What is a “Force Majeure” Clause? Do I Need one in my Contract? Three Options For Contractors, Subcontractors and Suppliers to Consider
June 20, 2022 —
William L. Porter - Porter Law GroupIn the world of the building and construction industry, the general rules of contracting are fairly simple. A supplier agrees to supply equipment or materials for a specific price and within a certain time frame, does so, and is paid an agreed sum. Likewise, contractors and subcontractors agree to build structures per plans and specifications within certain time frames and are paid accordingly. Pretty simple. But what happens when some outside event makes performance impossible or unduly expensive or substantially delayed? What happens, for example, if a ship is sitting off the coast of Long Beach for three months with equipment ordered for the project and it cannot be unloaded due to a labor shortage? What if government mandates cause factories that build needed equipment to close due to an epidemic or pandemic? What if the supply warehouse holding the equipment until it is ready for installation unexpectedly burns to the ground? What if a Russian missile blows up the factory in Ukraine where the intended equipment is being manufactured? What happens then? Who bears the financial consequence?
A properly constructed “force majeure” clause may provide the answer to these questions. The Marriam-Webster Dictionary defines “force majeure” as a literal translation from the French meaning “a superior or irresistible force.” It further defines the term as “an event or effect that cannot be reasonably anticipated or controlled.” The Oxford Dictionary defines force majeure as “unexpected circumstances, such as a war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract.”
Read the court decisionRead the full story...Reprinted courtesy of
William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
In Construction Your Contract May Not Always Preclude a Negligence Claim
March 30, 2016 —
Christopher G. Hill – Construction Law MusingsHere at Construction Law Musings I have discussed the interaction of the so called “economic loss rule,” construction contracts and tort claims on numerous occasions. The general rule is that where a duty to perform in a certain way arises from the contract, the Virginia courts will not allow a plaintiff to turn a contract claim into a tort claim such as fraud or negligence.
Read the court decisionRead the full story...Reprinted courtesy of
Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Seattle’s Audacious Aquarium Throws Builders Swerves, Curves, Twists and Turns
January 08, 2024 —
Nadine M. Post - Engineering News-RecordPatrick Nation describes the reinforcing steel for the main tank of the 50,000-sq-ft Seattle Aquarium Ocean Pavilion as a “monster” job for CMC Rebar. In his mind, it was like bending 496 tons of bars “on a golf ball.” In reality, the operation was more like weaving a giant steel basket. Ironworkers had to painstakingly hand-thread the reinforcing steel for the doubly curved and slanted concrete walls of the 350,000-gallon saltwater exhibit—one bar at a time—to create the dense latticework for the 41-ft-tall basket.
Reprinted courtesy of
Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
The “Unavailability Exception” is Unavailable to Policyholders, According to New York Court of Appeals
September 10, 2018 —
William S. Bennett & Warsame Y. Hassan - Saxe Doernberger & Vita, P.C.The New York Court of Appeals recently upheld a prior appellate division decision finding that policyholders facing environmental claims, spanning multiple years, cannot force their insurers partially on the risk to provide coverage for years where the insurers did not issue policies, even though pollution insurance was unavailable in the marketplace.
In Keyspan Gas E. Corp. v. Munich Reins. Am., Keyspan Gas East Corporation (“Keyspan”) argued other insurers should cover the period when pollution property insurance was unavailable in the marketplace, according to their pro-rata share of coverage. 31 N.Y.3d 51 (2018). In a unanimous decision, the Court emphasized the Appellate Division’s prior ruling that stated, “spreading risk should not by itself serve as a legal basis for providing free insurance to an insured.”
Read the court decisionRead the full story...Reprinted courtesy of
William S. Bennett, Saxe Doernberger & Vita, P.C.Mr. Bennett may be contacted at
wsb@sdvlaw.com
Association Insurance Company v. Carbondale Glen Lot E-8, LLC: Federal Court Reaffirms That There Is No Duty to Defend or Indemnify A Builder For Defective Construction Work
December 20, 2017 —
David M McLain - Colorado Construction Litigation BlogIn a case that squarely confronts the juxtaposition of an insurer’s duty to defend or indemnify its insured for construction related defects, the United States District Court for the District of Colorado recently granted an insurer’s motion for summary judgment on both matters against a construction subrogee, in Ass’n Ins. Co. v. Carbondale Glen Lot E-8, LLC, No. 15-cv-02025-RPM, 2016 WL 9735743, at *1 (D. Colo. Oct. 10. 2017).
Mountainview Construction Services, LLC (“MCS”) served as the general contractor for the construction of a residence on a lot owned by Glen Lot E-8, LLC (“E-8”). MCS took out a Commercial General Liability Policy (“Policy”) with Association Insurance Company (“AIC”) that provided coverage to MCS for the relevant time period for the construction of the residence. E-8 then asserted a series of claims against MCS, based on the allegation that MCS and its subcontractors defectively constructed the home by, among other things, building the residence two feet too high in violation of applicable codes. E-8 also argued that MCS and its subcontractors made significant alterations and/or deviations from the original project specifications without obtaining E-8’s consent or approval from relevant authorities. MCS tendered the claim to AIC for defense and indemnity. In turn, AIC declined coverage on the argument that the Policy precluded any coverage for defective work MCS may have performed on the project, absent damage to person or other property.
Read the court decisionRead the full story...Reprinted courtesy of
David M McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Anatomy of a Construction Dispute- A Wrap Up
November 15, 2022 —
Christopher G. Hill - Construction Law MusingsOver the past four weeks, I’ve “mused” on the “stages” of a construction dispute. What started as a kernel of thought in my mind turned into what has seemed to be a popular set of four posts that I hope were both informative and interesting. Because of the great feedback I’ve gotten, I thought that I’d consolidate the posts into one so that my readers (thank you, by the way) will have them all in one place. Here they are:
The Anatomy of a Construction Dispute- The Claim– This post discussed the steps for setting out a claim under your construction contract and the steps to lay the groundwork should you need to move forward with a more formal means of collection.
The Anatomy of a Construction Dispute Stage 2- Increase the Heat– This post discussed various methods to increase the heat on the party with whom you have a claim prior to litigation or arbitration.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Florida Adopts Less Stringent Summary Judgment Standard
January 25, 2021 —
John A. Rine & Sarah Hock - Lewis BrisboisOn New Year’s Eve, Florida’s Supreme Court issued an amendment to essentially apply the federal summary judgment standard to cases in Florida state courts starting on May 1, 2021. See In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20 1490 (Fla. Dec. 31, 2020) (per curiam). This change brings Florida in line with the majority of states (38).
Summary judgment is easier to obtain under the federal standard. A moving party need only show that the opposing party lacks the evidence to support its case at trial. Under the soon-to-be obsolete Florida standard, however, moving parties had to entirely “disprove the nonmovant’s theory of the case in order to eliminate any issue of fact." See id. at 3. The nonmoving party could defeat a summary judgment motion by showing that there was a slight doubt on any material fact. See id. at 4-5.
This change is good news for defendants and their insurers. With summary judgment easier to obtain, weak claims can be defended prior to trial. Claims may be resolved more quickly and economically. The threat of summary judgment also gives defendants powerful leverage in settlement discussions. The shift may also reduce the backlog of cases accumulated during the suspension of jury trials over the past summer.
Reprinted courtesy of
John A. Rine, Lewis Brisbois and
Sarah Hock, Lewis Brisbois
Mr. Rine may be contacted at John.Rine@lewisbrisbois.com
Ms. Hock may be contacted at Sarah.Hock@lewisbrisbois.com
Read the court decisionRead the full story...Reprinted courtesy of
Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment
November 19, 2021 —
Bradley T. Guldalian - Traub LiebermanOn September 14, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment on behalf of a City which operated a park containing a natural bathing spring in Sarasota County, Florida. The underlying loss occurred when the Plaintiff went to the park, entered the spring without incident, swam for more than an hour, then exited the spring and was returning to the area where she had stored her belongings when she slipped and fell on mud and grass, sustaining an open angulated fracture of her right tibia and fibula. The Plaintiff was rushed to the hospital where she underwent open reduction, internal fixation surgery on her right leg which consisted of implantation of a metal rod into the medullary cavity of her tibia that was secured by two proximal and two distal interlocking screws. She was in the hospital for four days. Upon discharge, the Plaintiff was placed in a walking boot and confined to a wheelchair for several months. The Plaintiff incurred nearly $100,000 in medical expenses. The Plaintiff filed a premises liability action against the City claiming it failed to maintain its premises in a reasonably safe condition. The Plaintiff also alleged that the City failed to warn her that the area where she had stored her belongings had become saturated and slippery proximately causing her fall and resulting injuries.
After the close of discovery, Mr. Guldalian filed a Motion for Summary Judgment on behalf of the City arguing the wet grass and mud upon which the Plaintiff fell and injured herself was a byproduct of patrons going in and out of the water and walking to and from the area where they stored their belongings, was open and obvious, and did not constitute a dangerous condition as a matter of law. Citing to case law from the Florida Supreme Court which held that it is common knowledge that walks adjacent to, leading to, or surrounding a bathing area generally have water constantly thrown upon them and are in a slippery condition, as well as deposition testimony from the Plaintiff confirming she had been swimming at the spring for the past eighteen plus years and was “very familiar” with the park, the spring, and the area where she normally stored her belongings, Mr. Guldalian argued that some injury-causing conditions, like wet grass and mud surrounding a swimming area, are simply so open and so obvious that they cannot be held, as a matter of law, to give rise to liability as dangerous conditions.
Read the court decisionRead the full story...Reprinted courtesy of
Bradley T. Guldalian, Traub LiebermanMr. Guldalian may be contacted at
bguldalian@tlsslaw.com
