Georgia Supreme Court Limits Damages Under Georgia Computer Systems Protection Act
March 01, 2017 —
Chadd Reynolds – Autry, Hanrahan, Hall & Cook, LLPOn January 27, 2017, the Supreme Court of Georgia issued a decision determining whether the Georgia Computer Systems Protection Act (“GCSPA”) provides for punitive damages. While not directly related to construction, the GCSPA can be a potential mechanism for asserting claims against former employees that use company information stored in computers.
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Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.com
Watch Your Step – Playing Golf on an Outdoor Course Necessarily Encompasses Risk of Encountering Irregularities in the Ground Surface
May 08, 2023 —
Kaitlyn A. Jensen & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPOn April 27, 2023, the First District Court of Appeal issued an opinion in Walter Wellsfry, et al. v. Ocean Colony Partners, LLC (A165175, April 27, 2023) affirming summary judgment for a golf course owner on the grounds that the injured golfer’s lawsuit was barred by the primary assumption of risk doctrine. In doing so, the Court of Appeal found that outdoor golfers assume the risks associated with the topographical features of the course, including the risk of stepping on an inconspicuous tree root.
Recreational golfer Walter Wellsfry was walking from a tee box back to his golf cart when he allegedly stepped on a small tree root concealed by grass, causing him to fall into his golf cart in immediate pain. The ground consisted of mixed terrain, including a combination of grass, dirt, and sand. The tree root was estimated to be approximately 1.5 inches high by 1.5 inches wide. Believing he may have only sprained an ankle, Wellsfry continued the course and reported the incident to management. He later sued the golf course owner Ocean Colony Partners for negligence, claiming that the tree root was a “hidden obstruction” creating an unreasonable risk of harm to anyone who traversed the area.
Reprinted courtesy of
Kaitlyn A. Jensen, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Jensen may be contacted at kjensen@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Notice of Completion Determines Mechanics Lien Deadline
August 13, 2019 —
William L. Porter - Porter Law GroupThe California Mechanics Lien is one of the most valuable collection devices available to contractors, subcontractors and suppliers who are unpaid for work performed and materials supplied in relation to a California Private Works project. The mechanics lien allows the claimant to sell the property where the work was performed in order to obtain payment. The process starts with the recording of a mechanics lien in the office of the County Recorder where the property in question is located. As noted below, certain deadlines must be met.
Know Your Mechanics Lien Filing Deadlines Generally
Working within deadlines is absolutely crucial to preserving mechanics lien rights under California law. The deadlines differ, depending on whether you are a ”direct” contractor, also known as “original” or “prime” contractor (one who contracts directly with the property owner) or a subcontractor or material supplier. The primary differences are that, the direct contractor is only required to serve the “Preliminary Notice” on the Construction Lender (Civil Code section 8200-8216), whereas the subcontractor and material supplier must serve not only the Construction Lender, but also the Owner and Direct Contractor (see Civil Code section 8200(e)). Another difference is that a direct contractor has a longer period of time in which to record a mechanics lien after a valid “notice of completion” or a “notice of cessation” has been recorded (Civil Code sections 8180-8190), (60 days for original contractors as compared to 30 days for subcontractors and suppliers – See Civil Code sections 8412 and 8414). A further general description of the rules is as follows:
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
A Homeowner’s Subsequent Action is Barred as a Matter of Law by way of a Prior “Right to Repair Act” Claim Resolved by Cash Settlement for Waiver of all Known or Unknown Claims
February 26, 2015 —
Richard H. Glucksman, Esq., Jon A. Turigliatto, Esq., and David A. Napper, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinDavid Belasco v. Gary Loren Wells et al. (2015) B254525
OVERVIEW
In a decision published on February 17, 2015, the Second District Court of Appeal made clear that settlement agreements containing waivers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld. In brief, the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.
DISCUSSION
Plaintiff and Appellant, David Belasco ("Belasco"), purchased a newly construction home in Manhattan Beach from builder Gary Loren Wells ("Wells"). Two years after purchasing the property, Belasco filed a Complaint for construction defects, which eventually resulted in settlement between the parties. The settlement agreement included a California Civil Code Section 1524 waiver of all known or unknown claims with the word "claims" defined in part as “any and all known and unknown construction defects." Six years later in 2012, Belasco filed a Complaint alleging a claim, amongst others, that the defective and leaky roof breached the statutory warranty on new construction under California Civil Code section 896 ("Right to Repair Act").
Relying on San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, Wells and Wells' surety, American Contractors Indemnity Company (collectively "Wells"), filed a motion for summary judgment contending that the 2012 action was barred by the settlement of Belasco’s prior Complaint against Wells for construction defects to his home. When the trial court ruled in favor of Wells, Belasco appealed. Belasco, a patent attorney, made the following contentions:(1) the general release and section 1542 wavier in the settlement agreement for patent construction defects is not a "reasonable release" of a subsequent claim for latent construction defects within the meaning of section 929 and the “Right to Repair” Act; (2) a reasonable release can only apply to a "particular violation" and not to a latest defect under the language of section945.5, subdivision (f), and the settlement was too vague to be valid because it does not reference a "particular violation;" (3) section 932 of the California Civil Code specifically authorizes an action on "[s]subsequently discovered claims of unmet standards;" (4) public policy prohibits use of a general release and section 1542 waiver to bar a subsequent claim for latent residential construction defects; and (5) a genuine issue of material fact exists concerning Belasco's fraud and negligence claims that would have voided the settlement pursuant to section 1668.
Pursuant to the "Right to Repair Act" Section 929 subsection (a), a builder can make a cash offer in lieu of a repair and the homeowner is free to accept or reject such offer. Section 929subsection (b) goes on to state that
"[t]he builder may obtain a reasonable release in exchange for the cash payment. The builder may negotiate the terms and conditions of any reasonable release in terms of scope and consideration in conjunction with a cash payment under this chapter."
The Second District Court of Appeal ruled that the prior cash settlement, with a release and section 1524 wavier, was a "reasonable release" under the language of California Civil Code Section 929.
On multiple occasions, the Court noted that Belasco is an attorney and was represented by an attorney during the negotiation of the settlement agreement. By executing the agreement with express language regarding what claims were to be release, Belasco released Wells of "any and all claims" due to "any and all known and unknown construction defects." The Court reasoned that because Belasco is an attorney in his own right, he should have understood the import of the Section 1542 waiver and had the opportunity to reject or revise the settlement agreement prior to binding himself to it. The Court further found that the agreement "could not have been more clear" regarding the waiver of all unknown and known construction defect claims and therefore was not vague. Belasco's additional contentions were found to be without merit because Belasco availed himself of the statutory remedy of a cash settlement in lieu of repairs and voluntarily entered into a negotiated settlement agreement. Lastly, Belasco failed to present any evidence regarding his misrepresentation claim.
When a homeowner files a "Right to Repair Act" claim, often it seems that only two options exist: either repair the alleged defects or go to court. However, Belasco is a reminder to builders that the "Right to Repair Act" does offer an avenue for settlement. The Second District Court of Appeal presented a clear, unqualified opinion regarding the validity and enforceability of settlement agreements releasing all known or unknown construction defects in a single family home case. The Court will hold parties to the settlements they agree to. This is especially so when one of the parties is an attorney and provides deposition testimony expressly acknowledging that he understood the scope of the agreement. Attorneys for builders should always include a waiver of all known and unknown claims, which pursuant to Belasco and San Diego Hospice, will ensure that any future claims at the property will be effectively barred by the terms of the settlement agreement.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Jon A. Turigliatto and
David A. Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Las Vegas HOA Case Defense Attorney Alleges Misconduct by Justice Department
November 05, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to the Las Vegas Review-Journal, "Daniel Albregts, who represents Benzer, filed court papers accusing Justice Department lawyers of misconduct that allowed the newspaper to obtain what are now sealed FBI and Las Vegas police reports of the failed negotiations in the summer of 2011." Albregts claimed that "prosecutors promised lawyers for Benzer’s co-defendant, attorney Keith Gregory, that they would not object if the lawyers filed reports of the negotiations under seal in a related matter in September, but then turned around in court and told a federal judge the reports should be made public."
The investigative reports had been sealed, however, "after prosecutors argued to make them public, U.S. Magistrate Judge George Foley Jr. ordered them unsealed." The reports were sealed again two days later, but the media (including the Las Vegas Review-Journal) obtained the documents while they were public.
“This conduct, when viewed in the light of the ceaseless and inflammatory reporting, particularly with regard to this defendant, is the kind of conduct which can only be remedied through dismissal,” Albregts wrote, as quoted in the Las Vegas-Review Journal.
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Home Buyer May Be Third Party Beneficiary of Property Policy
July 19, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe Oklahoma Supreme Court reversed the trial court's grant of summary judgment to the insurer, finding that the purchaser may have third party beneficiary rights under the seller's property policy. Hensley v. State Farm Fire & Cas. Co., 2017 Okla. LEXIS 59 (June 20, 2017).
In May 2000, Hensley sold his property and a mobile home located thereon to Douglas using a contract for deed. The contract for deed required Douglas to keep the premises insured, and the monthly payments made by Douglas to Hensley included the premiums. Hensley had a policy with State Farm on the property. Hensley continued to make the premium payments and the policy continued to be renewed. Further, State Farm was informed of the change in the property's status.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Court of Appeal Finds Coverage for Injured Worker Despite Contractor's Exclusion
August 05, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe California Court of Appeal affirmed the trial court's finding that the policy covered a worker's injuries despite the Contractor's Exclusion. Cal. Spec. Insulation . Allied Work Surplus Lines, Ins. Co., 2024 Cal. App. LEXIS 317 (Cal. Ct. App. May 17, 2024).
Air Control Systems, Inc. was retained by a property owner to perform improvement work on a building. Air Control retained California Specialty Insulation, Inc. (CSI) to install duct insulation. Jason Standiford, an Air Control employee, sure CSI, asserting negligence for injuries he suffered when he fell 16 to 20 feet after. A CSI employee drove a scissor lift into a ladder he was standing on.
CSI was insured through a commercial general liability policy from Allied World. The policy included an endorsement titled "Bodily Injury to Any Employee or Temporary Worker of Contractors Exclusion." The Contractor Exclusion state the policy did not apply to "'Bodily injury' . . . to any 'employee' or 'ten,poary work' of any contractor or subcontractor arising out of in or the course of the rendering or performing services of any kind or nature by such contractor or subcontractor." Neither the endorsement nor the policy defined the term "contractor."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Practical Distinction Between Anticipatory Breach and Repudiation and How to Deal with Both on Construction Projects
June 10, 2024 —
Devon Griger - ConsensusDocsWhen a multilevel construction project is underway and a contractor or subcontractor isn’t performing as expected, it can be difficult to know how to address the low performance without putting the parties’ contract and good working relationship at risk. However, there may come a time when poor performance lapses into a something much worse: an anticipatory breach or repudiation of the subject contract.
Imagine Scenario One: You are a general contractor managing a large-scale construction project and one of your subcontractors is falling behind on their work. The project manager for the subcontractor calls you and says, “Look, I don’t think we’re going to be able to hit our next milestone, and probably not the next one after that.” A conversation like this would generally trigger concern for most general contractors, but it would not necessarily invoke panic. These types of delay conversations are not uncommon on large scale projects.
Compare that example, however, with Scenario Two, where the subcontractor instead says, “We received an offer to work another job for much more money, so we’re leaving the project site today and will not be returning.” This is obviously different (and potentially worse) than Scenario One, and likely cause for much greater concern.
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Devon Griger, Jones WalkerMs. Griger may be contacted at
dgriger@joneswalker.com
