One Year
October 23, 2018 —
Garret Murai - California Construction Law BlogIt’s like that feeling you got when your teacher said you have another week to complete your group project.
On September 21, 2018, Governor Brown signed AB 2913, which, for the first time, provides a uniform 12-month period across the state for work to commence before a building permit expires. Previously, the period was six months.
In addition to doubling the expiration period, the statute includes a “justifiable cause” provision permitting local building departments to extend the time for one or more additional periods of not more than 180 days per extension upon written demonstration of “justifiable cause for the extension.”
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Sochi Construction Unlikely to be Completed by End of Olympic Games
February 11, 2014 —
Beverley BevenFlorez-CDJ STAFFAs journalists and visitors descended upon Sochi, Russia for this winter’s Olympic Games, they reported “used linen, improper toilets, poor wiring, unclean water and loose fixtures” using the Twitter hash tag @SochiProblems, according to The International Business Times. Furthermore, it is doubtful that the construction work “in and around Sochi” will be completed by February 23rd—the official end of the games.
The International Business Times article features photographs of various unfinished construction sites including an apartment building, hotels, a sports store, and other buildings. The Olympic opening ceremony took place on February 7th.
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The Oregon Tort Claims Act (“OTCA”) Applies When a Duty Arises from Statute or Common Law and is Independent from The Terms of a Specific Contract. (OR)
February 25, 2014 —
Natasha Khachatourians – Scheer & Zehnder LLP Liability NewsletterCase: Jenkins v. Portland Housing Authority, 260 Or.App. 26, 316 P.3d 369 (2013).
Issue: Do tort claims arising from a rental agreement fall within the exemption from the definition of a tort under the OTCA? NO.
Facts: Plaintiff rented an apartment in a public housing complex operated by the Portland Housing Authority (“PHA”). While walking in the hallway of the building, Plaintiff slipped on a puddle of water that had leaked from a broken washing machine in a nearby laundry room. Plaintiff fell and was injured. The trial court granted summary judgment to PHA, finding that the PHA was considered a public body under the OTCA and, as a result, enjoyed discretionary immunity from liability.
The issue before the court was whether the OTCA applied to a claim under the Oregon Residential Landlord Tenant Act (“ORLTA”) since an ORLTA claim generally arises out of a rental agreement. Plaintiff did not plead breach of a specific provision of the rental agreement, and she conceded that she had alleged a breach of a legal duty resulting in injuries. Plaintiff argued, however, that her claim involved a duty arising from the rental agreement. As such, she contended her claim fell within the exception of the definition of a “tort” under OTCA, and thus the OTCA should not apply to give PHA discretionary immunity.
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Natasha Khachatourians, Scheer & Zehnder LLP Ms. Khachatourians may be contacted at
natashak@scheerlaw.com
Philadelphia Enacts Commercial Property Assessed Clean Energy (C-PACE) Program
October 21, 2019 —
Timothy Davis & Willliam Johnston - White and Williams LLPOn August 14, 2019, Mayor Jim Kenney signed a bill authorizing, through C-PACE loans, the financing of clean energy, alternative energy and water conservation projects for eligible commercial properties in Philadelphia. Philadelphia City Council unanimously voted to approve the C-PACE program on June 20, 2019. The program will be administered by the Philadelphia Energy Authority. Third-party capital providers (not the Philadelphia Energy Authority) will originate C-PACE financings for qualified projects.
C-PACE “assessments” will encumber the applicable property in a first lien position akin to a real estate tax. Documentation among the property owner, the City of Philadelphia, and the third party capital provider (identified in the ordinance as the “financial institution”) will provide, among other things, that the assessments will be payable and fully amortize over the term of the financing (i.e., 30 years) and will not be accelerated during its term. Importantly, before a C-PACE financing can be originated and the underlying property assessed, notice of the property owner’s desire to secure C-PACE financing under the program must be provided to the holder of a mortgage on the subject property and the holder of the mortgage must provide the property owner and the City of Philadelphia with its written consent. Without the mortgage lender’s consent, the C-PACE financing cannot be consummated.
Reprinted courtesy of
Timothy Davis, White and Williams LLP and
William Johnston, White and Williams LLP
Mr. Davis may be contacted at davist@whiteandwilliams.com
Mr. Johnston may be contacted at johnstonw@whiteandwilliams.com
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