Background Owner of Property Cannot Be Compelled to Arbitrate Construction Defects
November 07, 2012 —
CDJ STAFFIn Truppi v. Pasco Engineering, John Quattro sued Property Management Contractors, Inc. over construction defects in William Truppi’s home. All parties are named in the suit. The California Court of Appeals ruled that Property Management Contractors, Inc. (PMCI) could not compel Mr. Quattro to arbitration.
The background of the case involves two houses built in Encinitas, California by PCMI: one for Mr. Truppi at 560 Neptune, and one for Mr. Quattro at 566 Neptune. Both contracts contained an arbitration provision. Mr. Quattro signed the contract for his residence and Mr. Truppi signed the other. Mr. Quattro then sued PCMI and its principal, William Gregory. Mr. Quattro claimed to be the true contracting party for the 560 Neptune residence and a third party beneficiary of the contract Mr. Truppi signed, and stated that PCMI was aware of this.
PCMI in a demurrer stated that Quattro “had only a ‘prospective beneficial interest in the property upon its eventual sale or lease.’” Mr. Quattro amended his complaint to account for the issues raised by PCMI. The court rejected PCMI’s demurrer to the amended complaint.
Finally, PCMI and Gregory asserted that Quattro was “not the real party in interest” and could not sue. PCMI continues to assert that Quattro lacks standing, but their attorney sent Quattro an e-mail stating, “While my client disputes that you are a party, and that you lack standing to assert the claim, to the extent you do so I believe you are obligated to proceed by way of arbitration.”
The court did not cover the issue of Quattro’s standing in the case, only if he could be compelled to arbitration. The court affirmed the lower court’s finding that Quattro could not be compelled to arbitrate the construction defect claim as neither he nor Gregory signed the contract in an individual capacity. Further, the court noted that PCMI and Gregory “denied the existence of an agreement between themselves and Quattro on the 560 contract,” and cannot compel arbitration on a non-existent agreement. And while non-signatories can, in some situations be compelled to arbitrate, the court found that “these cases are inapplicable because here they seek to have the alleged third party beneficiary (Quattro) compelled by a nonsignatory (Gregory).” The arbitration clause in question “expressly limited its application to persons or entities that signed the 560 contract.”
As Mr. Quattro was not a signatory to that agreement, the court found that he could not be held to its arbitration provision.
Read the court decisionRead the full story...Reprinted courtesy of
San Francisco Museum Nears $610 Million Fundraising Goal
June 26, 2014 —
Dan Levy – BloombergThe biggest museum fundraising campaign in San Francisco history is nearing its $610 million goal two years before the opening of a new wing that will more than double the space for artworks by Andy Warhol, Mark Rothko and David Hockney.
About $570 million, or 94 percent, has been raised by the San Francisco Museum of Modern Art for its 235,000-square-foot (21,800-square-meter) expansion and to add $245 million to the museum’s endowment. The $305 million wing designed by the Snohetta architecture firm is rising behind SFMOMA’s current home, opened two decades ago in the technology-heavy South of Market area, or SOMA.
“In 1995, we were the pioneers when SOMA was pretty run-down, and the tech boom followed us,” Neal Benezra, the museum’s director, said June 20 in a presentation at Bloomberg LP’s San Francisco offices. “Our expansion will solidify the neighborhood as a cultural hub.”
Read the court decisionRead the full story...Reprinted courtesy of
Dan Levy, BloombergMr. Levy may be contacted at
dlevy13@bloomberg.net
“Bee” Careful: Unique Considerations When Negotiating a Bee Storage Lease Agreement
March 27, 2019 —
Colton Addy - Snell & Wilmer Real Estate Litigation BlogAs demand for commercial bees used to pollinate crops (such as almond trees) has grown, so has the demand for facilities to store bees. Entering a lease agreement for the storage of live bees presents some unique issues the parties need to consider when negotiating the lease agreement.
Don’t Bee Short-Sighted: Bees are often transported to different areas depending on the time of year, which means bees are not stored in the same facility all year. The lease agreement will often only provide for the storage of bees during the season when the bees are used for pollination in that particular area, but that does not mean the parties must limit the term of the lease agreement to a single season. The parties may consider entering into a lease agreement for multiple years that only applies during the pollination season each year.
Bee Mindful of the Rent: Whereas the parties usually base rent in a typical commercial lease agreement off of the square footage of space the tenant uses in the premises, it often makes more sense for both parties negotiating a lease for the storage of bees to base the rent on the number of beehives or bee colony boxes stored at the facility. Basing the rent on the number of beehives or bee colony boxes provides the landlord with flexibility in storing the bees of multiple tenants in the same facility, and it can give the tenant flexibility with the number of bees it may need stored at the facility in any given season. With such a rental arrangement, a landlord should consider asking for a commitment from the tenant to deliver at least a certain number of beehives or colonies for storage, and the tenant should consider asking for a commitment from the landlord to reserve space in the facility for at least that same number of beehives or colonies as the tenant is giving a commitment for. Additionally, the parties will need to determine when rent will be paid. In a general commercial lease agreement, rent is usually paid monthly. With a bee storage lease agreement, however, a landlord may want to require the tenant to pay all of the rent for the season upon delivery of the bees, and the landlord may also want the tenant to pay a percentage of the rent to reserve space in the facility prior to delivery of the bees. This allows the landlord to get an early indication of what space in the facility it will have available in the facility for other tenants given the somewhat flexible rental arrangement of the parties.
Read the court decisionRead the full story...Reprinted courtesy of
Colton Addy, Snell & WilmerMr. Addy may be contacted at
caddy@swlaw.com
New Jersey Construction Company Owner and Employees Arrested for Fraud
December 04, 2013 —
CDJ STAFFFrank Chimento, Jr., the owner of Chimento Construction of Parsippany, New Jersey, and three of his employees, Joseph Carsillo, Frank Chimento III, and Carl J. Corso, were arrested by federal agents. The elder Chimento is accused of falsifying his own income taxes, as well as failing to collect and turn over federal and state payroll taxes. He is additionally charged with falsifying union benefit fund contributions.
The three employees are also accused of filing false income tax statements and also of attempting to defraud the state of New Jersey of unemployment compensation benefits. An additional unnamed conspirator made transactions at multiple financial institutions in order to pay employees directly in cash.
One of the three employees, Mr. Carsillo, worked for the company and received cash payments while maintaining to the New Jersey Department of Labor and Workforce Development that he was unemployed. Mr. Carsillo was receiving $526 per week from the NJDOL-WD in unemployment benefits, starting in 2009. From 2009 through 2011, Mr. Carsillo received $19,988 in unemployment benefits and an additional $351,788 in wages from Chimento.
Read the court decisionRead the full story...Reprinted courtesy of
Haight Brown & Bonesteel Attorneys Named Super Lawyers in 2016
February 16, 2016 —
Haight Brown & Bonesteel LLPHaight is pleased to announce that the following lawyers have been named 2016 California Super Lawyers ®:
William G. Baumgaertner
Bruce Cleeland
Peter A. Dubrawski
Angela S. Haskins
Michael J. Leahy
Michael C. Parme
Jennifer K. Saunders
Additionally, Gregory M. Smith has been named a 2016 Super Lawyers ® Rising Star. Super Lawyers ® is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
Read the court decisionRead the full story...Reprinted courtesy of
Haight Brown & Bonesteel LLP
New York Governor Expected to Sign Legislation Greatly Expanding Recoverable Damages in Wrongful Death Actions
June 20, 2022 —
Nicholas P. Hurzeler - Lewis BrisboisNew York, N.Y. (June 3, 2022) - The New York Senate and Assembly recently passed
Bill S74A, also known as the Grieving Families Act, and it is expected that Governor Hochul will likely sign the bill into law. If passed, the law would significantly expand the damages available in wrongful death actions in a number of ways.
First, Section 1 would amend EPTL section 5-4.1 to extend the statute of limitations to commence a wrongful death action from two years to three years and six months, a significant increase that will permit many more wrongful death cases to go forward.
Second, Section 2 amends EPTL section 5-4.3, to allow recovery for emotional damages if a tortfeasor is found liable for causing a death. The current law only allows recovery of economic damages, such as economic hardship caused by a loss of parental guidance. The old law did not permit recovery of damages for grief, sympathy, and loss of companionship or consortium (see, e.g., Liff v. Schildkrout, 49 N.Y.2d 622 (1980); Bumpurs v. New York City Hous. Auth., 139 A.D.2d 438, 439 (1st Dept. 1988)), but that would change with passage of the new bill.
Read the court decisionRead the full story...Reprinted courtesy of
Nicholas P. Hurzeler, Lewis BrisboisMr. Hurzeler may be contacted at
Nicholas.Hurzeler@lewisbrisbois.com
Uniformity in Florida’s Construction Bond Laws Brings About Fairness for the Industry
August 17, 2020 —
Gary L. Brown - Construction ExecutiveBefore Florida updated its laws for construction bonds, there were some significant differences between how liens and bond claims were litigated. Forms and procedures lacked uniformity that created unnecessary challenges for the construction industry and legal practitioners serving the industry.
Now, more consistency among the laws should benefit contractors, as well as lower-tiered subcontractors and suppliers. Since the updates were instated in October 2019, some of the procedures and rules used for lien enforcement have been extended to bond claims, which may make it easier to resolve differences over payment and performance.
That should come as a relief to local contractors and law firms, as well as to the numerous developers and construction companies based outside of Florida that operate in the state or are considering doing so. Florida is now the number one destination for new residents, especially from high-tax states, according to IRS data. With them come new homes, retail centers, offices, industrial space, roads and other infrastructure in what is now the third-most-populous state in the nation.
Reprinted courtesy of
Gary L. Brown, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Mr. Brown may be contacted at
gbrown@kklaw.com
Delaware District Court Finds CGL Insurer Owes Condo Builder a Duty to Defend Faulty Workmanship Claims — Based on the Subcontractor Exception to the Your Work Exclusion
October 04, 2021 —
Anthony L. Miscioscia & Laura Rossi - White and WilliamsOn September 7, 2021, in one of the few decisions addressing the scope of coverage for faulty workmanship under Delaware law, the Delaware District Court denied an insurer’s motion seeking a declaration that it neither needed to defend nor indemnify an insured-builder under a commercial general liability policy.
In this declaratory judgment action, Pennsylvania National Mutual Casualty Insurance Company v. Zonko Builders, the insurer argued that the ongoing underlying action failed to properly plead an “occurrence” in a case alleging damages to a condominium caused by faulty workmanship involving subcontractors.* Zonko Builders (Zonko) served as the general contractor, supervising subcontractors. The Condominium Association sued Zonko for damages allegedly resulting from design and construction deficiencies. The motion was opposed by the Condominium Association, which cross-moved for partial judgment on the pleadings.
In AE-Newark Associates, L.P. v. CNA Insurance Companies, 2001 Del. Super. LEXIS 370 (Del. Super. Ct. Oct. 2, 2001), the Delaware Superior Court found that an insured was entitled to coverage for damages arising from a faulty roof system installed by a subcontractor on behalf of the insured general contractor.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Laura Rossi, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com
Read the court decisionRead the full story...Reprinted courtesy of
