Seattle Washington Building Expert Directory

Construction Litigation Roundup: “Who Needs Them”

August 28, 2023 — Daniel Lund III - Lexology
Who needs them? So argued a surety pursuing recovery under its general agreement of indemnity when the indemnitors urged a Louisiana federal court to dismiss the surety’s complaint for failure to join various allegedly required parties as defendants in the litigation. As part of its court action, the surety moved for preliminary injunction to enforce its collateral security rights. In response thereto, the indemnitors informed the court that if the injunction were to be granted, the indemnitors would “be forced to sell assets that are encumbered by security interests senior to those held by” the surety. In connection therewith, the indemnitors demanded that the other creditors be joined in the action or the lawsuit dismissed. The indemnitors also urged that the public project owner be joined as a party because the surety was seeking proceeds from the project that were still in the possession of the project owner. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Virginia Decision Emphasizes Importance of Naming All Necessary Parties

June 17, 2015 — Beverley BevenFlorez-CDJ STAFF
Nate Budde on the Construction Payment Blog, discussed the potential of mechanics liens, and the pitfalls that occur when not all necessary parties are named. Budde analyzed the case Johnson Controls Inc. v. Norair Eng’g Corp. that involved a “claimant’s failure to name all the necessary parties in his claim against a bond,” resulting “in the claimant losing his claim against the bond, and with it, an opportunity to get paid.” Budde concluded, “Unfortunately, as was the case here, when the bond claim is not handled correctly procedurally, a party can be left with no recourse for payment. It’s important to understand which of the parties involved should be named in both mechanics lien claims and bond claims.” Read the court decision
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The Best Lawyers in America© Peer Review Names Eight Newmeyer & Dillion Partners in Multiple Categories and Two Partners as Orange County’s Lawyers of the Year in Construction and Insurance Law

August 26, 2015 — Press Release
Newmeyer & Dillion is pleased to announce that a number of its partners have again been recognized by TheBest Lawyers in America© peer review as some of California’s Best Lawyers in multiple categories. Our partners were recognized in the following practice areas in 2016 for Newport Beach, CA: Michael S. Cucchissi / Real Estate Law Jeffrey M. Dennis / Insurance Law Gregory L. Dillion / Commercial Litigation, Construction Law, Insurance Law, Litigation - Construction, and Litigation - Real Estate Joseph A. Ferrentino / Litigation – Construction and Litigation - Real Estate Thomas F. Newmeyer / Commercial Litigation, Construction Law, and Litigation - Real Estate John A. O'Hara / Litigation - Construction Bonnie T. Roadarmel / Insurance Law Carol Sherman Zaist/ Commercial Litigation Beyond the above recognition, Greg Dillion and Tom Newmeyer were selected respectively as Orange County’s “Lawyers of the Year 2016” in Insurance Law and Construction Law. Greg Dillion and Joe Ferrentino previously have been honored as Orange County “Lawyers of the Year 2015” in Real Estate Litigation as well. “We take pride in hiring great attorneys who will deliver the highest quality service and results for our clients. This recognition confirms that we are doing just that. It is a great honor and well deserved recognition for our partners to be selected by their peers as the Best Lawyers in their fields,” said Managing Partner, Jeff Dennis. Because of the rigorous and transparent methodology used by Best Lawyers, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a prestigious honor. Inclusion in the Best Lawyers in America® 2016 is based on a rigorous national survey involving over 6.7 million detailed evaluations by other lawyers. For additional information, visit www.bestlawyers.com. About Newmeyer & Dillion LLP For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With more than 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com. Read the court decision
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To Sea or Not to Sea: Fifth Circuit Applies Maritime Law to Offshore Service Contract, Spares Indemnity Provision from Louisiana Oilfield Indemnity Act

March 29, 2017 — Richard W. Brown & Afua Akoto – Saxe Doernberger & Vita, P.C.
Faced with the issue of whether maritime or state law should be applied to determine the validity of an indemnity clause in a Master Services Contract (MSC), the Fifth Circuit affirmed that where there is no historical treatment of the contract in question (1), it would consider six factors established in Davis (2). In Doiron, the Apache Corporation and STS (3) entered a broad-form blanket MSC, under which STS agreed to perform flow-back services, a process designed to dislodge solid objects from inside a well, on Apache’s well located off shore of Louisiana. The MSC also contained an indemnification provision, which required STS to defend and indemnify Apache and its company groups against all claims of property injury or bodily injury. During the flow-back operation, Larry Doiron Inc. (LDI), one of the Apache Company groups, supplied a crane barge for use by STS employees. Subsequently, the crane knocked over an STS employee, causing him to suffer severe injuries. LDI then made a formal demand to STS for defense and indemnification. STS rejected the demand and argued that the Louisiana Oilfield Indemnity Act applied to the MSC instead of maritime law. Pursuant to the Act, indemnity clauses in agreements pertaining to wells for oil, gas or water are void as against public policy. But, under maritime law, the enforcement of such provisions is not barred. Therefore, if the MSC was construed under the Act, STS had no duty to defend or indemnify LDI. Reprinted courtesy of Richard W. Brown, Saxe Doernberger & Vita, P.C. and Afua S. Akoto, Saxe Doernberger & Vita, P.C. Mr. Brown may be contacted at rwb@sdvlaw.com Ms. Akoto may be contacted at asa@sdvlaw.com Read the court decision
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Narrow Promissory Estoppel Exception to Create Insurance Coverage

August 07, 2022 — David Adelstein - Florida Construction Legal Updates
There is an affirmative claim known as promissory estoppel. (Whereas equitable estoppel is used an affirmative defense, promissory estoppel is used as an affirmative claim.) To prove promissory estoppel, a plaintiff must plead and prove the following three elements: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.” Romo v. Amedex Ins. Co., 930 So.2d 643, 650 (Fla. 3d DCA 2006) (citation and quotation omitted). Stated differently: “A party will be estopped from denying liability under the principle of promissory estoppel when the party makes ‘[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance…[and] injustice can be avoided only by enforcement of the promise.’” Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Home Prices in 20 U.S. Cities Rose in June at a Slower Pace

August 27, 2014 — Lorraine Woellert – Bloomberg
Home prices in 20 U.S. cities rose at a slower pace in the year ended in June as declining affordability and weak wage gains kept appreciation in check. The S&P/Case-Shiller index of property values increased 8.1 percent from June 2013, the smallest 12-month gain since January 2013, the group reported today in New York. Price gains are slowing as more houses are coming up for sale and investors retreat to the sidelines. That, combined with an improving job market, could put homeownership within reach of more Americans grappling with disappointing wage growth and strict lending rules. Read the court decision
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Reprinted courtesy of Lorraine Woellert, Bloomberg
Ms. Woellert may be contacted at lwoellert@bloomberg.net

Anti-Concurrent Causation Clause Eliminates Loss from Hurricane

September 06, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The court found the insured was not covered for losses caused by Hurricane Laura due to the implementation of the policy's anti-concurrent causation clause. Aegis Sec. Ins. Co. v. Lejeune, 2021 U.S. Dist. LEXIS 106804 (W. D. La. June 7, 2021). At the time of the hurricane, the insureds' home was covered by a manufactured home insurance policy issued by Aegis. The policy excluded coverage for damage "caused by, contributed to or aggravated by" flooding. The policy's anti-concurrent causation clause read, "We do not pay for loss to the types of property covered under this policy caused by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss." The policy's exceptions followed. After the storm, the insureds submitted their claim. Aegis filed suit for declaratory judgment. Aegis relied upon reports that the manufactured home and barn owned by the insureds were damaged by winds, then displaced and destroyed by storm surge associated with the hurricane. The home first sustained damage from the storm's high winds before it was displaced from its concrete piers by a 12 to 16 foot storm surge. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

January 23, 2023 — Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation Blog
The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally. The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived. From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract. Reprinted courtesy of Robert A. Henry, Snell & Wilmer and Emily R. Parker, Snell & Wilmer Mr. Henry may be contacted at bhenry@swlaw.com Ms. Parker may be contacted at eparker@swlaw.com Read the court decision
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