Supreme Court of Idaho Rules That Substantial Compliance With the Notice and Opportunity to Repair Act Suffices to Bring Suit
July 31, 2018 —
Lian Skaf - The Subrogation StrategistIn Davison v. Debest Plumbing, Inc., 416 P.3d 943 (Ida. 2018), the Supreme Court of Idaho addressed the issue of whether plaintiffs who provided actual notice of a defective condition, but not written notice as stated in the Notice and Opportunity to Repair Act (NORA), Idaho Code §§ 6-2501 to 6-2504, et. seq., substantially complied with the act and if the plaintiffs’ notice was sufficient to bring suit. Section 6-2503 of the NORA states that, “[p]rior to commencing an action against a construction professional for a construction defect, the claimant shall serve written notice of claim on the construction professional. The notice of claim shall state that the claimant asserts a construction defect claim against the construction professional and shall describe the claim in reasonable detail sufficient to determine the general nature of the defect.” Any action not complying with this requirement should be dismissed without prejudice. The court held that the defendant’s actual notice of the defect was sufficient to satisfy the objectives of the NORA and, thus, the plaintiffs’ action complied with the NORA.
In Davison, Scott and Anne Davison hired general contractor Gould Custom Builders (Gould) to remodel a vacation home in McCall, Idaho. Gould subcontracted out the plumbing work to Debest Plumbing (Debest). This work included installing a bathtub. When the Davisons arrived at their home for the first time on July 25, 2013, they noticed a leak from the subject bathtub. The Davisons contacted Gould and, the next morning, Gil Gould arrived with a Debest employee to inspect the home. In addition to inspecting the home, the Debest employee repaired the leak and helped Gould remove some water-damaged material.
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Lian Skaf, White and Williams, LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
A Recap of the Supreme Court’s 2019 Summer Slate
September 16, 2019 —
Anthony B. Cavender - Gravel2GavelAs usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:
An Offshore Dispute, Resolve – Parker Drilling Management v. Newton
On June 10, 2019, the Court held, in a unanimous ruling, that, under federal law, California wage and hour laws do not apply to offshore operations conducted on the Outer Continental Shelf (OCS). Newton, the plaintiff, worked on drilling platforms off the coast of California, and alleged that he was not paid for his “standby time” which is contrary to California law if not federal law. He filed a class action in state court, which was removed to federal court, where it was dismissed on the basis of a 1969 decision of the U.S. Court of Appeals for the Fifth Circuit, which held that state law applies on the OCS only to the extent that it is necessary to use state law to fill a significant gap or void in federal law, and this is not the case here. On appeal to the Ninth Circuit, that court disagreed with the Fifth Circuit, and ruled that state law is applicable on the OCS whenever it applies to the matter at hand. The Supreme Court, in an opinion written by Justice Thomas, conceded that “this is a close question of statutory interpretation,” but in the end the Court agreed with the argument that if there was not a gap to fill, that ended the dispute over which law applies on the Outer continental Shelf. This ruling, recognizing the preeminent role that federal law plays on the OCS, may affect the resolution of other offshore disputes affecting other federal statutes.
Preemption Prevention – Virginia Uranium, Inc. v. Warren. et al.
On June 17, 2019 the Court decided important cases involving federal preemption and First Amendment issues. In a 6-to-3 decision, the Court held that the Atomic Energy Act does not preempt a Virginia law that “flatly prohibits uranium mining in Virginia”—or more precisely—mining on non-federal land in Virginia. Virginia Uranium planned to mine raw uranium from a site near Coles, Virginia, but acknowledging that Virginia law forbade such an operation, challenged the state law on federal preemption grounds, arguing that the Atomic Energy Act, as implemented by the Nuclear Regulatory Commission, preempts the ability of the state to regulate this activity. However, the majority, in an opinion written by Justice Gorsuch, notes that the “best reading of the AEA does not require us to hold the state law before us preempted,” and that the1983 precedent that Virginia Uranium cites, Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, can easily be distinguished. Justice Gorsuch rejected arguments that the intent of the Virginia legislators in passing the state law should be consulted, that the Court’s ruling should normally be governed by the exact text of the statute at hand. However, both the concurring and dissenting opinions suggest that the what the legislators intended to do is important in a preemption context.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Washington Court Denies Subcontractor’s Claim Based on Contractual Change and Notice Provisions
January 29, 2024 —
Wendy Rosenstein - Ahlers Cressman & Sleight PLLCThe recent unpublished case, Cascade Civil Construction, LLC v. Jackson Dean Construction, Inc., et al.,[1] provides a legal justification for contractors to require a directive or change order in advance of performing changed work—thereby preventing the party who requested the changed work from later arguing that notice provisions were not complied with.
In the case, Jackson Dean, the prime contractor, hired Cascade to perform excavation work on a project to build a new Costco Corporate headquarters. Due to the Covid-19 pandemic and other issues, Jackson Dean directed resequencing, which required Cascade to perform excavation concurrent to dewatering. Jackson Dean also required deeper-than-planned excavation under one of the buildings.
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Wendy Rosenstein, Ahlers Cressman & Sleight PLLCMs. Rosenstein may be contacted at
wendy.rosenstein@acslawyers.com
Encinitas Office Obtains Complete Defense Verdict Including Attorney Fees and Costs After Ten Day Construction Arbitration
May 23, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPartner Vik Nagpal and Associate Attorney Tim McNulty of the Encinitas office recently obtained a substantial victory on behalf of BWB&O’s client after a 10-day binding construction arbitration before a three-arbitrator panel of the American Arbitration Association.
BWB&O’s client was sued by the Owner of a commercial office building related to a multimillion-dollar tenant improvement project in San Diego. The Owner asserted construction defect damages, delay damages, architectural negligence, fraudulent billing practices and consequential damages of $3.6 million dollars. BWB&O’s client claimed breach of contract damages against the owner for failure to pay invoices.
The Owner who had substantial financial resources and a personal spite against the general contractor, unreasonably pursued the case with an extensive team of lawyers and experts. At an earlier full-day mediation, the owner rejected a reasonable settlement offer which included a settlement payment to the Owner and the client’s agreement to dismiss their affirmative claim for damages.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Traub Lieberman Attorneys Recognized in the 2024 Edition of The Best Lawyers in America®
September 06, 2023 —
Traub LiebermanRelated Attorneys:
Lisa L. Shrewsberry,
Brian C. Bassett,
Rina Clemens,
Lauren S. Curtis,
Scot E. Samis,
Anthony Hatzilabrou,
Adam P. Joffe,
Heather Jones,
Ashley Kellgren,
Jessica N. Kull,
Ryan S. Parker,
Nicole E. Shapiro
Traub Lieberman is pleased to announce that five Partners have been selected by their peers for inclusion in the 2024 edition of The Best Lawyers in America®. In addition, seven attorneys have been included in the 2024 Best Lawyers®: Ones to Watch list. These recognitions include attorneys from the firm’s Hawthorne, NY; Chicago, IL; Palm Beach Gardens, FL; and St. Petersburg, FL offices.
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Traub Lieberman
The United States Court of Appeals, Fourth Circuit, Finds Wrap-Up Exclusion Does Not Bar Coverage of Additional Insureds
February 18, 2020 —
Callie E. Waers - Florida Construction Law NewsThe United States Court of Appeals, Fourth Circuit, recently took a close look at the application of a “controlled insurance program exclusion” (wrap-up exclusion) to additional insureds on a commercial general liability policy. In Cont’l Cas. Co. v. Amerisure Ins. Co., 886 F.3d 366 (4th Cir. 2018), the Fourth Circuit examined the interplay of an enrolled party’s additional insured status on an unenrolled party’s commercial general liability (“CGL”) policy with a wrap-up exclusion. The court applied North Carolina law and found that pursuant to the policy’s own language, the exclusion only applied to the original named insured, not the additional insureds.
The case arose out of an injury incurred by an employee of a second-tier subcontractor during the construction of a hospital. On this particular project, the owner maintained a “rolling owner controlled insurance program” (wrap-up insurance program) in which all tiers of contractors were required to enroll, but enrollment was not automatic. The general contractor was enrolled in the owner’s wrap-up policy, but neither the steel manufacturer subcontractor nor its sub-subcontractor, the steel installation company, were enrolled. The underlying plaintiff was injured while he was an employee of the steel installation company, but he did not name his employer in his personal injury lawsuit.
The Cont’l Cas. Co. case was instituted by Continental Casualty Company (“Continental”) after it defended and settled the underlying plaintiff’s claims against its insured and additional insured, the steel manufacturer and general contractor, respectively. Continental sought to be reimbursed for the $1.7 million settlement and attorneys’ fees and costs incurred for the defense and indemnity of the underlying lawsuit.
Continental alleged that Amerisure Insurance Company (“Amerisure”) breached its duty to defend and Amerisure’s policy provided the primary coverage for both the general contractor and steel manufacturer, who were additional insureds on the Amerisure policy. Amerisure denied a duty to defend the additional insureds based on the presence of the wrap-up exclusion.
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Ryan M. Charlson, Cole, Scott & Kissane, P.A.Mr. Charlson may be contacted at
Ryan.Charlson@csklegal.com
New Jersey Rules that Forensic Lab Analysts Can’t be Forced to Testify
August 06, 2014 —
Beverley BevenFlorez-CDJ STAFFThe New Jersey Law Journal reported that the New Jersey Supreme Court has rejected a rule that would have required “laboratory analysts who prepare forensic reports in criminal cases be available for cross-examination at trial.”
The court stated that “requiring every analyst who was involved in the testing to be available for questioning by the defense was not required by the U.S. Constitution's Sixth Amendment Confrontation Clause and that doing so would create ‘practical drawbacks that range from moderate to severe.’”
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Real Estate & Construction News Roundup (12/4/24) – Highest Rate of Office Conversions, Lending Caps for Fannie Mae and Freddie Mac and Affordability Challenges for Homebuyers
December 23, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, infrastructure-related ballot initiatives, U.S. Green Building Council’s success stories, support for sustainable building, and more!
- 2024 is expected to see the highest rate of office conversions since CBRE began tracking them in 2016. (Nish Amarnath, SmartCities Dive)
- The Federal Housing Finance Agency has established lending caps of $73 billion each for Fannie Mae and Freddie Mac, allowing them to purchase a total of up to $146 billion in multifamily loans in 2025. (Leslie Shaver, Multifamily Dive)
- A number of infrastructure-related initiatives with the potential to impact facilities managers were on the ballot during the 2024 U.S. presidential election. (Joe Burns, Construction Dive)
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Pillsbury's Construction & Real Estate Law Team
