Hotel Owner Makes Construction Defect Claim
January 28, 2013 —
CDJ STAFFA lawsuit has been filed over the construction of the GrandStay Hotel & Conference Center in Apple Valley Minnesota. Apple Valley GSRS, LLC, who invested in the hotel, has sued Cole Group Architects and Cornerstone Construction, alleging that the architects design was not to industry standards and that the builder used inferior materials and techniques. The lawsuit makes claim of "significant damage."
The hotel hired an engineer who subsequently recommended that all the stucco and the roof should be be replaced. The stucco has shown signs of cracking and crumbling. The hotel states that the roof has problems with leaking.
Cornerstone has denied the hotel's claims. They have also counter-sued their subcontractors.
Read the court decisionRead the full story...Reprinted courtesy of
Protect Workers From Falls: A Leading Cause of Death
August 14, 2018 —
Mark McGhiey - Construction ExecutiveOne of the leading causes of death for construction workers is falls from elevated surfaces, according to the Bureau of Labor Statistics. In 2016, these accidents accounted for more than 30 percent of all construction fatalities. The top four causes of worker deaths (excluding highway collisions) in the private sector construction industry are:
- falls: 384 (38.7%);
- struck by object: 93 (9.4 percent);
- electrocutions: 82 (8.3 percent); and
- caught-in/between:1 72 (7.3 percent).
One of the most common — and costly — causes of claims occur when construction workers fall from elevated surfaces. These accidents represent more than 30 percent of all construction claim payments.
Reprinted courtesy of
Mark McGhiey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
No Conflict in Successive Representation of a Closely-Held Company and Its Insiders Where Insiders Already Possess Company’s Confidential Information
August 02, 2017 —
Renata L. Hoddinott, David W. Evans, & Howard M. Garfield - Haight Brown & Bonesteel LLPIn Beachcomber Management Crystal Cove, LLC v. Superior Court (Salisbury) (No. G054078, filed June 28, 2017; pub. and mod. order July 28, 2017), the Fourth Appellate District granted a writ of mandate vacating a trial court’s order disqualifying defendants’ counsel.
In Beachcomber, plaintiffs filed a shareholder derivative action against defendants Beachcomber Management and Douglas Cavanaugh (collectively, “defendants”) alleging defendants abused their position and mismanaged nominal defendant and similarly named Beachcomber at Crystal Cove (“Beachcomber”). Between 2009 and 2011, defendants and Beachcomber had each hired Kohut & Kohut LLP (“Kohut”) to represent them on at least four different occasions. In the underlying action, defendants hired Kohut again to represent them, while Beachcomber hired another law firm to represent it.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Renata L. Hoddinott,
David W. Evans and
Howard M. Garfield Read the court decisionRead the full story...Reprinted courtesy of
Seven Trends That Impact Commercial Construction Litigation in 2021
March 29, 2021 —
Jeffrey Kozek & E. Mitchell Swann - Construction Executive2021 stands to bring sizeable change to the commercial construction industry as trends that had been on the horizon meet the impact of the pandemic. That means it will be even more important for architects, engineers, contractors and owners to prioritize revisiting their project plans as the industry adapts so that they can better reduce their likelihood of facing litigation down the line.
While many in the industry will struggle to react to the ongoing environment, building stronger contractual understanding and preparedness to adapt could be the difference in being able to complete the work and move onto the next project in a timely manner. Meanwhile, contractors are using a wider usage of technologies for improved project communication and efficiency.
In the coming year, there are seven trends will have the greatest impact on commercial construction.
Reprinted courtesy of
Jeffrey Kozek and E. Mitchell Swann, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Recovering Attorney’s Fees and Treble Damages in Washington DC Condominium Construction Defect Cases
April 03, 2023 —
Nicholas D. Cowie - Cowie Law GroupDC Condominium Association’s Can Recover Attorney’s Fees, Litigation Costs and Treble Damages in Construction Defect Cases Involving Misrepresentation
The District of Columbia Consumer Protection Procedures Act (“CPPA”) § 28-3905(k)(1)(A) creates a private legal claim (a/k/a “cause of action”) which can be asserted by a condominium unit owners association (“condominium association”) on behalf of two or more of its unit owner members who are misled by a condominium developer regarding the condition or quality of a newly constructed or newly converted condominium. Under the DC CPPA, a successful claimant is entitled to recover “treble damages” (i.e., three times the amount of damages it proves), plus recovery of “reasonable attorney’s fees” incurred in prosecuting the construction defect claim and “[a]ny other relief the court determines proper,” including non-attorney fee litigation expenses. DC CPPA § 28-3905(k)(2)(A), (B) and (F).
The CPPA Creates the Legal Claim that Allows a Condominium Associations to Recover Attorney’s Fees, Litigation Costs and Treble Damages
The DC CPPA is a consumer-oriented statute designed to protect Washington DC consumers misled in connection with the purchase of consumer “real estate,” including transactions involving the purchase of a condominium unit and interest in the condominium common elements. Typically, these cases involve the sale of a newly constructed or newly converted condominium, which, contrary to developer representations, contains latent construction defects.
Read the court decisionRead the full story...Reprinted courtesy of
Nicholas D. Cowie, Cowie Law GroupMr. Cowie may be contacted at
ndc@cowielawgroup.com
Once Again: Contract Terms Matter
May 11, 2020 —
Christopher G. Hill - Construction Law MusingsI know, you’ve heard this over and over again here at Construction Law Musings: courts in Virginia will interpret a contract strictly and in a manner that gives meaning to its unambiguous terms.
A recent case out of the Eastern District of Virginia federal court, White Oak Power Constructors v. Mitsubishi Hitachi Power Systems, reinforces this point. The basic facts of the case relevant to this discussion and the Court’s opinion are these. Old Dominion Electric Cooperative (ODEC) hired White Oak Power Constructors (White Oak) to build a natural gas power plant. The contract between ODEC and White Oak provided for liquidated damages for delay and also contained a risk of loss provision making ODEC responsible for certain losses or damages due to property damage at the plant. I highly recommend that you read the facts of the case in full to get the details of the terms of these clauses.
Needless to say (or this case wouldn’t be the subject of a construction law blog), the project ran past completion date and liquidated damages were assessed to the tune of more than $50,000,000.00. The delay was alleged to have been caused in substantial part by property damage due to weather, fire, and ice among other causes.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Independent Contractor v. Employee. The “ABC Test” Does Not Include a Threshold Hiring Entity Test
October 03, 2022 —
Garret Murai - California Construction Law BlogIn 2018, in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018), the California Supreme Court overturned nearly thirty years of jurisprudence governing the manner in which workers are classified as employees or independent contractors. The Dynamex decision replaced the “Borello test,” derived from a case of the same name, S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989), in which the California Supreme Court at the time set forth a variety of factors to be considered when determining whether a worker was an employee or independent contractor.
The Dynamex decision replaced with the “Borello test” with the “ABC test.” Under the ABC test, a worker can be deemed an independent contractor if three conditions are met:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independent established trade, occupation, or business
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
California Appeals Court Remands Fine in Late Completion Case
November 18, 2011 —
CDJ STAFFThe California Court of Appeals in Stanislaus County has reversed the decision of the lower court in Greg Opinski Construction Inc. v. City of Oakdale. The earlier court had awarded the city of judgment of $54,000 for late completion, $3,266 for repair of construction defects and interest, and $97,775 in attorneys’ fees. The late completion of the project was due to actions by the City of Oakdale, however, the court rejected Opinski’s argument that the California Supreme Court decision in Kiewit did not allow this, as his contract with the city established a procedure for claiming extensions.
The appeals court noted that the Kiewit decision has been “criticized as an unwarranted interference in the power of contracting parties to shift the risk of delays caused by one party onto the other party by forcing the second party to give the first notice of any intention to claim an extension of time based on delays caused by first.” They cited Sweet, a professor at Boalt Hall, UC Berkeley’s law school, that Kiewit “gutted” the “provision that conditions the contractor’s right to claim an extension of time for delays beyond his control.”
Further changes in California law in response to the Kiewit decision lead to the current situation which the court characterized as “if the contractor wished to claim it needed an extension of time because of delays caused by the city, the contractor was required to obtain a written change order by mutual consent or submit a claim in writing requesting a formal decision by the engineer.”
Opinski also argued that the lower court misinterpreted the contract. The Appeals court replied that “Opinski is mistaken.” He cited parts of the contract regarding the increase of time, but the court rejected these, noting that “an inability to agree is not the same as an express rejection.”
The court also rejects Opinski’s appeal that “the evidence the project was complete earlier than September 30, 2005, is weightier than the evidence to the contrary,” which they describe as “not a winning appellate argument.” The court points out that the role of an appeals court is not to reweigh the evidence, but to determine “whether the record contains substantial evidence in support of the judgment.”
The court did side with Opinski on one question of the escrow account. They rejected most of his arguments, repeating the line “Opinski is mistaken” several times. They decided that he was mistaken on the timing of the setoff decision and on whether the city was the prevailing party. However, the appeals court did find that Opinski was not liable for interest on the judgment.
The appeals court rejected the awarding of prejudgment interest to the city as the funds from which the judgment was drawn was held in an escrow account. The court noted that the city had access to the funds and could “access the funds when it determined that Opinski had breached the contract.” The appeals court noted that the judgment exhausted the escrow balance and remanded the case to the lower court to determine the amount own to Opinski.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
