More Reminders that the Specific Contract Terms Matter
January 24, 2022 —
Christopher G. Hill - Construction Law MusingsIf there is a theme I have pounded upon here at Construction Law Musings in the over 13 years of posting, it is that the specific terms of your construction contracts will make a huge difference. While there have been reminders galore, a case from the Eastern District of Virginia presented another wrinkle on this theme. The wrinkle? A factoring company.
In CJM Financial, Inc. v. Leebcor Services, LLC et. al., the Court examined this scenario (though it went into more detail than I will here): Leebcorp hired a subcontractor, Maston Creek Services to provide certain construction services under two separate contracts. Maston then hired CJM, a factoring company, and assigned CJM its receivables and the right to collect those receivables. We wouldn’t be discussing this case if all had worked out as planned, so you likely anticipate at least some of what came next. The short story is that Matson failed to pay some of its suppliers and Leebcorp exercised its termination rights under those contracts when Matson refused to cure. In the interim, CJM had paid part of certain payment applications to Matson in compliance with the factoring agreement. When Leebcorp failed to pay CJM for Matson’s work, CJM exercised its assigned rights to collect the receivables and sued Leebcorp for breach of contract. In response, Leebcorp counterclaimed for, among other counts including civil conspiracy, breach of contract based on Matson’s failure to perform. CJM moved to dismiss the counterclaims.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Time is of the Essence, Even When the Contract Doesn’t Say So
January 11, 2021 —
Christopher G. Hill - Construction Law MusingsWelcome to 2021! As often happens here at Construction Law Musings, the year starts with a few posts on notable construction law cases that dropped in the past year or so. Not only does this review hopefully help you keep up, but helps me keep up with the latest developments (one of the reasons why I keep blogging).
The first of these cases is Appalachian Power Co. v. Wagman Heavy Civil, Inc. out of the Western District of Virginia federal court. In this case, Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Appeals Court Rules that CGL Policy Doesn’t Cover Subcontractors’ Faulty Work
August 06, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Business Insurance, in J-McDaniel Construction Co. Inc. v. Mid-Continental Casualty Co. et al., an appeals court upheld a lower court ruling that a “construction company's commercial general liability insurance policy does not provide coverage for faulty workmanship or subcontractor negligence.”
“We are not at liberty to disregard the binding law of the state, nor may we substitute our judgment for that of the Arkansas Supreme Court,” said the panel, in affirming the lower court ruling, as quoted in Business Insurance.
Judy Greenwald of Business Insurance pointed out that “[l]ast year, the 6th U.S. Circuit Court of Appeals in Cincinnati held that a subcontractor's allegedly faulty preparation of a building pad, which resulted in subsequent settling and structural damage to the building constructed on top of it, was not an occurrence within the standard coverage language of a CGL policy.”
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Be Mindful Accepting Payment When Amounts Owed Are In Dispute
August 29, 2022 —
Nicholas Korst - Ahlers Cressman & Sleight PLLCAfter completing work on a project, or even during a project, it is not uncommon for some portion of the contract balance and/or a claim to be in dispute. As a contractor or subcontractor, it is important to be careful what is signed (or not signed) upon receipt of any payment both during and after completion of work on a project. One of the most common documents signed related to a receipt of payment is a lien/claim release document. This can be in the form of a conditional, unconditional, progress and/or final release. The language included in the release document is critically important, especially as it pertains to disputed amounts. As a contractor or subcontractor, if there are known disputes related to amounts owing, whether it be contract balance, disputed change order(s), a delay or inefficiency claim, or any other amounts believed to be owed, it is important to include language in the lien release that expressly carves out the disputed amounts. The same should be done for disputes related to extensions of time. This allows the contractor to accept the payment and release rights for the undisputed work, but continue to reserve its right to pursue the amounts in dispute later. If disputed amounts are not carved out, those amounts may effectively be waived and the subcontractor or contractor may lose all rights to recovery.
As a subcontractor in Alaska recently learned, there are potentially other ways a contractor may waive or lose its rights to recover amounts in dispute – without even signing a waiver or release document. In Smallwood Creek, Inc. v. Build Alaska General Contracting, LLC et al., the general contractor sent the subcontractor a check described as “final payment.” The subcontractor believed it was owed more than what the general contractor had sent and refused to accept the check. Months later, the subcontractor deposited the check. The subcontractor reversed course again and attempted to repay the general contractor the amount deposited. The general contractor refused, claiming the subcontractor’s acceptance of payment constituted satisfaction of all amounts owing to the subcontractor.
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Nicholas Korst, Ahlers Cressman & Sleight PLLCMr. Korst may be contacted at
nicholas.korst@acslawyers.com
Engineer TRC Fends Off Lawsuits After Merger
August 17, 2017 —
Scott Van Voorhis - Engineering News-RecordIn the wake of its merger with an investment fund, TRC Cos. has been busy swatting away pesky shareholder lawsuits driven by law firms who specialize in such litigation.
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Scott Van Voorhis, ENRENR may be contacted at
ENR.com@bnpmedia.com
Real Estate & Construction News Roundup (1/24/24) – Long-Term Housing Issues in Hawaii, Underperforming REITs, and Growth in a Subset of the Hotel Sector
February 19, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, commercial real estate’s relationship with technology, towns and cities across the country prevent dollar stores from opening, empty offices and other commercial buildings are reused for housing, and more!
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Pillsbury's Construction & Real Estate Law Team
Discussing Parametric Design with Shajay Bhooshan of Zaha Hadid Architects
May 10, 2017 —
Aarni Heiskanen - AEC Businessobotics, 3D printing, and digital fabrication—these evolving technologies are changing how we design and construct. Looking into the future can surprisingly cause us to rediscover history, as I learned when discussing parametric design with Shajay Bhooshan.
During the AEC Hackathon Munich in April 2017, I became acquainted with Shajay Bhooshan, associate at Zaha Hadid Architects. Shajay showed me designs that were intriguingly reminiscent of natural forms but completely modern in expression. He explained how these lightweight structures had been digitally designed and constructed with minimal use of material. One of the examples he shared was a large shell structure that consisted of aluminium elements that could be assembled and dismantled easily.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
SunEdison Gets Shinsei Bank Funding for Japan Solar Power Plant
March 12, 2015 —
Ehren Goossens – Bloomberg(Bloomberg) -- SunEdison Inc., a U.S. solar developer, got financing from Tokyo-based Shinsei Bank Ltd. for a large-scale project in the country.
The 9.6-megawatt Tarumizu project on the southern Japanese island of Kyushu will power about 3,000 homes, Maryland Heights, Missouri-based SunEdison said Wednesday in a statement. The project is under construction and expected to be completed in September. Financial details weren’t disclosed.
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Ehren Goossens, BloombergMr. Goossens may be contacted at
egoossens1@bloomberg.net