So, You Have a Judgment Against a California Contractor or Subcontractor. What Next? How Can I Enforce Payment?
May 04, 2020 —
William L. Porter - Porter Law GroupThe Contractors’ State License Board (“CSLB”) represents the interests of the public in California construction matters. In the field of California construction, the CSLB is all powerful. The agency has the right to suspend the license of any contractor or subcontractor who does not pay on a construction related judgment against it. If you are successful in obtaining a court judgment against a contractor or a subcontractor in a construction-related case, you can utilize the services of the CSLB to suspend the contractors’ license of that contractor or subcontractor until the judgment has been paid. Once the license is suspended, the contractor or subcontractor has no legal right to work as a contractor or subcontractor and can even be arrested for doing so. Details on using the CSLB to suspend the license of a contractor or subcontractor who has a construction-related judgment against it can be accessed at this particular CSLB link:
CSLB – Judgment.
On receipt of notice of the construction-related judgment, the CSLB will either suspend the contractors’ license of any contractor or subcontractor who does not pay on the judgment or who does not appeal the judgment to the Court of Appeals or file bankruptcy within 90 days. There also exists an opportunity for the licensed debtor to file a bond with the CSLB. The bond will either have to be renewed annually or the judgment paid, whichever comes first.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Property Owner’s Defense Goes Up in Smoke in Careless Smoking Case
September 23, 2019 —
Michael J. Ciamaichelo - The Subrogation StrategistProperty owners owe a duty of reasonable care to avoid causing harm to neighboring properties. When a property owner knows or should know about a condition that poses a risk of danger to neighboring properties, the property owner must exercise reasonable care to make the condition safe. The Court of Special Appeals of Maryland recently held that, where hundreds of discarded cigarette butts had accumulated in a bed of mulch over an extended period of time prior to the fire at issue, the owner of the property with the mulch beds owed a duty of care to its neighbors to prevent a foreseeable fire.
In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 2019 Md. App. LEXIS 430 (May 30, 2019), a fire originated in a strip of mulch at property owned by the Steamfitters Local Union No. 602 (Union) and caused damage to neighboring properties. The fire occurred when an unknown person discarded a cigarette butt into the mulch. Following the fire, investigators found “hundreds, if not thousands of cigarettes” in the mulch where the fire originated. A representative for the Union acknowledged that there were more butts in the mulch “than there should have been” and that, “[i]n the right situation,” a carelessly discarded cigarette could cause a fire. The Union, however, had no rules or signs to prohibit or regulate smoking at the property, where apprentices would often gather prior to class.
The insurance companies for the damaged neighbors filed subrogation actions alleging that the Union, as the property owner, failed to use reasonable care to prevent a foreseeable fire. A jury found in favor of the subrogating insurers and against the Union.
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Michael J. Ciamaichelo, White and Williams LLPMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
Insurers Reacting to Massachusetts Tornadoes
August 11, 2011 —
CDJ STAFFThe Patriot-Ledger reports that insurers could pay out as much as $200 million to cover homes damaged or destroyed in the tornadoes that hit central and southern Massachusetts in June, 2011. Joseph Murphy, Commissioner of the State Division of Insurance didn?t foresee problems with insurers covering these claims. “At this point, there doesn’t seem to be any one company overexposed in that area,” he told the Patriot-Ledger.
Insurance executives did not think the tornadoes would cause them to raise rates. Steve Chevalier, CEO of NLC Companies, said, “it’s a major event for those impacted by it, but it’s not close to a financial hit to us.”
One insurer noted that the winter weather generated more claims; however the cumulative value of those claims was $15 million.
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Foreclosing Junior Lienholders and Recording A Lis Pendens
July 13, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhen you foreclose on a construction lien, there are a couple of pointers to remember.
First, you want to make sure you include junior lienholders or interests you are looking to foreclose (or you want to be in a position to amend the foreclosure lawsuit to identify later). The reason being is you want to foreclose their interests to the property. “[J]unior interest holders are a narrow class of mortgagees whose interest in the underlying property is recorded after the foreclosing contractor’s claim of lien is filed. This class is routinely joined to the construction lien enforcement action under section 713.26 to allow the construction lienor to foreclose out the junior lienholder’s interest in the property encumbered by the construction lien.” See Decks N Sunch Marine, infra.
Second, you want to record a lis pendens with the lien foreclosure lawsuit. Failure to do so could be problematic because Florida Statute s. 713.22(1) provides in part, “A lien that has been continued beyond the 1-year period by the commencement of an action is not enforceable against creditors or subsequent purchasers for a valuable consideration and without notice, unless a notice of lis pendens is recorded.”
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law
May 10, 2021 —
Gus Sara - The Subrogation StrategistIn Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort.
In Earl, the plaintiff, Lisa Earl, entered into an agreement with defendant NVR, Inc. (NVR) for the construction and sale of a home in Allegheny County, Pennsylvania. Ms. Earl learned of the home through NVR’s marketing, which described the home as containing “quality architecture, timeless design, and beautiful finishes.” Ms. Earl alleged that during the construction of the home, she had further discussions with agents of NVR, who made representations that the home would be constructed in a good and workmanlike manner and that any deficiencies noted by Ms. Earl would be remedied. The defendant also assured Ms. Earl that the home would be constructed in accordance with relevant building codes and industry standards. After moving into the home, Ms. Earl discovered several material defects in the construction. She provided notice of these defects to NVR, but NVR’s attempts to repair some of the defects were inadequate.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Homeowner Sues Brick Manufacturer for Spalling Bricks
October 22, 2013 —
CDJ STAFFA Columbia, South Carolina homeowner has sued Kinney Brick Co., alleging that the bricks used in his home were defective and are now crumbling. The lawsuit alleges that the manufacturer and the distributor were both aware that the bricks would retain moisture and crumble.
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What Every Project Participant Needs to Know About Delay Claims
August 05, 2024 —
Andrew G. Vicknair - The Dispute ResolverA “delay” on a construction project is defined as the stretching out of the time for completion of certain key milestone scopes of work which can impact the completion date of an entire project, due to some circumstances or events that were not reasonably anticipated when the project began. 2 Construction Law ¶ 6.01 (Matthew Bender, 2024). While delays can be caused by any number of events, the most common are defective plans and specifications; design changes; severe weather and other, similar unforeseeable events; unforeseen or differing site conditions; unavailability of materials or labor; labor inefficiencies or stoppages; contractor negligence; and owner influences, including construction changes or outright interference by the owner or its agents. If the project schedule is not recovered following a delay, then the project schedule will likely be extended, resulting in an increase in the contractor’s costs of performance. A contractor that has experienced a delay on a project can take certain actions to pursue recovery of any damages the contractor may have incurred. However, to do so it is important to understand the different types of delays and the methods for establishing the delays.
I. Types of Delays
Delays may be categorized as (1) critical versus non-critical delays, (2) excusable versus non-excusable delays, and (3) compensable versus non-compensable delays. A critical delay is a delay that affects the project completion date and delays the entire project. In essence, a critical delay is one that will extend the critical path of a project. A non-critical delay is a delay that has no effect on the project’s critical path. Courts have recognized that delays to work not on the critical path will generally not delay the completion of a project. G.M. Shupe, Inc. v U.S., 5 Cl. Ct. 662, 728 (1984). Such a non-critical delay may affect the completion of certain activities, but does not affect the completion date of the entire project. In order for a delay to provide the basis for a claim for additional time or money, the delay must impact critical path activities on the project schedule.
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Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
Determining the Cause of the Loss from a Named Windstorm when there is Water Damage - New Jersey
March 23, 2020 —
Anna M. Perry - Saxe Doernberger & VitaWater damage, while one of the leading causes of loss under a property policy, often results in some of the most complex claims due to the intersection of exclusions, sublimits, and complex wording within the policy. One particularly difficult issue is whether water damage caused by a storm surge is covered by the flood sublimit, or under the general policy or water limit. In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s (“NJTC v. Lloyd’s”), the New Jersey Appeals Court found that the “flood” sublimit of the policy should not apply as the cause of the loss was a “named windstorm” and not a “flood.”
In NJTC v Lloyd's the court was asked to determine whether a flood sublimit applied to losses sustained during Superstorm Sandy. The court found that although there was “flooding,” the water damage was more closely related to the “named windstorm”, and therefore, the $400 million policy limits should apply. The court focused its analysis on the definitions for “flood” and “named windstorm” and by applying the efficient proximate cause doctrine to determine which would apply.
When reviewing the definitions within the property policies, the court determined that although the loss would qualify under the definition of “flood,” the policy also contained a definition for “named windstorm” which “more specifically encompasses the wind driven water or storm surge associated with a ‘named windstorm’”1. In addition, the policy did not specifically state that “storm surge” associated with a “named windstorm” should be considered a “flood” event and fall under the “flood” sublimit.
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Anna M. Perry, Saxe Doernberger & VitaMs. Perry may be contacted at
amp@sdvlaw.com
