COVID-19 Response: Key Legal Considerations for Event Cancellations
March 30, 2020 —
Michael G. Platner, Solomon B. Zoberman, & Jane C. Luxton - Lewis BrisboisEvery passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. Cancellation fees can be breathtaking, and affected parties are quickly learning that there are no simple answers as to whether a disease outbreak of this scope and scale falls within force majeure (or Act of God) clauses that either do not explicitly list, or arguably may never have contemplated, circumstances of this type.
Generally, force majeure clauses excuse parties’ performance under a contract when circumstances that are beyond their control arise and prevent them from fulfilling their obligations. The party electing to enforce its rights under the force majeure clause must show that the triggering event qualifies as a force majeure event, and that the event has rendered the party’s performance impossible or impracticable.
Reprinted courtesy of Lewis Brisbois attorneys
Michael G. Platner,
Solomon B. Zoberman and
Jane C. Luxton
Mr. Platner may be contacted at Michael.Platner@lewisbrisbois.com
Mr. Zoberman may be contacted at Solomon.Zoberman@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
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Texas contractual liability exclusion
May 18, 2011 —
CDCoverage.comIn Ewing Construction Co., Inc. v. Amerisure Ins. Co., No. C-10-256 (S.D. Tex. April 28, 2011), insured Ewing was the general contractor for an athletic facility constructed for a school district. The school district sued Ewing alleging defective construction of the project. The underlying complaint included contract and negligence causes of action, and sought damages for the repair of the damages and loss of the use of the project. The complaint did not allege damage to any property other than the project itself. Ewing tendered its defense to its CGL insurer Amerisure. Amerisure denied a defense and Ewing filed suit against Amerisure. The federal district trial court entered summary judgment for Amerisure. Applying Texas law, the court held that all of the damages fell within the “contractual liability†exclusion precluding any duty to defend or indemnify.
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Reprinted courtesy of CDCoverage.com
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General Contractor’s Ability to Supplement Subcontractor Per Subcontract
July 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesAs a subcontractor, you need to appreciate that the subcontract you (more than likely) sign is going to have you bear risk associated with furnishing manpower to maintain the prime contractor’s schedule and progress. A subcontractor can factor some of this risk into the lump sum amount it agrees to in the subcontract. But, from the general/prime contractor’s perspective, it is very important that this risk is borne by the subcontractor because there is no such thing as a schedule written in stone. The baseline schedule, whether attached to the subcontract or not, will change. Activities will be re-sequenced. Activities will be added. Activities will overlap. Activity start dates and finish dates will change. It is the nature of construction. As a subcontractor, you know all of this because it is the same no matter the project. Schedules are never written in stone — they change on a regular basis.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Application of Set-Off When a Defendant Settles in Multiparty Construction Dispute
January 05, 2017 —
David Adelstein – Florida Construction Legal UpdatesThe defense of set-off is an important defense in construction disputes, particularly multiparty disputes. For more information on this defense, please check out this
article as it explains the application of set-off in civil disputes in detail.
The issue of set-off will come up in a multiparty dispute when a plaintiff settles with one or more of the defendants. The remaining defendant(s) wants the benefit of that settlement to set-off and reduce any judgment against it. An example of this scenario can be found in Escadote I Corp. v. Ocean Three Limited Partnership, 42 Fla. L. Weekly D23a (Fla. 3d DCA 2016).
In this case, an owner of a condominium unit sued the condominium association, the developer, and the general contractor for water intrusion and mold infestation. The claim against the condominium association was the only claim that entitled the owner to attorney’s fees pursuant to its lawsuit (thus, attorney’s fees were isolated to only that claim against the association). During trial, the owner settled with the association. In entering a settlement, the owner smartly allocated the settlement amount such that $500 was allocated to its principal damages and $374,500 was allocated to its attorney’s fees. The owner then obtained a jury verdict against the contractor and developer for approximately $2M, jointly and severally, and the contractor and developer wanted the entire $375,000 settlement amount with the association to be set-off from the $2M verdict. The trial court set-off the entire $375,000 from the jury verdict when entering judgment. The appellate court reversed.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dma@katzbarron.com
Failing to Pay Prevailing Wages May Have Just Cost You More Than You Thought
April 01, 2015 —
Garret Murai – California Construction Law BlogMechanics lien claims, payment bond claims, stop payment notice claims, delay claims, defect claims, abandonment claims . . .
With the variety of claims unique to construction projects it’s easy to forget that construction disputes are simply a category of business disputes in which broader business-related torts apply.
In Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., Case No. B255558 (February 20, 2015), the California Court of Appeal for the Second District held for the first time that a second-place bidder on a public works contract may sue a winning bidder – who failed to pay its workers prevailing wages – under the business tort of intentional interference with prospective economic advantage.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Ambiguity Kills in Construction Contracting
May 27, 2019 —
Christopher G. Hill - Construction Law MusingsWell, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . .
Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al
In this case, English, a general contractor, entered into a contract for Quality Assurance (QA) functions with RK&K, the defendant, on a contract English entered into with the Virginia Department of Transportation (VDOT). Needless to say, because this would not be a post at Musings otherwise, there were issues with the QA performed by RK&K leading to additional costs for English to correct certain work that did not comply with the contract documents between VDOT and English. English sued for breach of contract based upon a term sheet, signed by the parties, from RK&K that required RK&K to indemnify English for claims by VDOT that related to RK&K’s work (the English Term Sheet). RK&K moved to dismiss the complaint based upon a different term sheet, also signed by the parties, which stated that RK&K could not be held responsible for English’s failure to perform pursuant to the contract documents (the RK&K Term Sheet).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Courts Are Ordering Remote Depositions as the COVID-19 Pandemic Continues
August 10, 2020 —
Victor J. Zarrilli, Robert G. Devine & Douglas M. Weck - White and WilliamsThe COVID-19 pandemic has generally put a stop to in-person depositions nationwide. Many litigants and their attorneys have also resisted attempts to proceed with remote video depositions, some holding out for the pandemic to subside and for the return of in-person business as usual while others are resistant to using new or unfamiliar virtual video technology. However, with COVID-19 cases still increasing nationwide, courts are beginning to mandate that depositions proceed remotely regardless of these apprehensions. It looks like remote video depositions may become part of a new set of best practices and perhaps mandatory in some circumstances for the foreseeable future.
The Supreme Court of New Jersey, for example, has ordered that “[t]o the extent practicable . . . depositions should continue to be conducted remotely using necessary and available video technology.” The court has not explicitly mandated remote depositions, but has certainly encouraged trial courts to do so, indicating in orders litigants are “strongly encouraged” to depose witnesses remotely. Other jurisdictions, such as Philadelphia’s First Judicial District, have given trial court’s similar authority and flexibility.
Recently, a trial court in Middlesex County, New Jersey granted a motion to compel a defense deposition of the plaintiff to proceed remotely, if not in person, over the objection of plaintiff’s counsel in a slip-and-fall case. This is one of the first such rulings in this area. The plaintiff’s counsel objected to the remote deposition on the grounds that his client was elderly with a heavy accent, had no technology knowledge, and had no internet access. That would seem to be a pretty good argument that a remote deposition would be impracticable. However, the defendant bolstered their case with an offer to cover the cost of renting and delivering a remote deposition technology package to the plaintiff, complete with a tablet, phone, speaker, internet hotspot and remote training beforehand. Although the trial court acknowledged the plaintiff’s “significant hardship,” the court ordered that the deposition proceed remotely if not in person.
Reprinted courtesy of White and Williams attorneys
Robert Devine,
Douglas Weck and
Victor Zarrilli
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com
Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com
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Insured's Motion for Reconsideration on Protecting the Integrity of Referral Sources under Florida Statute s. 542.335
September 28, 2017 —
David Adelstein - Florida Construction Legal UpdatesReferral sources are generally important for all businesses. Due to their importance, certain businesses require employees to execute non-solicitation or even non-compete agreements to protect the integrity of their referral sources. Now, whether referral sources for a particular business constitutes a legitimate business interest (very important words) is a question where the context must be examined. Nonetheless, in a case that is certainly important for businesses, the Florida Supreme Court held that referral sources can serve as a legitimate business interest. While this case dealt with home health care companies, the rationale would be the same no matter the business, provided that referral sources are contextually a legitimate business interest for that business.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
