Yes, Virginia, Contract Terms Do Matter: Financing Term Offers Owner an Escape Hatch
November 25, 2024 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday, Musings welcomes Timothy R. Hughes, Esq., LEED AP. Tim (@vaconstruction on Twitter) is Of Counsel to the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim served as the previous Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He has served in numerous volunteer, board and leadership roles with such organizations as the Arlington Chamber of Commerce, the Northern Virginia Building Industry Association, Vanguard Services Unlimited, Leadership Arlington, Associated Builders & Contractors (Metro DC and Virginia), and numerous other volunteer and construction trade association activities. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.
A recent Virginia case once again demonstrates that contract terms matter. An unusual financing term allowed the owner of a project a complete escape from any liability on a project despite significant work being performed. The opinion from the Circuit Court of Norfolk involved five separate cases consolidated together, four claims by subcontractors and one by the general contractor Turner. All five cases hinged on an unusual financing clause in Turner’s contract with the other. That provision stated:
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Avoiding Construction Defect “Nightmares” in Florida
November 27, 2013 —
CDJ STAFFDescribing it as a “nightmare,” Larry Tolchinsky writes about construction defects at the Willowbrook condominium complex in Florida. Writing on the website of his firm, Sackrin & Tolchinsky, Mr. Tolchinsky gives the history of the Willowbrook condo case, in which condo owners suffered problems with water intrusion and subsequent damage to their units. The builder has agreed to make repairs, though they are still suing owners who put up a website critical of the company.
Mr. Tolchinsky notes that this is not “the usual way things happen in construction defect lawsuits,” and he gives the usual process. Under Florida law, homeowners must first notify those responsible of a “problem and its need for repair.” After this notice, the homeowner “will know within about 6 weeks’ time after sending that formal notice what the contractor’s position is going to be on things.”
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Newmeyer & Dillion Named for Top-Tier Practice Areas in 2018 U.S. News – Best Law Firms List
November 02, 2017 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – NOVEMBER 2, 2017 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that U.S. News-Best Lawyers® recognized the firm's Orange County office in its "Best Law Firms" 2018 list, ranking five of its practice areas with its highest ranking possible - Tier 1. These areas include Commercial Litigation, Construction law, Insurance law, Litigation - Construction and Litigation - Real Estate.
"We continue to be honored that our clients and peers recognize the foundational principles this firm was built on - personalized service and achieving the best results possible." said Jeff Dennis, Newmeyer & Dillion's Managing Partner.
Firms included in the 2018 "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
The 2018 rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the U.S. More than 21,000 attorneys provided almost 700,000 law firm assessments, and more than 8,0000 clients provided more than 47,000 evaluations.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 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 have been given Martindale-Hubbell Peer Review's AV Preeminent highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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ASCE Statement on National Dam Safety Awareness Day - May 31
June 06, 2022 —
Dennis D. Truax, President, American Society of Civil Engineers (ASCE)Washington, DC. – Nationwide, more than 92,000 dams protect communities across the country, providing numerous services including irrigation, water conservation, and flood protection. Advocating for the safety, robustness, and sustainability of our nation's dams is a top priority for ASCE as we recognize May 31 as National Dam Safety Awareness Day.
National Dam Safety Awareness Day is observed in remembrance of the "Johnstown Flood" on May 31, 1889. Failures of the South Fork Dam near Johnstown, PA, resulted in the death of more than 2,200 people. This tragedy serves as an illustration of the critical importance of effectively maintaining and managing our nation's dams and ensuring that adequate dam safety measures remain in place to avoid these preventable tragedies.
ASCE's
2021 Report Card for America's Infrastructure gave the nation's dams a "D" grade. Of the nation's 92,000 dams, more than 15,000 are classified as having "high hazard potential", meaning that dam failure would result in the loss of life. While increased state investment in dam safety programs has allowed for better assessment of dams and the ability to identify rehabilitation needs as well as potential hazards, increased federal investment is still needed to ensure the safety of dams nationwide.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Think Before you Execute that Release – the Language in the Release Matters!
June 17, 2024 —
David Adelstein - Florida Construction Legal UpdatesIf you execute a release in exchange for payment or other consideration, remember the language in the release means something. THE RELEASE LANGUAGE MATTERS! And the meaning in the release may be way more than you intended so please make sure you truly digest and consider release language before executing.
This sentiment could not be truer than in the 2009 decision Bell BCI Company v. United States, 570 F.3d 1337 (Fed. Cir. 2009). In this case, a contractor entered into a modification (change order) with the government. The modification included the following language:
increase the contract amount by $2,296,963 … as full and equitable adjustment for the remaining direct and indirect costs of the Floor 4 Fit-out (EWO 240–R1) and full and equitable adjustment for all delays resulting from any and all Government changes transmitted to the Contractor on or before August 31, 2000.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Texas Shortens Its Statute of Repose To 6 Years, With Limitations
October 02, 2023 —
Jason Daniel Feld & Roni Most - Kahana FeldEffective June 9, 2023, Texas has shortened its statute of repose from the existing 10-year statute for builders of new homes to 6-years under specific conditions. The significantly shorter statute of repose bars suits against construction contractors of detached one-and two-family homes and townhomes, filed six years after the substantial completion of such homes, where the contractor also furnished a written warranty in compliance with the statute. Notably, projects including apartments, mixed-use, and hotels are not covered by the new law. It is also noted that a grey area in the law exists as to whether condominiums will be covered by the statute. The statute of repose strictly bars the filing of any action, claim or arbitration demand regardless of when the injury was actually discovered (latent defects) and is separate and distinct from any applicable statute of limitations.
The New Texas Statute of Repose Law
Under the
Texas Civil Practice & Remedies Code § 16.009, persons who construct or repair improvements to real property cannot be sued for defective or unsafe conditions of the property or deficiencies in the construction or repair of the improvement later than 10 years after substantial completion of the improvement, except in certain narrow circumstances. This statute is known as the “statute of repose.” The statute applies not only to suits for construction defects, but also personal injury, wrongful death, contribution, and indemnity.
Reprinted courtesy of
Jason Daniel Feld, Kahana Feld and
Roni Most, Kahana Feld
Mr. Feld may be contacted at jfeld@kahanafeld.com
Mr. Most may be contacted at rmost@kahanafeld.com
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Motion for Summary Judgment Gets Pooped Upon
December 16, 2023 —
Garret Murai - California Construction Law BlogI’ve read some crappy motions over the years, some of which opposing counsel might even attribute to me, but I don’t think I’ve ever written about poop and motions.
In Beebe v. Wonderful Pistachio & Almonds LLC, a summary judgment motion filed by a project owner sued by a construction worker for personal injuries caused by bird poop, which in turn caused a nasty fungal infection which spread to his brain, resulted in a not-so-wonderful ending for Wonderful.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Housing Starts in U.S. Climb to an Almost Eight-Year High
August 19, 2015 —
Sho Chandra – BloombergNew-home construction in the U.S. climbed in July to the highest level in almost eight years, indicating the industry will pick up in the second half of the year.
Residential starts rose 0.2 percent to a 1.21 million annualized rate, the most since October 2007, from a 1.2 million pace in the prior month that was higher than previously estimated, a Commerce Department report showed Tuesday in Washington. The median forecast of 77 economists surveyed by Bloomberg was 1.18 million. A drop in permits, a proxy for future construction, signals additional gains will take time to develop.
Rising employment and historically low mortgage rates are enticing buyers, while increasing prices induced by a lack of homes on the market is an incentive to start new developments. Data showing builder sentiment at a decade high in August underscores the view that the housing rebound will stay on track even as the Federal Reserve is poised to boost borrowing costs.
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Sho Chandra, Bloomberg