Be Careful with Continuous Breach and Statute of Limitations
January 21, 2019 —
Christopher G. Hill - Construction Law MusingsIf you are a construction attorney like me (or anyone that takes cases to court), you deal with statutes of limitation on a daily basis. These statutes seem pretty simple. A party has “X” amount of time in which to file its lawsuit after accural of the cause of action. In a breach of contract suit, the accrual is the date of breach. Easy, right? Wrong, at least in some circumstances.
Take for example, the case of Fluor Fed. Sols., LLC v. PAE Applied Techs., LLC out of the 4th Circuit Court of Appeals. In this unpublished opinion the Court looked at “continuous breach” versus “series of separate breaches.” The basic facts are that in 2000 Flour entered into a contract with PAE whereby PAE requested and claims to have received consent from Flour to a 2.3% administrative cost cap on Flour’s work on an Air Force contract. Flour claimed that it did not agree to this cap. In 2002, Flour begain billing PAE for its costs plus the 2.3% administrative markup and billed in this fashion for the first full year. However, in subsequent years and for the next 11 years, Flour billed PAE at a higher markup rate than the 2.3%. PAE disputed the increased markup and paid Flour at the 2.3% rate. Flour periodically protested but made no move to court until it filed suit in March of 2016. After a bench trial, the district court found that Flour had agreed to the cap and found for PAE.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Class Action Certification by Association for “Matters of Common Interest”
August 24, 2020 —
David Adelstein - Florida Construction Legal UpdatesAssociations have authority to pursue as a class, on behalf of all of their respective members, lawsuits “concerning members of common interest to the members.” Fla. R. Civ. P. 1.221. This includes, but is not limited to, the common property or the areas in which the association is responsible. But, what about matters or elements for which the association is not responsible or does not own? For example, issues or damages relative to a specific unit or owner that are prevalent throughout?
The Third District Court of Appeal addressed this question in Allied Tube and Conduit Corp. v. Latitude on the River Condominium Association, Inc., 45 Fla. L. Weekly D1518a (Fla. 3d DCA 2020) when in affirmed a class certification by a condominium association relating to the removal and replacement of the condominium building’s defective fire sprinkler system. In affirming the class certification by the condominium association, the Third District maintained:
Rule 1.221 expressly authorizes condominium associations to “institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members.” “[A]s to controversies affecting the matters of common interest . . ., the condominium association, without more, should be construed to represent the class composed of its members as a matter of law.” “[T]he common interest provision of the rule has been interpreted to permit a class action by the association for a construction defect located physically within a unit, rather than in the common elements, if the defect is prevalent throughout the building.” We, therefore, cannot say the trial court abused its discretion in finding that damages resulting from the replacement of the fire-sprinkler system throughout the building were a matter of common interest for purposes of certification at this stage of the litigation.
Allied Tube and Conduit Corp, supra (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Bailout for an Improperly Drafted Indemnification Provision
February 11, 2019 —
David Adelstein - Florida Construction Legal UpdatesA recent opinion came out that held that even though an indemnification provision in a subcontract was unenforceable per Florida Statute s. 725.06, the unenforceable portion is merely severed out of the indemnification clause leaving the rest of the clause intact. In essence, an otherwise invalid indemnification clause is bailed out by this ruling (which does not even discuss whether this subcontract had a severability provision that states that if any portion of any provision in the subcontract is invalid, such invalid portion shall be severed and the remaining portion of the provision shall remain in full force and effect).
This opinion arose from a construction defect case, CB Contractxors, LLC v. Allens Steel Products, Inc.,43 Fla.L.Weekly D2773a (Fla. 5thDCA 2018), where the general contractor, sued by an association, flowed down damages to subcontractors based on the contractual indemnification provision in the subcontracts. Subcontractors moved to dismiss the contractual indemnification claim because it was not compliant with Florida Statute s. 725.06. The indemnification provision required the subcontractors to indemnify the general contractor even for the general contractors own partial negligence, but failed to specify a monetary limitation on the extent of the indemnification as required by Florida Statute s. 725.06. (The indemnification clause in the subcontract was the standard intermediate form of indemnification that required the subcontractor to indemnify the general contractor for claims regardless of whether the claims were caused in part by the general contractor.)
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Colorado Requires Builders to Accommodate High-Efficiency Devices in New Homes
December 14, 2020 —
David M. McLain – Colorado Construction LitigationStarting in 2009, the Colorado Legislature began adding requirements that builders offer certain options to accommodate high-efficiency devices. These requirements started with solar prewire options in 2009, then water-smart home options in 2010. In 2020, the Legislature added requirements for electric vehicle charging and heating systems. These sections apply to unoccupied homes serving as sales inventory or a model home or manufactured homes, as defined by Colorado law. While the Legislature has only required builders to include options to accommodate these devices, it may be just a matter of time until builders must install the prescribed devices themselves.
In 2009, the Legislature passed C.R.S. 38-35.7-106, which was amended this year by HB 20-1155. As it now reads, Colorado law requires every builder of single-family detached residences to offer to have the home’s electrical or plumbing system, or both, include:
- A residential photovoltaic solar generation system or a residential thermal system, or both;
- Upgrades of wiring or plumbing, or both, planned by the builder to accommodate future installation of such systems; and
- A chase or conduit, or both, constructed to allow ease of future installation of the necessary wiring or plumbing for such systems.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Leaky Wells Spur Call for Stricter Rules on Gas Drilling
September 17, 2014 —
Jim Snyder, Jim Polson and Bradley Olson – BloombergA study that found natural gas drilling polluted drinking water is fueling calls for stricter standards for well construction that could increase costs for energy companies.
The analysis by academic researchers backed the oil and gas industry in one respect: the authors said “fracking” wasn’t to blame for harmful methane seeping into groundwater studied in Texas and Pennsylvania. Some environmentalists contend that by blasting underground rock with a mix of water, chemicals and sand, producers can force the gas into drinking water near the surface.
The bigger concern, according to the analysis published yesterday by the peer-reviewed Proceedings of the National Academy of Sciences, are leaks in the steel-and-cement casings surrounding the well bore. They let gas escape before it gets to the surface, making water undrinkable and in some cases explosive.
Reprinted courtesy of Bloomberg journalists
Jim Snyder,
Jim Polson and
Bradley Olson
Mr. Snyder may be contacted at jsnyder24@bloomberg.net; Mr. Polson may be contacted at jpolson@bloomberg.net; Mr. Olson may be contacted at bradleyolson@bloomberg.net
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PulteGroup Fires Exec Accused of Defamation By Founder’s Heir
January 17, 2023 —
Patrick Clark - BloombergPulteGroup Inc. fired a senior executive for violating the company’s code of conduct two days after the grandson of the homebuilder’s founder sued the executive for alleged defamation.
The company, which is the third-largest US homebuilder, said in a statement Friday that it had terminated Brandon Jones after the results of an independent investigation. Jones had been slated to assume the role of chief operating officer in January.
Bill Pulte, 34, filed a lawsuit on Wednesday in Palm Beach County, Florida, alleging that Jones had used anonymous Twitter accounts to smear members of the Pulte family. The lawsuit accused the executive of impersonating a business journalist and making a false claim that Pulte manipulated his grandfather.
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Patrick Clark, Bloomberg
A Murder in Honduras Reveals the Dark Side of Clean Energy
October 12, 2020 —
Monte Reel - BloombergBerta Cáceres campaigned to stop a renewable energy project, and the long fight turned her into one of Central America’s most prominent environmentalists. She won a prestigious international prize known as the “Green Nobel” for protecting a river, using some of the award money to purchase a modest bungalow in La Esperanza, her hometown in central Honduras.
Her activism is also what brought three gunmen to her back door.
The men broke into her kitchen around 11:30 p.m. on March 2, 2016. Cáceres heard a noise and called out from her bedroom: “Who’s out there?” Within seconds, a gunman entered her room and shot her dead.
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Monte Reel, Bloomberg
The EPA and the Corps of Engineers Propose Another Revised Definition of “Waters of the United States”
February 14, 2022 —
Anthony B. Cavender - Gravel2GavelOn December 7, 2021, the most recent proposed revision to the Clean Water Act’s term, “Waters of the United States” was published in the Federal Register. (See 86 FR 69372.) Comments on this proposal must be submitted by February 7, 2022. This term controls the scope of federal regulatory powers in such programs as the development of water quality standards, impaired waters, total maximum daily loads, oil spill prevention, preparedness and response plans, state and tribal water quality certification programs, the National Pollutant Discharge Elimination System (NPDES) permit program, and the Corps of Engineers’ dredge and fill program. The Environmental Protection Agency (EPA) and the Corps of Engineers have jointly drafted this comprehensive proposed rule, which also responds to President Biden’s Executive Order 13990, issued in January 2021.
Background
The agencies noted that they have repeatedly defined and re-defined “Waters of the United States” since the Clean Water Act was enacted in 1972. This level of sustained commitment is unique to this program, perhaps reflecting the importance of the programs that are implemented through the Clean Water Act. The most recent rulemaking efforts took place in 2015, 2017, 2020 and now 2022, and the Supreme Court has issued several landmark rulings in response to these efforts. See City of Milwaukee v. Illinois, 451 US 304 (1981), United States v. Riverside Bayview, 474 US 121 (1985), SWANCC v. United States, 531 US 159 (2001), Rapanos v. United States, 547 US 715 (2006), National Association of Manufacturers v. Department of Defense, 138 S Ct 617 (2018), and County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S, Ct 1462 (2020). The rules promulgated in 2015 and entitled, “Clean Water Act: Definition of Waters of the United States” expanded the scope of federal regulatory jurisdiction, but the 2020 rule, entitled the “Navigable Waters Protection Rule,” contracted that scope. Now, the agencies have proposed the “Revised Definition of ‘Waters of the United States,’” which will rescind the 2020 rule and inevitably restore something of the scope of the 2015 rule by returning to the familiar “1986 rules” that were issued by the Corps of Engineers in 1986 and EPA in 1988, as modified by the recent Supreme Court decisions mentioned above. Both the 2015 and 2020 rules were mired in litigation and the Corps and EPA view the resort to the 1986 rules as a fresh start for the Clean Water Act. In short, the topsy-turvy history of regulation under the Clean Water Act continues.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
