Common Law Indemnification - A Primer
April 12, 2021 —
Brian F. Mark - Hurwitz & Fine, P.C.“Common law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his relationship to the wrongdoer.’” McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375 (2011), quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 (1990).
What is Common Law Indemnification and Who Can Assert it?
Indemnification, in general terms, is the right of one party to shift a loss to another and may be based upon an express contract or an implied obligation. Bellevue S. Assoc. v. HRH Constr. Corp., 78 N.Y.2d 282 (1991). Based on a separate duty owed the indemnitee by the indemnitor, common law indemnification, or implied indemnification, permits one who was compelled to pay for the wrong of another to recover from the wrongdoer the damages paid to the injured party. D’Ambrosio v. City of New York, 55 N.Y.2d 454, 460 (1982); Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507 (2d Dept. 2008).
The premise of common law indemnification is vicarious liability, defined as “liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties” Black’s Law Dictionary (11th ed. 2019). Common law indemnification “reflects an inherent fairness as to which party should be held liable for indemnity.” McCarthy, 17 N.Y.3d at 375. It is a restitution concept which permits shifting the loss because, to fail to do so, would result in the unjust enrichment of one party at the expense of the other. Mas, 75 N.Y.2d at 680, 690; Kingsbrook Jewish Medical Center v. Islam, 172 A.D.3d 1342, 1343 (2d Dept. 2019).
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Brian F. Mark, Hurwitz & Fine, P.C.Mr. Mark may be contacted at
bfm@hurwitzfine.com
Tokyo Tackles Flood Control as Typhoons Swamp Subways
August 20, 2014 —
Jacob Adelman – BloombergBelow the condos and boutiques of Tokyo’s upscale Minato ward -- which includes Roppongi Hills, home to Goldman Sachs Group’s Japan headquarters -- a boring machine has carved out the city’s newest defense against floods.
“There are many buildings, there’s a freeway,” said Satoshi Yamamoto, who’s directing the Tokyo government’s 24.5 billion yen ($240 million) project to build a giant subterranean reservoir -- the city’s second of three -- to handle flood waters from the Furukawa river that winds through the area. “We decided the best approach was to go underground.”
When it’s completed in 2016, the 3.3-kilometer (2-mile) reservoir will be able to handle 135,000 cubic meters of water, enough to fill 54 Olympic-sized swimming pools. Tokyo is becoming increasingly reliant on this solution as more typhoons hit the country each year, a trend that Yamamoto said may be linked to global warming. The flooding is exacerbated by the city’s sprawling concrete footprint that keeps rainwater from seeping safely into the ground.
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Jacob Adelman, BloombergMr. Adelman may be contacted at
jadelman1@bloomberg.net
2021 Construction Related Bills to Keep an Eye On [UPDATED]
March 08, 2021 —
Christopher G. Hill - Construction Law MusingsEach year here at Musings, I try and highlight some key construction industry-related bills that are winding their way through the Virginia General Assembly. This year is no different, though this year does not have the action level that prior years have had.
Without further ado, here are those that I spotted and which I will be “Tracking” as they move through the sausage-making process:
HB2288–
Virginia Public Procurement Act; construction contracts; requirement to submit list of subcontractors. Requires bidders or offerors on contracts for construction of $250,000 or more to submit along with their bid or proposal a list of all subcontractors, regardless of tier, that the bidder or offeror intends at the time of submitting the bid or proposal to use on the contract to perform work valued at $50,000 or more, including labor and materials. The bill requires such list to include certain information about each contractor. This bill also includes a re-passage provision that requires that it be re-enacted in the 2022 session to become effective. Finally, the Senate General Laws and Technology committee has continued this to the First Special Session.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
American Arbitration Association Revises Construction Industry Rules and Mediation Procedures
April 08, 2024 —
Dennis Cavanaugh & Larry Grijalva - Construction Law ZoneThe American Arbitration Association (AAA), one of the longest-standing and experienced alternative dispute resolution (ADR) administrators, has unveiled a significant update to its Construction Industry Rules and Mediation procedures. This update, last revised in 2015, became effective March 1, 2024. Changes to the AAA Construction Industry Rules are significant as these rules are incorporated by default in American Institute of Architects standard construction forms, which are widely used in the industry.
Advancements in remote access technology drive a substantial number of new changes. Others are designed to streamline the arbitrator appointment process and certain prehearing procedures and to make arbitration more cost-efficient by enhancing the arbitrator’s case management authority. Some of the more notable changes are:
Fast Track
F-1: The limit for cases eligible for AAA’s Fast Track Procedures has been increased from $100,000 to $150,000 so long as no claim or counterclaim exceeds that amount.
Reprinted courtesy of
Dennis Cavanaugh, Robinson & Cole and
Larry Grijalva, Robinson & Cole
Mr. Cavanaugh may be contacted at dcavanaugh@rc.com
Mr. Grijalva may be contacted at lgrijalva@rc.com
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Yes, Indeedy. Competitive Bidding Not Required for School District Lease-Leasebacks
October 01, 2014 —
Garret Murai – California Construction Law BlogRemember when you discovered that the tooth fairy wasn’t real?
It was kind of a bummer on one hand learning that it wasn’t a fairy that magically appeared to swap your tooth for cold hard cash, but rather your mom or, visual horrors, dad.
At the same time, it was, to your nearly-halfway-to-a-decade-on-this-planet-wizened-six-year-old mind, confirmation of what you had a sneaking suspicion was the case in any event.
And, so it is with the next case.
Lease-Leasebacks
In California, most public school construction projects are built using the traditional design-bid-build project delivery method in which a design professional designs the project, the project is put out for competitive bid and the selected contractor builds the project.
But not all school construction projects are built this way.
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Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
Subsequent Owners of Homes Again Have Right to Sue Builders for Construction Defects
October 07, 2016 —
Mark L. Parisi – White and Williams LLPOwners of homes with damage from construction defects have long had the standing to sue the builders of their homes using the legal theories of 1) breach of contract, 2) breach of implied warranty, and 3) breach of Pennsylvania’s consumer fraud statute, the Unfair Trade Practices and Consumer Protection Law (UTPCPL).
Before the 2014 decision of the Pennsylvania Supreme Court in Conway v. Cutler, even owners who were not the original purchasers of their homes, so-called subsequent owners, had a right to sue the builder of their homes using implied warranty as the legal theory. But the Supreme Court in Conway said in 2014 that even though an implied warranty theory is not based on a written contract, it is a quasi contract theory and because subsequent owners never had a contractual relationship with the builder of their home, the implied warranty cause of action was not available. Subsequent purchasers were thus left without a remedy for damage from defective construction in their homes and builders had a second safe harbor from claims regarding homes they built. The first safe harbor is Pennsylvania’s Statute of Repose. If the home was completed more than 12 years before a lawsuit was filed, the Statute of Repose bars the claim. But after Conway, if the home was sold, this also cut off a builder’s potential liability for construction defects in the home.
ENTER THE UTPCPL
On July 26, 2016 the Pennsylvania Superior Court in the case of Adams v. Hellings Builders issued a non-published (and therefore non-precedential) decision in a stucco construction defect case that held that subsequent purchasers could sue their home’s builder under the UTPCPL because the Act had no requirement that the purchaser of a product, or home, be the original purchaser. The decision cites several other appellate cases not involving construction defect claims that held that the UTPCPL was a valid legal theory for claims regarding products purchased second hand by the plaintiffs in those other cases. The court in Adams held that there was no reason that a suit regarding construction defects in a home should be treated any differently.
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Mark L. Parisi, White and Williams LLPMr. Parisi may be contacted at
parisim@whiteandwilliams.com
SunTrust Will Pay $968 Million to Resolve Mortgage Probes
June 18, 2014 —
Tom Schoenberg – BloombergSunTrust Banks Inc. (STI) agreed to pay $968 million to resolve federal and state claims that a unit misrepresented the quality of mortgages the bank originated and deceived homeowners on loans it serviced.
The agreement covers loans SunTrust Mortgage made from January 2006 through March 2012 that were backed by the Federal Housing Administration even though they didn’t meet agency requirements, the Justice Department said in a statement today. Atlanta-based SunTrust disclosed the agreement in an October regulatory filing and has already accounted for the payment.
“SunTrust’s conduct is a prime example of the widespread underwriting failures that helped bring about the financial crisis,” Attorney General Eric Holder said in a statement. “We will continue to hold accountable financial institutions that, in the pursuit of their own financial interests, misuse public funds and cause harm to hardworking Americans.”
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Tom Schoenberg, BloombergMr. Schoenberg may be contacted at
tschoenberg@bloomberg.net
GRSM Team Wins Summary Judgment in Million-Dollar HOA Dispute
December 17, 2024 —
Robert A. Bragalone & B. Ryan Fellman - Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani Partner Bob Bragalone and Senior Counsel Ryan Fellman won a complete summary judgment on behalf of five board members who had been added to an HOA dispute by the defendant homeowners. The GRSM team resolved the matter within just 60 days of taking over the case, bringing an end to a legal battle that had lasted more than four years.
The dispute began when the HOA, as plaintiff, filed suit against the homeowners in Denton County District Court. The HOA alleged that the homeowners had violated the HOA’s Covenants, Conditions, and Restrictions by constructing a non-conforming carport and sought a declaratory judgment to resolve the issue. In response, the homeowners filed a counterclaim and third-party petition, adding the individual HOA board members to the lawsuit. They accused the board members—who were serving in a voluntary capacity—of mishandling the dispute and filed claims against them for intentional infliction of emotional distress, negligence, and gross negligence.
Reprinted courtesy of
Robert A. Bragalone, Gordon Rees Scully Mansukhani and
B. Ryan Fellman, Gordon Rees Scully Mansukhani
Mr. Bragalone may be contacted at bbragalone@grsm.com
Mr. Fellman may be contacted at rfellman@grsm.com
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