Government’s Termination of Contractor for Default for Failure-To-Make Progress
July 10, 2023 —
David Adelstein - Florida Construction Legal UpdatesWhenever you elect to terminate the other party for cause or for default, you need to JUSTIFY the basis of the cause or default. The reason being is that a termination for default or cause is the harshest contractual remedy. This is why the other party will typically either (i) convert the termination for default into one for convenience, or (ii) if there is no termination for convenience provision in the contract, argue the terminating party breached the contract by terminating the contract without rightful justification.
The key is if you are going to terminate a party for cause of default, make sure you have memorialized the persuasive reasons for exercising the termination, and can otherwise reasonably support the justification. Do not, and I repeat, do not haphazardly exercise a termination for default and think you do not have to justify the basis for the termination.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Breach of an Oral Contract and Unjust Enrichment and Implied Covenant of Good Faith and Fair Dealing
December 23, 2023 —
David Adelstein - Florida Construction Legal UpdatesIn an ideal world, parties would have written contracts. In reality, parties should endeavor to ensure every transaction they enter into is memorialized in a written contract. This should not be disputed. Of course, written contracts are not always the case. Parties enter transactions too often whereby the transaction is not memorialized in a clean written agreement. Rather, it is piecemealing invoices, or texts, or discussions, or proposals and the course of business. A contract can still exist in this context but it is likely an oral contract. Keep in mind if there is a dispute, what you think the oral contract says will invariably be different than what the other party believes the oral contract says. This “he said she said” scenario gets removed, for the most part, with a written contract that memorializes the written terms, conditions, and scope.
A recent federal district court opinion dealt with the alleged breach of an oral contract. In Movie Prop Rentals LLC vs. The Kingdom of God Global Church, 2023 WL 8275922 (S.D.Fla. 2023), a dispute concerned the fabrication and installation of a complex, modular stage prop to be used for an event. But here lies the problem. The dispute was based on an oral contract and invoices. The plaintiff, the party that was fabricating the modular stage prop, sued the defendant, the party that ordered the stage prop for the event, for non-payment under various claims. The defendant countersued under various claims.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Can Businesses Resolve Construction Disputes Outside of Court?
August 19, 2024 —
Scott L. Baker - Los Angeles Litigation BlogTime is of the essence in any construction project. So, if a dispute arises at any point, business owners generally wish to avoid the chance of a time-consuming case going to court.
Can California construction businesses
manage these disputes effectively outside of court? It is possible in some cases. Business owners should carefully consider these three steps.
1. Go Back to the Contract
Even if the contract is at the center of the dispute, it is important to refer to any details regarding dispute resolution included within the document. It is common for contracts to have some form of a dispute resolution clause. In such a case, both parties should follow the steps outlined in that agreement.
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Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
Design Immunity Defense Gets Special Treatment on Summary Judgment
March 29, 2021 —
Garret Murai - California Construction Law BlogThis may be one that is more for the lawyers than it is for the contractors or owners.
If you’ve ever filed a motion for summary judgment or summary adjudication you know the standard is clear. You’re going to lose if the court finds a disputed issue of material fact. In other words, since summary judgment or summary adjudication is such an extreme remedy – you win without having to go to trial after all – the standard is pretty high. Thus, if there’s a dispute as to a material fact (was the light green or was it red?) it’s enough that the court will deny your motion.
That is, unless you’re seeking summary judgment or adjudication on a design immunity defense as the next case, Menges v. Department of Transportation, Case No. G057643 (December 24, 2020), reveals.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Lost Productivity or Inefficiency Claim Can Be Challenging to Prove
May 02, 2022 —
David Adelstein - Florida Construction Legal UpdatesOne of the most challenging claims to prove is a lost productivity or inefficiency claim. There is an alluring appeal to these claims because there are oftentimes intriguing facts and high damages. But the allure of the presentation of the claim does not compensate for the actual burden of proof in proving the lost productivity or inefficiency claim, which will require an expert. And they really are challenging to prove.
Don’t take it from me. A recent Federal Claims Court opinion, Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, (Fed.Cl. 2022), that I also discussed in the preceding
article, exemplifies this point.
To determine lost productivity or inefficiency, the claimant’s expert tried three different methodologies.
First, the expert looked at industry standard lost productivity factors such as those promulgated by the Mechanical Contractor’s Association. However, the claimant was not a mechanical contractor and there is a bunch of subjectivity involved when using these factors. The expert decided not to use such industry standard factors correctly noting they provide value when you are looking at a potential impact prospectively, but once you incur actual damages and have real data, it is not an accurate measure.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Updated: Happenings in and around the West Coast Casualty Seminar
May 13, 2014 —
Beverley BevenFlorez-CDJ STAFFFor those who are attending the West Coast Casualty Construction Defect Seminar this week, the Construction Defect Journal has updated its list of concerts, sporting events, and museum exhibitions taking place in and around Anaheim. Whether you like to spend your personal time checking out a new band, or watching your favorite Angel slide into home, or perusing the local art museum, there is something to spark your interest.
***CONCERT VENUES***
THE HOUSE OF BLUES IN ANAHEIM
Live Band Karaoke
Wednesday, May 14th, 2014 Doors Open at 10pm / Show Begins at 11pm
Every Wednesday experience the excitement of singing your favorite song with a live band. Over 200 songs to choose from our massive collection of classics and current hits. Get down here and let your vocals roar. No Cover!
Rockin’ The Blues
Thursday, May 15th, 2014 Doors Open at 10pm / Show Begins at 11pm
Every Thursday night head down to The Voodoo Lounge and listen to the best local live blues band. This is the music that shaped American music and influences every genre we listen to today. No cover!
Alice in Cooperland with Sons of Cream and Iron Plaid
Friday, May 16th, 2014 Doors Open at 7pm / Show Begins at 8pm
Friday Night Live
Friday, May 16th, 2014 Doors Open at 10pm / Show Begins at 11pm
Every Friday night features live music in The Voodoo Lounge. One stage, weekly mind blowing performances. No cover!
Stephen "Ragga" Marley
Saturday, May 17th, 2014 Doors Open at 8pm / Show Begins at 9pm
Dance, Pop and Hip-Hop
Saturday, May 17th, 2014 Doors Open at 10pm / Show Begins at 11pm
Every Saturday night The Voodoo Lounge heats up with the sounds of DJ Matt Hill spinning across genres and getting the party started. No Cover!
For More Information on Events at THE HOUSE OF BLUES OF ANAHEIM...
THE GROVE OF ANAHEIM
Lindsey Stirling plus special guest Dia Frampton
Wednesday, May 14, 2014 Doors Open at 7pm / Show Begins at 8pm
Primal Fear
Thursday, May 15, 2014 Doors Open at 6:30pm / Show Begins at 7pm
Jillian Michaels 'Maximize Your Life' Tour
Friday, May 16, 2014 Doors Open at 6pm / Show begins at 8pm
For More Information on Events at THE GROVE OF ANAHEIM...
THE HONDA CENTER
2014 Powerhouse
Saturday, May 17, 2014 – Parking lot Festival 3pm – Show Begins 7pm
Power 106 presents Powerhouse with Performances by Nicki Minaj, TDE’s Schoolboy Q, Wiz Khalifa, Trey Songz, YG, Jennifer Lopez, Childish Gambino, Juicy J, Sage The Gemini, Isaiah Rashad, plus Special Surprise Guests and More!
For More Information and to Purchase Tickets for THE HONDA CENTER...
***SPORTING EVENTS***
ANGEL’S STADIUM - BASEBALL
The Los Angeles Angels of Anaheim v. Tampa Bay Rays
Thursday, May 15th at 7:05pm
Friday, May 16th at 7:05pm
Saturday, May 17th at 6:05pm
Sunday, May 18th at 12:35pm
For More Information and to Purchase Tickets for ANGEL'S BASEBALL...
THE HONDA CENTER – HOCKEY
Ducks v. Kings – Game 7 (If Necessary)
Friday, May 16th at TBA
For More Information and to Purchase Tickets for DUCKS' HOCKEY...
***MUSEUM EXHIBITIONS***
MUZEO
Transcending Trash: The Art of Upcycling
Apr 26 –Aug 31, 2014
Transcending Trash: The Art of Upcycling celebrates the transformation of throwaway objects into complex and colorful works of art.
African Exhibit On The Move (free)
May 7 –May 1, 2014
Photographer Dawn Harman has captured the spirit and energy of Africa through a series of limited edition images- each and every photo tells an extraordinary story.
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 5 pm
For More Information on Events at MUZEO...
BOWERS MUSEUM (Santa Ana)
Beethoven: The Late Great
Feb 8 - May 18, 2014
In recognition of the 60th anniversary of the Philharmonic Society of Orange County and its 21st and final season of Dean Corey’s leadership, the Philharmonic Society will present a multi-season celebration of the major late works of Ludwig van Beethoven, including a celebratory exhibition at the Bowers Museum.
Soulful Creatures: Animal Mummies In Ancient Egypt
Mar 22 – June 15, 2014
Soulful Creatures: Animal Mummies in Ancient Egypt is the first major exhibition to focus on one of the most fascinating aspects of ancient Egyptian culture and religion—the mummification of animals.
Chuck Jones: Doodles of a Genius
Apr 26 - August 3, 2014
This exhibition contains original drawings, most never publicly displayed, including a section of 50 so‐called "Doodles," perhaps best described as coming from one artist's very far side.
The Lure Of Chinatown: Painting California's Chinese Communities
Apr 12 - August 31, 2014
The unique cultural customs, fascinating architecture, and rich aesthetic of the Chinese communities in San Francisco and Los Angeles inspired many 19th and 20th century artists.
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
For More Information on Events at BOWERS MUSEUM...
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City and Contractor Disclaim Responsibility for Construction Error that Lead to Blast
November 13, 2013 —
CDJ STAFFThe city of Grand Junction, Colorado and their contractor, Aperion Utility Construction, LLC, have both denied any wrongdoing in the construction accident that lead to the destruction of two homes. Aperion was drilling in order to repair traffic signals. Their drill damaged a gas line. In the subsequent explosion, three people were injured and two homes destroyed. Homes for 10 blocks were subsequently evacuated.
The three men who were injured have filed a lawsuit claiming negligence on the part of the contractor and the city. The city has released a report from their insurers that concluded that the city was not responsible.
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“To Indemnify, or Not to Indemnify, that is the Question: California Court of Appeal Addresses Active Negligence in Indemnity Provisions”
April 05, 2017 —
Steven M. Cvitanovic & Omar Parra – Haight Brown & Bonesteel LLPIn California, it is well-established that the extent of a party’s obligation under an indemnity agreement is an issue of contractual interpretation, and it is therefore the intent of the parties that should control. What is the parties’ intent, then, when a subcontractor (indemnitor) agrees to indemnify the general contractor (indemnitee) “except to the extent the claims arise out of the general contractor’s active negligence or willful misconduct”? Does this mean the general contractor is barred entirely from recovering any indemnity if its active negligence contributed to the injury? Not according to the First Appellate District of the California Court of Appeal, which recently held that an actively negligent general contractor may still recover indemnity for the portion of liability attributable to the fault of others. Oltmans Construction Co. v. Bayside Interiors, Inc., No. A147313, 2017 WL 1179391, at *1 (Cal. Ct. App. Mar. 30, 2017).
In Oltmans Construction, an employee of O’Donnell Plastering, Inc. (“O’Donnell”), a sub-subcontractor of Bayside Interiors, Inc. (“Bayside”), which was a subcontractor to Oltmans Construction Company (“Oltmans”), sustained injuries when he fell through a skylight opening in the roof of a building under construction. The employee filed suit against Bayside, Oltmans, and the building’s owner, arguing Oltmans negligently cut and left unsecured the skylight opening. Oltmans subsequently filed a Cross-Complaint against Bayside and O’Donnell, contending it was entitled to indemnification under the governing agreements.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Omar Parra, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Parra may be contacted at oparra@hbblaw.com
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