Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts
November 13, 2023 —
Hal Baker - Colorado Construction Litigation BlogIn a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential.
The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided:
Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature.
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Hal Baker, Higgins, Hopkins, McLain & Roswell, LLCMr. Baker may be contacted at
baker@hhmrlaw.com
Three Key Takeaways from Recent Hotel Website ADA Litigation
April 26, 2021 —
Shane Singh & Grace Mehta - Lewis BrisboisDespite the COVID-19 pandemic and its chill on the hospitality industry, ADA-related digital lawsuits increased by approximately 23% in 2020. Many of these lawsuits are filed against hotels. The complaints allege that a hotel’s online reservation system failed to provide enough detail for individuals with disabilities to decide if the hotel meets their accessibility needs.
These plaintiffs will often claim that it is insufficient to describe an aspect of a hotel or room as “accessible” because the term is an opinion or conclusion. Plaintiffs argue that a hotel’s reservation system must report specific information, such as the dimensions of space under accessible desks and sinks, the slopes of surfaces, doorway clearance, and numerous other technical requirements under the ADA.
Many hotels are fighting back, arguing that the detail provided is sufficient and in compliance with the ADA. So far this year, in February 2021, two judges in the U.S. District Court for the Central District of California, Judge Percy Anderson and Judge Cormac Carney, agreed with the defendants, dismissing three cases with prejudice.
Reprinted courtesy of
Shane Singh, Lewis Brisbois and
Grace Mehta, Lewis Brisbois
Mr. Singh may be contacted at Shane.Singh@lewisbrisbois.com
Ms. Mehta may be contacted at Grace.Mehta@lewisbrisbois.com
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Stormy Skies Ahead? Important News Regarding a Hard Construction Insurance Market
August 13, 2019 —
Jason M. Adams - Gibbs GidenWord out of the construction insurance brokerage community is that the construction insurance industry has entered a hard market, seemingly overnight. Property (i.e. builder’s risk), liability and wrap-up markets are all reacting unfavorably, resulting in higher premiums and decreased availability of coverage options.
The prospect of a hard market has been looming for some time given massive weather driven property losses and historically low rates (among other factors). It appears the time is upon us.
Key takeaways for construction professionals are:
- Expect insurance premiums to go up, potentially significantly, at renewal time and/or when seeking a new project specific program (e.g., an OCIP, CCIP, etc.).
- Expect that the available coverage will get worse. Carriers may be unable to offer once standard coverage enhancements and/or may add new exclusions.
- If quotes have been offered consider locking them in now, before the underwriters are forced to increase the rates/restrict coverage, or pull the quotes entirely.
- With respect to wrap-ups and other project specific programs, consider requesting extensions now if the project is expected to go beyond the current policy term.
- As always, the risk management team (lawyer, broker, risk manager) should work together to carefully review contracts and coverage. This will become even more important if the carriers start to introduce new exclusions as a result of the hard market.
Hard markets come and go. The tough times are when true construction insurance professionals separate themselves from the pack and become the key to weathering the storm.
Jason M. Adams, Esq. is Senior Counsel at Gibbs Giden representing construction professionals (owners/developers, contractors, architects, etc.) in the areas of Construction Law, Insurance Law and Risk Management, Common Interest Community Law (HOA) and Business/Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms. Mr. Adams can be reached at jadams@gibbsgiden.com. Read the court decisionRead the full story...Reprinted courtesy of
Contractor Sued for Contract Fraud by Government
December 11, 2013 —
CDJ STAFFA Canton, Ohio construction company, TAB Construction, has been sued by the federal government over claims that the company lied about its location in order to receive contracts from the U.S. government. According to the suit, TAB received about $13 million for contracts with the U.S. Army Corps of Engineers. The firm had gained the contracts through a Small Business Administration program that allowed firms in certain areas to compete for contracts, however, the firm was not located in the appropriate area.
When the SBA found that TAB was not doing business out of an address that qualified for the SBA’s HUBZone program, the company claimed to be working from another address that qualified. Upon investigation, the SBA found this also was not true.
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Los Angeles Delays ‘Mansion Tax’ Spending Amid Legal Fight
April 25, 2023 —
Laura Curtis - BloombergLos Angeles plans to hold off spending most of the money collected from a voter-approved “mansion tax” until legal challenges against the initiative are resolved.
Mayor Karen Bass revealed in her 2023-24 budget plans that the city intends to allocate just $150 million of the funds raised by Proposition ULA, a ballot initiative that took effect this month to fund the construction of more affordable housing.
The decision will prevent the city from taking a loss if a lawsuit succeeds in reversing the tax, according to budget documents released this week. The city anticipates it would qualify for $150 million in federal reimbursements to make up the amount.
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Laura Curtis, Bloomberg
Techniques for Resolving Construction Disputes
September 16, 2019 —
Jason Lambert - Construction ExecutiveWith most construction projects involving dozens, if not hundreds, of companies and individuals, it is no surprise that conflicts arise that are not always able to be resolved on the jobsite. But these conflicts need not always reach the court room or cost thousands (or much more) to resolve. With some planning, contractors can build faster and less expensive dispute resolution options into their project so they can spend more time keeping the project moving and less time arguing over who is right.
Even for modest-sized projects, a multi-tiered approached to dispute resolution can be helpful. As a first level of dispute resolution, consider requiring the relevant parties to attend informal or formal mediation. The benefits of even an informal mediation is that it can get stalemated parties to the table to talk again. Formal mediation adds the benefit of a neutral third-party who can help get talks moving or help antagonistic parties communicate.
Further, mediation allows each side an opportunity to hear what the other side is looking for to resolve the dispute. Not only is this valuable in reaching a compromise, but it also gives each side an idea of what the other will bring to the table in any subsequent litigation. Finally, there are many ways to implement these procedures. General contractors can require pre-suit mediation with their subcontractors to resolve one-on-one disputes but should also consider requiring subcontractors to use pre-suit mediation to resolve disputes between subcontractors or between subcontractors and sub-subcontractors or material suppliers if the dispute threatens the progress at the project.
Reprinted courtesy of
Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Liability Coverage for Claims of Publishing Secret Data Does Not Require Access by Others
April 20, 2016 —
Sean Mahoney and Laura Schmidt – White and Williams LLPOn April 11, 2016, the United States Court of Appeals for the Fourth Circuit concluded that general liability insurance covered claims alleging that an insured was negligent in securing private medical records, even where there was no evidence that any third parties had actually viewed the underlying plaintiffs’ medical records. This “unpublished” decision was issued in Travelers Indemnity Company of America v. Portal Healthcare Solutions, LLC less than three weeks after the court heard oral argument. Portal Healthcare accordingly stands for the proposition that “publication” within the meaning of the standard commercial general liability coverage for “personal and advertising injury” only requires that claims against an insured allege that confidential information was made available to the public, without allegations that any third party actually accessed it, to trigger the insurer’s duty to defend.
Reprinted courtesy of
Sean Mahoney, White & Williams LLP and
Laura Schmidt, White & Williams LLP
Mr. Mahoney may be contacted at mahoneys@whiteandwilliams.com
Ms. Schmidt may be contacted at schmidtl@whiteandwilliams.com
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Suing a Local Government in Land Use Cases – Part 1 – Substantive Due Process
February 16, 2017 —
Wally Zimolong – Supplemental ConditionsBecause of my personal political persuasions (pro-freedom) and success in litigating cases against the government and other media about those cases businesses frequently approach me about bringing claims against local governments and agencies for interfering with their Constitutional rights. Actions by local government agencies that could give rise to a Constitutional violation include: treating a developer’s project differently than a similar project, revoking a previously issued zoning or building permit, disqualifying a contractor from bidding on a government contract, retaliating against a business owner for speaking out against the local agency or one of its members, or unnecessarily delaying the issuance of a permit. The Constitutional rights most typically implicated in these cases are those guaranteed by the 5th and 14th Amendments to the United States Constitution. However, the 1st Amendment is also frequently implicated.
Suing a local government agency for violating your Constitutional rights is not easy. However, the federal statute under which the cases are brought, 42 U.S.C. Section 1983, provides for the award of a successful plaintiff’s attorneys fees. This is true even if the Judge or jury awards a mere $1 is damages. Moreover, sometimes there can be a strategic value in the litigation.
This is the first in a series of blog posts exploring claims available to businesses harassed by local government agencies and officials and the challenges inherent in successfully bringing those claims. We will start with a claim for a substantive due process violation.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
