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DIRECTORY AND CAPABILITIES

Denver Council Committee Approves Construction Defects Ordinance

October 28, 2015 — Beverley BevenFlorez-CDJ STAFF
According to The Denver Post, the Denver City Council panel advanced a proposed construction defects ordinance proposal 5-0. While “Mayor Michael Hancock and development and business interests…say protections for homeowners have depressed construction” others, such as “homeowner groups[,] have opposed the proposal vocally.” The Denver Post reported that under the ordinance, “a project could not be called defective in a civil action if it was built and maintained in conformance to the building code. Building code violations could be cited in a lawsuit only if they could be linked to actual damage or injury. And it would take the consent of a majority of condo unit owners to initiate a defects lawsuit.” Read the court decision
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Update: Lawyers Can Be Bound to Confidentiality Provision in Settlement Agreement

January 13, 2020 — Danielle Ward, Esq. - Balestreri Potocki & Holmes
In July 2019, the California Supreme Court ruled that an attorney’s signature under the often-used phrase “approved as to form and content” does not preclude a finding that the attorney could be bound to the terms of a settlement agreement. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781.) This decision marks a reversal of the Fourth District Court of Appeal’s 2018 ruling that approval of a contract is not tantamount to an agreement to be bound by that contract. The underlying action stemmed out of a wrongful death suit by Wendy Crossland and Richard Fournier, parents of the decedent, against Monster Energy Company. The parties negotiated a settlement, a critical of element of which was a confidentiality provision aimed at keeping the the settlement secret. The confidentiality provision prohibited plaintiffs and their counsel of record from disclosing both the existence of the settlement, or the terms thereof, to any person, entity, or publication, including the legal website Lawyers & Settlements. The attorneys signed the agreement under the phrase “approved as to form and content.” Shortly after the settlement agreement was executed, the Plaintiffs’ attorney Bruce Schechter disclosed his clients’ settlement with Monster in an interview with Lawyers & Settlements. Monster filed suit against Mr. Schechter for breach of contract, among other causes of action. Mr. Schechter challenged the lawsuit with a SLAPP motion, essentially arguing that the lawsuit was meritless and merely an attempt to thwart freedom of speech. The trial court denied Mr. Schechter’s motion as to the breach of contract cause of action finding that the settlement clearly contemplated that the attorneys were subjected to the terms of the agreement, and Schechter’s claim that he was not a party because he merely approved as to form and content was “beyond reason.” The Fourth District Court of Appeal reversed, concluding that Mr. Schechter was not a party to the agreement by virtue of his signature approving the form and content, and the Plaintiffs had no authority to bind their attorney to the terms of the agreement. The Court of Appeal found that by affixing his signature to the agreement Mr. Schechter was merely manifesting his “professional thumbs up” in line with legal industry’s customary understanding. In its reversal, the California Supreme Court did not disturb the legal community’s understanding of the phrase “approved as to form and content.” Rather, the Court concluded that an attorney’s signature under that often-used phrase does not preclude as a matter of law that the attorney intended to be bound by the agreement. The entire agreement, including the substantive provisions, need to be examined to determine the attorney’s intent in affixing his/her signature to the agreement. Turning to the Crossland/Fournier Monster settlement agreement, the Court was unpersuaded by Mr. Schechter’s argument that he was not bound to the agreement because counsel was not included in the definition of “party”. The Court stated that it’s the substance of the agreement that determines whether counsel is a party to the contract, as opposed to a party to the lawsuit. The Court was persuaded, in part, by the important role that confidentiality plays in brokering settlements. It noted that public disclosure of private settlements would serve to “chill” parties’ ability to resolve matters short of trial, and there was little doubt that confidentiality was an important term of the Crossland/Fournier Monster settlement. In concluding that Monster had met its burden to defeat an anti-SLAPP motion, the Court pointed to the numerous references to counsel in the substantive provisions of the agreement which a trier of fact could conclude bound Mr. Schechter to the confidentiality terms. Danielle Ward has concentrated her law practice on defending developer, general contractor, and subcontractor clients in a variety of construction matters. She has been an attorney with Balestreri Potocki & Holmes since 2010 and can be reached at dward@bph-law.com. Read the court decision
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Court of Appeal Confirms Privette Doctrine as Applied to Passive Conduct of Property Owner

March 22, 2018 — Bruce Cleeland and Frances Ma – Publications & Insights
In Delgadillo v. Television Center, Inc., 2018 No. B270985, the California Court of Appeal examined and refined the Privette doctrine. Mr. Delgadillo worked as a supervisor/window cleaner for a company named Chamberlin Building Services (CBS). Television Center, Inc. (TCI) purchased an existing building and thereafter contracted with CM Cleaning Solutions, Inc. (CMC) to provide cleaning and janitorial services. CMC, on behalf of TCI, solicited a proposal from CBS to wash the building’s windows. CBS and its employees made all decisions about how the window washing would be accomplished. The window washing equipment used on the job was owned, inspected and maintained by CBS. In violation of CBS’ policy, Mr. Delgadillo, attached a safety line to a single connector which was not an acceptable anchor point. The bracket failed and Mr. Delgadillo fell 50 feet to his death. Survivors of Mr. Delgadillo filed suit against TCI for negligence and negligence per se, alleging that Mr. Delgadillo was fatally injured because TCI failed to install structural roof anchors, as required by several statutes. Reprinted courtesy of Bruce Cleeland, Haight Brown & Bonesteel LLP and Frances Ma, Haight Brown & Bonesteel LLP Mr. Cleeland may be contacted at bcleeland@hbblaw.com Ms. Ma may be contacted at fma@hbblaw.com Read the court decision
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Back Posting with Thoughts on Lien Waivers

May 20, 2015 — Christopher G. Hill – Construction Law Musings
After a week of being unable to post due to the rigors of my solo construction practice, I’m back on the blogging train. For those of you that missed my new musings this past week, I hope that you had a chance to look through some of the past Guest Post Friday posts for some good stuff to read. During the course of my busy week last week, a question came up regarding the mechanic’s lien waivers that commercial construction companies routinely execute as part of the payment process. The waiver forms vary, but each essentially states that in exchange for payment the payee, whether a subcontractor or supplier (or even general contractor) waives its future rights to record a mechanic’s lien for the work that is covered by the payment received. Most if not all of these forms further require a certification that the funds paid will either be used to pay suppliers or that suppliers have already been paid. This general description is not the reason for this post. As is always the case in the Commonwealth of Virginia where the contract is king and a court is unlikely to reinterpret any written contractual document, the devil is in how that waiver is worded. Some waivers are worded in such a way that they essentially require a payee to certify receipt of the funds prior to payment being received. These same forms require the same pre-payment certification that all suppliers and subcontractors of the payee have already been paid. In short they require a payee to both place complete trust in the payor that the check will be paid and that the check will not bounce while in many cases (often with an unstated “wink and nod”) claiming payment was already made when all know the likelihood is that it has not. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Pulte’s Kitchen Innovation Throw Down

December 10, 2015 — Beverley BevenFlorez-CDJ STAFF
Pulte Group’s national purchasing director, Kellee Hansen, created a kitchen competition where six unaffiliated manufacturers competed against each other to build a kitchen vignette based on three consumer segments, reported Builder Online. On October 19th, each team had fifteen minutes to present their vignettes to about 100 people. “In our industry, I think we lack some collaboration, historically,” Hansen told Builder Online. “Listening to our suppliers just makes us better and it makes us better as an industry. I think it raises the level for all our peers as well when we listen to our manufacturers.” Read the court decision
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Construction Defect Claim Survives Insurer's Summary Judgment Motion Due to Lack of Evidence

December 23, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court denied the insurer's motion for summary judgment on a construction defect claim due to lack of evidence. Statesboro Erectors, Inc. v. Owners Ins. Co., 2024 U.S. Dist. LEXIS 176555 (N.D. Ga. Sept. 30, 2024). Griffco was the general contractor for a construction project. King Steel was hired as the "steel fabricator." King Steel subcontracted with Statesboro Erectors to complete certain construction work at the site. Statesboro agreed to the complete, proper and safe erection of the structural steel. A steel collapse occurred at the construction site. According to King Steel, the collapse "appeared to have occurred due to lack of temporary cables or bracing for steel columns." Because of the collapse, King Steel was required to supply additional materials to replace the structural damage caused by the collapse. 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

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Texas “your work” exclusion

January 06, 2012 — CDCoverage.com

In American Home Assurance Co. v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011), claimant Ergon hired insured Cat Tech to perform service on a reactor at Ergon’s refinery. During a start-up of the reactor after Cat Tech had completed its work, the reactor suffered damage. Cat Tech performed additional service and repairs. However, again upon start-up of the reactor, it suffered additional damage. Ergon hired another contractor to repair the reactor. Ergon initiated arbitration proceedings against Cat Tech. Cat Tech’s CGL insurer American Home defended Cat Tech against the Ergon arbitration under a reservation of rights.

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Insurer's Summary Judgment Motion on Business Risk Exclusions Fails

November 15, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The insurer unsuccessfully moved for summary judgment on the CGL policy's business risk exclusions. Scottsdale Ins. Co. v. TL Spreader, LLC, (W.D. La. Oct. 20, 2017). Helena Chemical Company contracted with its customer Wild Farms to sell and apply certain herbicides and pesticides to Wild Farms' 123 acre rice filed. Helena subcontracted the TL Spreader, LLC (TLS) to apply the chemicals to Wild Farm's rice field. The TLS employee failed to properly neutralize a chemical being used in the spray. TLS finished its work on May 6, 2014, completing all its work for Helena's contract with Wild Farms. Three days after completion of the spraying, the rice crop first began to exhibit physical damage in the form of abnormal stunting, lesions, yellowing and death. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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