Architect, Engineer, and Design Professional Liens in California: A Different Animal than the Mechanics’ Lien
August 15, 2022 —
William L. Porter - Porter Law GroupMost in the construction industry are familiar with the rules governing California mechanics’ liens. They know that the Preliminary Notice of Civil Code Section 8034 and 8200-8216 is an important foundational prerequisite document and that the deadline to record a mechanics’ lien is generally triggered by events occurring at the end of construction, including completion of the work of improvement and/or the recording of the notice of completion or notice of cessation. Most of these rules are found in California Civil Code sections 8160-8494.
While architects, engineers and other design professionals are certainly entitled to pursue a mechanics’ lien at the end of a construction project when they are unpaid for their work, unless they also consider the remedy available to them under the California “design professional lien,” they are missing a powerful opportunity to preserve the right to payment only available to architects, engineers, and design professionals.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
What You Need to Know About Enforcement Actions by the Contractors State License Board
April 15, 2015 —
Garret Murai – California Construction Law BlogI questioned whether to even write this post.
Because, of course, YOU would never find yourself hightailing it out of town with the California Contractor’s State License Board (“CSLB”) sniffing down your tail pipes.
Then again, mistaken identities occur all the time. So, here’s what you need to know if the CSLB mistakes you for one of “those” contractors.
What violations are subject to CSLB enforcement actions?
The CSLB can take enforcement actions based on any one of numerous violations set forth under the California Business and Professions Code (“B&P Code”), including:
1.
B&P Code §7107: Abandonment of a construction project or operation without legal excuse.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Water Leak Covered for First Thirteen Days
April 11, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe Florida Court of Appeals recently held the policy's exclusion for repeated water seepage over a period of fourteen days or more does not exclude loss caused by the seepage for the first thirteen days.
Hicks v. Am. Integrity Ins. Co. of Florida, 2018 Fla. App. LEXIS 2616 (Fla. Ct. App. Feb. 23, 2018). Read the court decision
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Mr. Eyerly may be contacted at te@hawaiilawyer.com
Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 — Beverley BevenFlorez CDJ STAFF
The Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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Issues of Fact Prevent Insurer's Summary Judgment Motion in Collapse Case
January 17, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's effort to dismiss the insured's collapse case by motion for summary judgment failed. Bitters v. Nationwide Gen. Ins. Co., 2021 U.S. Dist. LEXIS 228523 (E.D. Pa. Nov. 30, 2021).
The insured alleged that there was a "sudden and accidental direct physical loss" to his home caused by collapse due to hidden insect damage to the foundation. The insured came home to find the floor of a bedroom dropped down to the cement slab below. He filed a claim with Nationwide, but coverage was denied. Suit was filed and Nationwide moved for summary judgment.
The policy provided coverage for a sudden and accidental collapse caused by hidden insect damage. A building or part of a building was not considered in the state of collapse if it was standing, even if it was in danger of falling low or caving in.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Landmark Montana Supreme Court Decision Series: Trigger and Allocation
January 24, 2022 —
Lorelie S. Masters, Patrick M. McDermott & Rachel E. Hudgins - Hunton Insurance Recovery BlogIn one of the top insurance-coverage decisions of 2021, the Montana Supreme Court at the end of the year handed down a landmark decision adopting the continuous trigger of coverage and “all sums” allocation, finding a duty to defend and ruling that the qualified, or “sudden and accidental” pollution exclusion did not apply. Nat’l Indem. Co. v. State, 499 P.3d 516 (Mont. 2021). The Supreme Court affirmed in part and reserved in part the rulings entered by the trial court, largely upholding a $98,000,000 judgment for the State against its CGL insurer for the policy years 1973 to 1975. The ruling thus helps ensure coverage for the hundreds of claims alleging that the State had failed to warn claimants of the dangers of asbestos exposures to workers in vermiculite mining and milling operations in Libby, Montana, operated by W. R. Grace (the “Libby Mine”).
Representing amicus curiae United Policyholders (“UP”), Hunton Andrews Kurth supported the position of the policyholder, the State of Montana, on the key rulings on trigger of coverage, allocation, and the pollution exclusion, with the court specifically citing to the Hunton brief in adopting all-sums allocation. This first post in our series covering the Montana Supreme Court’s decisions will address the court’s rulings on trigger of coverage and allocation.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth,
Patrick M. McDermott, Hunton Andrews Kurth and
Rachel E. Hudgins, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. McDermott may be contacted at pmcdermott@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
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Municipalities Owe a Duty to Pedestrians Regardless of Whether a Sidewalk Presents an “Open and Obvious” Hazardous Condition. (WA)
February 25, 2014 —
Natasha Khachatourians – Scheer & Zehnder LLP Liability NewsletterIssue: Does a municipality owe a duty to pedestrians to keep sidewalks reasonably safe for their intended use even if the condition of the sidewalk is an open and obvious hazard? YES
Facts: Plaintiff Nanci Millson liked to walk in Lynden, Washington. While plaintiff regularly walked through her neighborhood and knew that various areas of the sidewalk were cracked and lifted, she continued to walk through her neighborhood nonetheless. Plaintiff felt that the sidewalks closer to her neighborhood were in better condition and when she reached an area a block away from her home, she picked up speed even though she was in an area of sidewalk she previously had not walked before. Plaintiff became distracted, tripped on an elevated sidewalk and fell, suffering various injuries.
Plaintiff sued the City of Lynden (“City”) for negligently failing to maintain the sidewalk in a reasonably safe condition. The City argued that the tripping hazard was “open and obvious”, and the trial court granted the City summary judgment. The issue before the Court of Appeals was whether an “open and obvious” condition is a matter of law to be decided by the court.
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Natasha Khachatourians, Scheer & Zehnder LLP Ms. Khachatourians may be contacted at
natashak@scheerlaw.com
Midview Board of Education Lawsuit Over Construction Defect Repairs
February 04, 2014 —
Beverley BevenFlorez-CDJ STAFFMidview Local Schools Board of Education in Grafton, Ohio, “filed a lawsuit asking Lorain County Common Pleas Court to order the Ohio School Facilities Commission to help pay for repairs on three new schools,” according to The Morning Journal. Scott Goggin, Midview’s Superintendent, told The Morning Journal: “Water-stained ceilings and weeping windows in three new elementary schools, built with financial help and cooperation of the OSFC Expedited Local Partnership Program, irritated the district for months.”
“The lawsuit,” as reported by The Morning Journal “claimed other school districts received financial help from the state when correcting repairs to their schools built through the same program.” Furthermore, the lawsuit stated that “OSFC failed to assess the total classroom facilities needs of the school district, and to share the costs of repairing defects.”
The Morning Journal reported, “The lawsuit asks for restitution of the state’s share of correcting the construction defects, the costs of the lawsuit and reasonable attorney’s fees, and further relief the court decides is just and fair.”
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