Where Breach of Contract and Tortious Interference Collide
January 11, 2022 —
Christopher G. Hill - Construction Law MusingsClaims for breach of contract are numerous in the construction law world. Without these claims we construction attorneys would have a hard time keeping the doors open. A 2021 case examined a different sort of claim that could arise (though, “spoiler alert” did not in this case) during the course of a construction project. That type of claim is one for tortious interference with business expectancy.
In Clark Nexsen, Inc. et. al v. Rebkee, the U. S. District Court for the Eastern District of Virginia gave a great explanation of the law of this type of claim in analyzing the following basic facts:
In 2018, Clark Nexsen, Inc. (“Clark”) and MEB General Contractors, Inc. (“MEB”) responded to Henrico County’s (“Henrico”) Request for Proposals (“RFP”) for the design and construction of a sport and convocation center (the “Project”). Henrico initially shortlisted Clark and MEB as a “design-build” team for the Project, but later restarted the search, issuing a second RFP. Clark and MEB submitted a second “design-build” proposal, but Henrico selected Rebkee Co. (“Rebkee”) for certain development aspects of the Project. MEB also submitted proposals to Rebkee, and Rebkee selected MEB as the design-builder for the Project. MEB, at Rebkee’s request, solicited proposals from three design firms and ultimately selected Clark as its design partner. From December 2019 to May 2020, Clark and MEB served as the design-build team to assist Rebkee in developing the Project. In connection therewith, Clark developed proprietary designs, technical drawings, and, with MEB, several cost estimates. In February 2020, MEB submitted a $294,334.50 Pay Application to Rebkee for engineering, design, and Project development work. Rebkee never paid MEB. Henrico paid MEB $50,000.00 as partial payment for MEB’s and Clark’s work. MEB then learned that Rebkee was using Clark’s drawings to solicit design and construction proposals from other companies. On July 23, 2020, Rebkee told MEB that Henrico directed it to cancel the design-build arrangement with MEB and Clark and pursue a different planning method. MEB and Clark sued and Rebkee for, among other claims, tortious interference with a business expectancy. Rebkee moved to dismiss the tortious interference claim.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Ahlers Cressman & Sleight PLLC Recognized Among The Top 50 Construction Law Firms by Construction Executive
June 20, 2022 —
Scott R. Sleight - Ahlers Cressman & Sleight PLLCACS is proud to announce it has once again been ranked among The Top 50 Construction Law FirmsTM in the Construction Executive 2022 rankings. ACS is the highest ranked law firm in the US practicing out of a single office.
ACS specializes in delivering the highest quality construction law services. ACS prides itself on providing excellent services to clients in matters relating to contract documents, construction dispute resolution, and government contracts. If resolution efforts fail, ACS has the experience and ability to represent clients in high-stakes litigation. Since 2018, ACS has obtained three significant jury verdicts in favor of its general contractor clients, including awards of prevailing party attorneys’ fees and costs and expenses.
Founded in 2007, ACS’ vast knowledge and industry experience led our lawyers to hold many leadership positions. Three of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and many of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters. We have represented construction firms before the Supreme Court and the Court of Appeals in numerous precedent-setting cases, and have testified before the Legislature. ACS’ commitment to the construction industry shows in our results.
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Scott R. Sleight, Ahlers Cressman & Sleight PLLCMr. Sleight may be contacted at
scott.sleight@acslawyers.com
Not Pandemic-Proof: The Ongoing Impact of COVID-19 on the Commercial Construction Industry
December 06, 2021 —
George B. Green Jr. - Construction ExecutiveThe impact of COVID-19 has been felt in nearly every industry and arena across the country, with the exception of construction—or so that is the general perception. Perceptions are often wrong though, and this one is no different. The truth is that the construction industry has been hit just as hard, if not harder, than every other industry.
As the COVID-19 pandemic struck in the spring of 2020, construction projects plowed forward full steam ahead. Roadwork seemed to increase and developers continued to systematically acquire property and initiate large-scale projects. Perhaps it was these observations that led many to the conclusion that construction was pandemic-proof as the rest of society attempted to cobble together something that vaguely resembled a normal business year. But the construction industry has endured many challenges over the last 18 months, and unfortunately, the challenges do not appear to be evaporating anytime soon.
The industry has been primarily affected in the areas of scheduling, manpower and permitting, which has ultimately affected pricing. The entire way jobs are scheduled has been turned upside down. The supply chain issues that many have experienced for everyday household items have hit the construction industry as well.
Reprinted courtesy of
George B. Green Jr., Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Green may be contacted at
ggreen@wwhgd.com
Supreme Court Opens Door for Challenges to Older Federal Regulations
August 05, 2024 —
Jane C. Luxton - Lewis BrisboisWashington, D.C. (July 1, 2024) – On July 1, 2024, the U.S. Supreme Court issued another end-of-term major decision limiting the scope of federal agency actions in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. Adding to the tectonic shift in the regulatory landscape created by the Court’s June 27 and 28 rulings constraining the role of administrative law judges and overturning longstanding “Chevron deference” by courts to federal agency expertise, the decision in Corner Post establishes a newly expanded time frame for affected entities to challenge final agency action. Instead of confirming that final agency action is subject to a default six-year statute of limitations, the Court held that under the Administrative Procedure Act (APA), the time limit for appeal begins to run when a plaintiff is injured by the agency's action, not when the action becomes final. This decision has important implications for businesses and others affected by federal regulations.
The case arose when Corner Post, a truck stop and convenience store in North Dakota that opened in 2018, challenged a 2011 Federal Reserve Board regulation (Regulation II) that set maximum interchange fees for debit card transactions. Corner Post filed suit in 2021, arguing that Regulation II allowed higher fees than permitted by statute. The lower courts dismissed the suit as time-barred under 28 U.S.C. § 2401(a), which effectively requires APA claims to be filed "within six years after the right of action first accrues."
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Jane C. Luxton, Lewis BrisboisMs. Luxton may be contacted at
Jane.Luxton@lewisbrisbois.com
Congress Considers Pandemic Risk Insurance Act to Address COVID-19 Business Interruptions Losses
May 18, 2020 —
Richard W. Brown & Andres Avila - Saxe Doernberger & Vita, P.C.The draft legislation, entitled the Pandemic Risk Insurance Act of 2020 (“PRIA”), would establish a Federal Pandemic Risk Reinsurance Fund and Program (the “Program”), that is intended to provide a system of shared public and private compensation for business interruption (“BI”) losses resulting from a pandemic or outbreak of communicable disease. PRIA, in its current draft form, is modeled after and in many ways mirrors the Terrorism Risk Insurance Act that was enacted to address catastrophic losses resulting from acts of terrorism.
PRIA effectively mandates that participating insurers provide coverage for any business interruption loss resulting from an outbreak of infectious disease or pandemic that is declared an emergency or major disaster by the President and certified by the Secretary of Treasury (the “Secretary”) as a public health emergency. PRIA would be triggered in the case of certified public health emergencies upon the aggregate industry insured losses exceed $250 million dollars, and include an annual aggregate limit capped at $500 billion dollars. The draft bill provides that the Secretary would administer the Program and pay the Federal share of compensation for insured losses, which would be 95% of losses in excess of an applicable insurer annual deductible, once the Program is triggered. The compensation would benefit those insurers that elect to participate in the Program in exchange for a premium paid by the participating insurer for reinsurance coverage under the Program.
Reprinted courtesy of
Richard W. Brown, Saxe Doernberger & Vita, P.C. and
Andres Avila, Saxe Doernberger & Vita, P.C.
Mr. Brown may be contacted at rwb@sdvlaw.com
Mr. Avila may be contacted at ara@sdvlaw.com
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Hurricane Milton Barrels Toward Florida With 180 MPH Winds
October 07, 2024 —
Brian K Sullivan & David R Baker - BloombergMilton exploded into the Atlantic’s strongest hurricane this year, bearing down as a catastrophic Category 5 storm on a Florida region still struggling to recover from Helene’s devastation.
Milton’s top winds reached 180 miles (290 kilometers) per hour, up from 90 mph just 16 hours earlier, the US National Hurricane Center said in an advisory at 5 p.m. New York time. Milton now bests Hurricane Beryl, which raked Texas, Mexico and the Caribbean in July, as the most powerful Atlantic storm this season.
With winds this intense, Milton is capable of collapsing homes, flattening trees and triggering power outages that could last weeks to months. It’s difficult for hurricanes to maintain their maximum strength for long, however, so Milton’s winds may drop as it nears Florida’s west coast. Only four Category 5 hurricanes have hit the US mainland, including Michael, which struck Florida’s Panhandle in 2018.
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Brian K Sullivan, Bloomberg and
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Is the Manhattan Bank of America Tower a Green Success or Failure?
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFConstruction Digital reported that the Bank of America tower in Manhattan, New York, “has been conversely hailed as both the greenest skyscraper in the world and an energy-guzzling toxic tower that exposes the charade of the LEED rating system.” It is the first skyscraper to ever achieve the highest LEED Platinum rating. However, a critic alleged that the eighty-year old Empire State Building “uses half the energy” of the new Bank of America tower.
The Bank of America tower, designed by architects Cook and Fox, was built with “local and recycled materials,” as well as “floor-to-floor insulated glazing” that maximizes “natural light and traps heat, and lights are automatically dimmed in daylight.” Rainwater is captured for reuse, and “waterless urinals save an estimated 8,000,000 US gallons of water per year.”
However, Construction Digital reported that Sam Roudman in New Republic Magazine “pointed out that buildings contribute more to global warming than any other sector of the economy, consuming more energy and producing more greenhouse gas emissions in America than every car, bus, jet, and train combined; and furthermore, than every factory combined.”
Joel Levy writing for Construction Digital declared, “We can call LEED a failed artifice and even suggest abandoning it as a pointless charade, but unless we want to live in caves and go back to using candles for light, we must accept the fact that the 155,000,000 people that make up America’s workforce power the country and indeed the world’s economy…need somewhere to work.”
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WSHB Secures Victory in Construction Defect Case: Contractor Wins Bench Trial
October 01, 2024 —
Wood Smith Henning & BermanWood Smith Henning & Berman is pleased to announce a significant victory in a bench trial led by trial attorney
Thomas Fama. The case, which had been pending for nearly five years due to pandemic-related delays and unreasonable demands by the plaintiff, concluded with a resounding judgment in favor of the defendant.
"The result of this trial is a testament to our team's unwavering tenacity and strategic focus throughout the entire process," stated WSHB partner Tom Fama, lead counsel in the case. "We kept our eye on the proverbial ball and diligently worked to expose the lack of evidence supporting the plaintiff's claims."
The matter involved allegations of defective installation of a solar energy system, which the plaintiff claimed leaked during inclement weather. Fama and his team successfully demonstrated that the plaintiff's claims lacked substance, highlighting numerous pre-existing conditions on the roof that could have been responsible for the problem.
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Wood Smith Henning & Berman
