Sewage Treatment Agency Sues Insurer and Contractor after Wall Failure and Sewage Leak
January 22, 2013 —
CDJ STAFFTrial preparations continue over the failure of a wall at a sewage treatment plant and the failure of the insurer to provide coverage. The Binghamton-Johnson City Joint Sewage Treatment Plant sued its insurer, American Alternative Insurance Corp., in March 2012 over insurance coverage. AAIC claimed that the wall failure, which released hundreds of thousands of gallons of sewage, was due to structural defects which preceded the policy. AAIC did pay more than $300,000 for covered losses, although officials claim that coverage should be a further $3.5 million.
Additionally, the board is suing the contractor who constructed the wall. Here, the operators of the sewage plant are seeking $20 million. The wall was built as part of a $67 million improvement project between 2004 and 2006.
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Claim for Vandalism Loss Survives Motion to Dismiss
October 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe court ruled that the insured's claim for vandalism of his house by a renter and for bad faith survived the insurer's motion to dismiss. Wehrenberg v. Metro. Prop. & Cas. Ins. Co., 2015 U.S. Dist. LEXIS 103758 (W.D. Pa. Aug. 7, 2015).
The insured's home was insured by a homeowner's policy issued by Metropolitan. The insured rented his home to Alphonso Hyman in October 2011. In lieu of rent, Hyman was to pay the mortgage company the equivalent of his rent each month.
In early 2012, Hyman stopped making the monthly rent/mortgage payments. The insured went to the home and found the locks had been changed. Looking in the windows, he saw the interior had been gutted. When the insured reached Hyman, Hyman said he was a contractor and was fixing the structural problems and would put the house back together. He also promised to make up late payments to the mortgage company. The insured did not report what he found to Metropolitan.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Updates to Residential Landlord Tenant Law
October 18, 2021 —
Lawrence S. Glosser - Ahlers, Cressman & SleightOver the past several months, there have been major updates to the residential landlord tenant laws in Washington State and Seattle. There are also some remaining moratoria or eviction restrictions in Washington and Seattle. The following is a general overview of the changes.
Eviction Moratoria:
Washington State
Governor Inslee’s state-wide eviction moratorium technically ended on June 30, 2021. However, in late June 2021, Governor Inslee announced a “bridge” proclamation between the eviction moratorium and the housing stability programs put in place by the Washington State Legislature. The bridge is effective July 1 through September 30. The goal of the bridge period was to protect tenants from evictions for non-payment of rent to allow local governments to set up distribution programs for funds. More than $650 million of federal relief dollars allocated to assist renters was predicted to be available beginning in July. This is in addition to the $500 million previously released by the Department of Commerce to local governments for rental assistance and will help more than 80,000 landlords and renters. However, insofar as many localities have not established distribution protocols, the bridge period was instituted to allow time for those programs to be set up in various parts of the state.
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Lawrence S. Glosser, Ahlers, Cressman & SleightMr. Glosser may be contacted at
larry.glosser@acslawyers.com
Limitation on Coverage for Payment of Damages Creates Ambiguity
April 03, 2013 —
Tred EyerlyUnable to discern the meaning of a provision stating that payment of damages would be made "through a trial but not any appeal", the court found an ambiguity.Parker v. Am. Family Ins. Co., 2013 U.S. Dist. LEXIS 9085 (D. Ore. Jan. 23, 2013).
The homeowners sued the general contractor for defective construction of their home. In November 2008, the homeowners reached a settlement through mediation with the general contractor. The general contractor's claims under its policies with American Family and Mid-Continent were assigned to the homeowners.
The homeowners then sued both insurers for breach of insurance contract and/or equitable contribution. American Family moved for summary judgment, claiming the homeowners did not prove their damages claim against the general contractor "through a trial but not any appeal."
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
It Pays to Review the ‘Review the Contract Documents’ Clause Before You Sign the Contract
March 11, 2024 —
Alan Winkler - ConsensusDocsIt is fairly common for a construction contract to include a provision requiring the contractor to perform some level of review of the plans and specifications and perhaps other contract documents as part of their responsibilities. Typically, this provision is found in a section of the contract on the contractor’s responsibilities, although it can be anywhere. Owners and contractors are, with reason, focused on three main issues in reviewing contracts: (1) price, costs, and payments, (2) time and scheduling, and (3) scope of the work. Eyes may glaze over the contractor’s responsibilities section. Not only does it seem to be boilerplate, but industry professionals know what a contractor is supposed to do; in a nutshell, build the project.
An old school type of contractor may regard this role as strictly following the plans and specifications, no matter what they provide. That could lead to a situation where construction comes to a complete stop because, for example, two elements are totally incompatible with each other. If that happens, the contractor would then turn to the owner and architect to ask for a corrective plan and instructions on how to proceed. That may also be accompanied by a request for more time and money while the problem is resolved. The ‘review the contract documents’ clause is designed to avoid this. It is intended to address an understanding that everyone makes mistakes, even architects and engineers whose job it is to design a buildable, functional project. The clause also addresses the understanding that a contractor is more than a rote implementer of plans and specifications because its expertise in building necessarily means the contractor has expertise in understanding the documents that define the construction and how things are put together.
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Alan Winkler, Peckar & Abramson, P.C.Mr. Winkler may be contacted at
awinkler@pecklaw.com
Preliminary Notice Is More Important Than Ever During COVID-19
June 01, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we welcome Justin Gitelman. Justin is the Content Coordinator at Levelset, where over 500,000 contractors and suppliers connect on a cloud-based platform to make payment processes stress-free. Levelset helps contractors and suppliers get payment under control, and sees a world where no one loses a night’s sleep over payment.
As the construction industry continues to adjust to the coronavirus and an uncertain future, contractors are struggling to get paid. During the COVID-19 pandemic, construction businesses across Virginia need to do everything they can to protect their payments, and get paid faster. One simple action that can help fight payment delays: sending preliminary notice on every job.
Subcontractors and suppliers should send preliminary notices out to the GC, project owner, and/or lender at the start of every single project. These tools allow contractors to make themselves visible on crowded job sites, helping contractors get paid more quickly, and, in some cases, securing their right to file a mechanics lien or bond claim.
Preliminary Notices in Construction
The purpose of a preliminary notice is to allow each member of a construction project to know who you are and what work you’ll be performing. With coronavirus in mind, contractors can use preliminary notices to remind the hiring party of their payment expectations. When you submit a preliminary notice on every project, you’ll have legal protection in your corner while also giving yourself a greater opportunity to get paid.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrissghill@constructionlawva.com
Commonwealth Court Holds That Award of Attorney's Fees and Penalties is Mandatory Under the Procurement Code Upon a Finding of Bad Faith
October 29, 2014 —
William J. Taylor and Michael Jervis – White and Willams LLPIn a decision regarding a payment claim by a highway contractor against the City of Allentown, the Commonwealth Court of Pennsylvania has held that an award of attorney's fees and penalties is mandatory under the terms of the Pennsylvania Procurement Code, 62 Pa.C.S. § 3901 et seq., upon a finding of bad faith by the non-paying government agency, even though the statute only states that a court “may” award such fees and penalties.
In A. Scott Enterprises, Inc. v. City of Allentown, Cmwlth. Ct. No. 2163 C.D. 2013, the plaintiff, A. Scott Enterprises, Inc. (Scott), won a contract with the City of Allentown (City) to construct a one mile roadway. Several weeks after commencing work, Scott learned that soil at the construction site was potentially contaminated with arsenic, and was instructed by the City to suspend its work. Because of the soil contamination, additional work would be required to complete the project and Scott submitted proposals for the additional work plus its suspension costs. However, the City never approved the additional work and the project was never completed. The City never paid Scott for costs incurred due to the suspension of the work and Scott filed suit to recover its losses. The jury found that the City had breached the contract with Scott and had acted in bad faith in violation of the Procurement Code, and awarded damages to Scott for its unreimbursed suspension costs. However, the trial court denied Scott’s request for an award of attorney's fees and penalty interest. Both Scott and the City appealed the final judgment to the Commonwealth Court, which reversed the trial court’s refusal to award attorney's fees and penalties.
Reprinted courtesy of
William J. Taylor, White and Williams LLP and
Michael Jervis, White and Williams LLP
Mr. Taylor may be contacted at taylorw@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com
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Guidance for Construction Leaders: How Is the Americans With Disabilities Act Applied During the Pandemic?
September 28, 2020 —
Molly Gwin - Construction ExecutiveWith the spread of the COVID-19 pandemic, numerous cities and states have mandated infection control practices, including social distancing, mask requirements and sanitization of work areas and tools. As a result, many construction leaders now have questions as to how government guidance related to COVID-19 interacts with the Americans with Disabilities Act (ADA). For example, can a project manager enforce a mask mandate when a construction worker presents a doctor’s excuse noting breathing difficulties? Or, what if the employer is aware that an individual presents a higher risk for severe illness because of an underlying health condition, but that employee does not request an accommodation?
Thankfully, the United States Equal Employment Opportunity Commission (EEOC) recently published guidance relating to these requests that construction leaders can reference. While our goal is to summarize that guidance and provide practical advice for the construction sector, this article does not substitute for situation specific legal counsel.
SCENARIO 1: AN EMPLOYEE REFUSES TO WEAR A MASK AND PRODUCES A DOCTOR’S NOTE CITING BREATHING DIFFICULTIES. MUST THE EMPLOYER ACCOMMODATE SUCH A REQUEST?
Potentially. Since the request to not wear a mask is considered an accommodation under the ADA, the employer can still require a doctor’s note when considering the accommodation.
Reprinted courtesy of
Molly Gwin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Gwin may be contacted at
mgwin@isaacwiles.com
