Insurer's Summary Judgment Motion on Business Risk Exclusions Fails
November 15, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer unsuccessfully moved for summary judgment on the CGL policy's business risk exclusions. Scottsdale Ins. Co. v. TL Spreader, LLC, (W.D. La. Oct. 20, 2017).
Helena Chemical Company contracted with its customer Wild Farms to sell and apply certain herbicides and pesticides to Wild Farms' 123 acre rice filed. Helena subcontracted the TL Spreader, LLC (TLS) to apply the chemicals to Wild Farm's rice field. The TLS employee failed to properly neutralize a chemical being used in the spray.
TLS finished its work on May 6, 2014, completing all its work for Helena's contract with Wild Farms. Three days after completion of the spraying, the rice crop first began to exhibit physical damage in the form of abnormal stunting, lesions, yellowing and death.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Hundreds Celebrated the Grand Opening of the Associated Builders and Contractors of Southern California Riverside Construction Training Center
February 14, 2023 —
Associated Builders and ContractorsRIVERSIDE, Calif., Feb. 10, 2023 (GLOBE NEWSWIRE) -- Today the Associated Builders and Contractors Southern California Chapter (ABC), hosted hundreds of community members as they cut the "ribbon" of their third training center in Southern California.
"Today is a celebration, but it also represents a continued commitment by ABC and our membership to supply a skilled, trained, and safe construction workforce for Southern California," stated Nick McFayden, ABC SoCal's Board Chair.
Jon Krystafik, Vice Chairman of the Training Trust commented, "Our training facility is unique. You may have toured other facilities but with ours you will see we don't just train one craft. Here Apprentices and Craft trainees are receiving cutting edge training in Electrical, Plumbing, Low Voltage and HVAC/Sheet Metal." Krystafik added, "Our trustees had a dream 10 years ago to train residents in the inland empire. Today it is a reality!"
ABC Southern California Chapter is an association of contractors that believe in the Merit Shop Philosophy. Merit shop encourages open competition and a free enterprise approach that awards contracts and employment based solely on merit, safety, quality, and cost, regardless of labor affiliation. The chapter is one of 68 throughout the country and represents nearly 400 member companies.
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Quick Note: Discretion in Determining Prevailing Party for Purposes of Attorney’s Fees
January 25, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn prior articles I have discussed that courts apply the significant issues test to determine the prevailing party for purposes of being entitled to attorney’s fees. A party that recovers an affirmative judgement is NOT the de facto prevailing party for purposes of an entitlement to attorney’s fees in a breach of contract action (or a construction lien foreclosure action). This was the issue in a recent appeal discussed here where the party that recovered an affirmative judgment on a breach of contract case was not deemed the prevailing party for purposes of attorney’s fees. While the party prevailed on one of its claims, it did not prevail on others, and it recovered less than half of the damages it originally sought. The appellate court, affirming the trial court, held that the trial court has discretion to determine that the party that recovered an affirmative judgement was not the prevailing party entitled to its attorney’s fees under the signifiant issues test. This was not what the party was expecting when the attorney’s fees it expended far exceeded the judgment it recovered.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Two Firm Members Among the “Best Lawyers in America”
September 01, 2016 —
A&C Crew – Ahlers & Cressman PLLCWe are excited to announce that John P. Ahlers has been selected as a “Lawyer of the Year” in Construction Law, and John P. Ahlers and Paul R. Cressman, Jr. have been selected as “Best Lawyers in America” in Construction Litigation by Best Lawyers for 2017. Best Lawyers has recognized Mr. Ahlers and Mr. Cressman as “Best Lawyers in America” since 2007 and 2013, respectively.
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AB 1701 – General Contractor Liability for Subcontractors’ Unpaid Wages
December 01, 2017 —
Alex Baghdassarian, Eric M. Gruzen, & Kerri Sakaue – Peckar & Abramson, P.C.Contractors will soon find themselves on the frontline of wage disputes on projects if laborers working on behalf of their subcontractors or vendors are unpaid. On October 14, 2017, Governor Jerry Brown signed into law AB 1701, which will allow laborers to seek direct compensation from the general contractors on private projects, if their wages remain unpaid.
The legislative mandate requires direct contractors—defined as contractors who have a direct contractual relationship with an owner—to assume liability for any debt incurred by a subcontractor, at any tier, for a wage claimant’s performance of labor included in the subject of the original contract between the general contractor and the owner. The California bill will apply to all private construction contracts entered into on or after January 1, 2018. Previously, all laborers could maintain a mechanic’s lien claim against private property, without needing to serve a 20-day preliminary notice, but there was no statutory obligation on the “direct contractors” to reimburse the laborers their unpaid wages.
Reprinted courtesy of Peckar & Abramson, P.C. attorneys
Alex Baghdassarian,
Eric M. Gruzen and
Kerri Sakaue
Mr. Baghdassarian may be contacted at abaghdassarian@pecklaw.com
Mr. Gruzen may be contacted at egruzen@pecklaw.com
Ms. Sakaue may be contacted at ksakaue@pecklaw.com
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Enforcement Of Contractual Terms (E.G., Flow-Down, Field Verification, Shop Drawing Approval, And No-Damage-For-Delay Provisions)
May 04, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhat you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v. Turner Construction Co., 2019 WL 7174550 (4th Cir. 2019), where the Court started off by stressing, “One of our country’s bedrock principles is the freedom of individuals and entities to enter into contracts and rely that their terms will be enforced.” Id. at *1.
This case involved a dispute between a prime contractor and its precast concrete subcontractor on a federal project. The subcontractor filed a Miller Act payment bond lawsuit. The trial court ruled against the subcontractor based on…the subcontract’s terms! So, yes, what you contractually agree to matters.
Example #1 – The subcontractor fabricated and installed precast concrete panels per engineering drawings. However, the parking garage was not built per dimensions meaning the panels it fabricated would not fit. The subcontractor had to perform remedial work on the panels to get them to fit. The subcontractor pursued the prime contractor for these costs arguing the prime contractor should have field verified the dimensions. The problem for the subcontractor, however, was that the subcontract required the subcontractor, not the prime contractor, to field verify the dimensions. Based on this language that required the subcontractor to field verify existing conditions and take field measurements, the subcontractor was not entitled to its remedial costs (and they were close to $1 Million). Furthermore, and of importance, the Court noted that the subcontract contained a flow down provision requiring the subcontractor to be bound by all of the terms and conditions of the prime contract and assume those duties and obligations that the prime contractor was to assume towards the owner. While this flow-down provision may often be overlooked, here it was not, as it meant the subcontractor was assuming the field verification duties that the prime contractor was responsible to perform for the owner.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Toddler Crashes through Window, Falls to his Death
January 24, 2014 —
Beverley BevenFlorez-CDJ STAFFTwo-year old Alijah Glenn fell 17 stories to his death after crashing through “a floor-to-ceiling window” at the Crystal Tower apartments in East Cleveland, Ohio, on January 13th, according to The Plain Dealer. Solandra Wallace, East Cleveland’s building and housing manager, told The Plain Dealer that “the city inspects the building whenever a complaint is filed and does not have regular inspections.” The apartment complex “was built in 1966 and would have to adhere to that era's building code standards,” according to the article.
The Plain Dealer reports that three complaints have been filed at the Crystal Tower since 2010. A resident complained in 2012 that “her apartment was falling apart, causing water damage and emitting a foul odor,” however, by the time an inspector arrived the ceiling was being fixed. In 2011, an “unspecified roof leak” turned out to be “condensation from a hot pipe.” An elevator was reported inoperable in 2010, however the claim was deemed “invalid” since the elevator worked when inspectors arrived.
The Cuyahoga County Medical Examiner ruled Glenn’s death accidental.
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$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed to Prove Supplier’s Negligence or Breach of Contract Caused an SB800 Violation
March 16, 2017 —
Jon A. Turigliatto, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinAcqua Vista Homeowners Assoc. v. MWL Inc. (2017) 2017 WL 371379
COURT OF APPEAL EXTENDS GREYSTONE HOMES, INC. v. MIDTEC, INC., HOLDING THAT CIVIL CODE §936 CREATES A NEGLIGENCE STANDARD FOR CLAIMS AGAINST MATERIAL SUPPLIERS BROUGHT UNDER SB800.
The Fourth District California Court of Appeal recently published its decision Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 2017 WL 371379, holding that claims against a material supplier under SB800 (Civil Code §895 and §936) require proof that the SB800 violation was caused by the supplier's negligence or breach of contract.
Civil Code §936 states in relevant part, that it applies "to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract .... [T]he negligence standard in this section does not apply to any general contractor, subcontractor, material supplier, individual product manufacturer, or design professional with respect to claims for which strict liability would apply."
Acqua Vista Homeowners Association (the "HOA") sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development. The HOA's complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building. After trial, the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury's finding that MWI was 92% responsible for the HOA's damages.
MWI filed a motion for a directed verdict and motion for judgment notwithstanding the verdict on the grounds that the HOA had failed to present any evidence that MWI had caused an SB800 violation as a result of its negligence or breach of contract, and had therefore failed to prove negligence and causation as required by SB800, citing to Greystone Homes, Inc. v. Midtec, Inc.(2008) 168 Cal.App.4th 1194. The trial court denied both motions, relying on the last sentence of Civil Code §936, which states in part, "[T]he negligence standard in this section does not apply to any ... material supplier ... with respect to claims for which strict liability would apply."
The Court of Appeal reversed and ordered the trial court to enter judgment in favor of MWI. The Court of Appeal relied on the legislative history of S8800 and Greystone, which held that the first sentence of Civil Code §936 contains an "explicit adoption of a negligence standard" for S8800 claims against product manufacturers. The Court of Appeal reasoned that since §936 treats product manufacturers and material suppliers identically, the holding of Greystone must equally apply to material suppliers.
Because the complaint did not state a common law cause of action for strict liability, the HOA was required to prove that the damages were caused by MWI' s negligence or breach of contract. Although, the Court of Appeal found that while the HOA's evidence may have supported a finding that the manufacturer of the leaking pipes was negligent, the HOA had not provided any evidence that MWI, the supplier, had failed to supply the type of pipe ordered, acted unreasonably in failing to detect any manufacturing defects present in the pipe, or damaged it during transportation. Accordingly, the HOA could not prove that the alleged S8800 violation was caused, in whole or in part, by MWI' s negligence, omission, or breach of contract.
In light of the decision, homeowner and associations that allege only violations of SB800 standards without asserting a common law cause of action for strict liability cannot prevail by simply producing evidence of a violation, and are required to prove that violation was caused by the negligent act or omission, or breach of contract, of the defendant contractor, material supplier, and/or product manufacturer.
Reprinted courtesy of
Jon A. Turigliatto, Esq, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Esq., Chapman Glucksman Dean Roeb & Barger
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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