text: Construction Law - Justia Case Law Summaries http://law.justia.com/summaryfeed/construction-law/ 2017-02-21T04:13:04-08:00 Justia Inc http://www.justia.com/ Justia Law https://justatic.com/v/20170214172127/shared/images/social-media/law.png Copyright 2014 Justia Inc http://law.justia.com/cases/north-dakota/supreme-court/2017/20160145.html Snider v. Dickinson Elks Building, LLC 2017-02-17T07:07:43-08:00 2017-02-17T18:29:31-08:00 Rick Snider and Janan Snider, doing business as RJ Snider Construction ("Snider"), appealed the grant of summary judgment, forfeiting a construction lien against the property that formerly housed the Dickinson Elks Lodge later owned by private investors, the Dickinson Elks Building, LLC ("DEB"), and prohibiting Snider from recording additional liens against the property without performing additional work. The North Dakota Supreme Court was not convinced that perfecting a lien amounted to creating a lien, as argued by the Sniders. As such, the Court concluded that when a Court declares a lien is deemed forfeited or satisfied, the right to the lien for the construction services or materials provided is deemed forfeited, not just the document recording the lien and establishing its priority. The district court correctly interpreted N.D.C.C. 35-27-25 in concluding the statute barred Snider from recording another construction lien against DEB's property for the same work. The district court also correctly concluded Snider forfeited its construction lien created and attached as a matter of law under N.D.C.C. sections 35-27-02 and 35-27-03 when it failed to comply with DEB's demand to enforce the lien. View "Snider v. Dickinson Elks Building, LLC" on Justia Law 2017-02-16 state North Dakota North Dakota Supreme Court Dale V. Sandstrom 20160145 http://law.justia.com/cases/california/court-of-appeal/2017/d070545.html Blanchette v. Super. Ct. 2017-02-10T11:30:27-08:00 2017-02-11T05:35:33-08:00 The issue this case presented for the Court of Appeal's review centered on the notice and time requirements of the Right to Repair Act (the act), Civil Code section 895 et seq. The Court granted petitioner William Blanchette's petition for a writ of mandate and directed that the trial court vacate its order staying proceedings pending Blanchette's compliance with the act. Blanchette's compliance with the act was relieved by virtue of real party GHA Enterprises, Inc.'s (GHA) failure to timely acknowledge receipt of Blanchette's notice of a claim. "Contrary to GHA's argument, the act's goal of promptly resolving claims without resort to litigation cannot be achieved by permitting homebuilders to serve tardy responses to claims or to ignore them entirely." View "Blanchette v. Super. Ct." on Justia Law 2017-02-10 state California California Court of Appeal Patricia D. Benke D070545 http://law.justia.com/cases/new-jersey/supreme-court/2017/a-46-15.html New Jersey v. Bull 2017-01-23T12:03:56-08:00 2017-01-24T05:57:42-08:00 In 1991 and 1992, defendant Rodney Bull was sentenced to two extended-term sentences, the second of which was imposed for crimes that occurred before defendant's first sentencing took place. In 2012, the New Jersey Supreme Court held that the plain language of N.J.S.A.2C:44-5(b)(1) prohibited the imposition of a second discretionary extended-term sentence for an offense committed before entry of the first extended-term sentence. There is no question that defendant's second extended-term sentence would have been illegal under "New Jersey v. Hudson," (209 N.J.513 (2012)). The question this case presented for the Court's review was whether "Hudson" should be applied retroactively. The Court found "Hudson" : "illuminated a longstanding rule of law rather than announce[d] a new one." The Court affirmed the Appellate Division's determination that "Hudson" applied retroactively. Defendant's second extended-term sentence was remanded for re-sentencing. View "New Jersey v. Bull" on Justia Law 2017-01-23 state New Jersey Supreme Court of New Jersey Timpone a-46-15 http://law.justia.com/cases/south-carolina/supreme-court/2017/27698.html Harleysville Group Ins. v. Heritage Communities, Inc. 2017-01-11T07:03:40-08:00 2017-01-11T07:16:57-08:00 The Riverwalk at Arrowhead Country Club and Magnolia North Horizontal Property Regime developments were constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of significant construction problems, including building code violations, structural deficiencies, and significant water-intrusion problems. In 2003, the purchasers filed suit to recover damages for necessary repairs to their homes. Lawsuits were filed by the respective property owners' associations (POAs), which sought actual and punitive damages for the extensive construction defects under theories of negligent construction, breach of fiduciary duty, and breach of warranty. As to the Riverwalk development, individual homeowners also filed a class action to recover damages for the loss of use of their property during the repair period. The defendants in the underlying suits were the related corporate entities that developed and constructed the condominium complexes: Heritage Communities, Inc. (the parent development company), Heritage Magnolia North, Inc. and Heritage Riverwalk, Inc. (the project-specific subsidiary companies for each separate development), and Buildstar Corporation (the general contracting subsidiary that oversaw construction of all Heritage development projects), referred to collectively as "Heritage." The issues presented to the Supreme Court by these cases came from cross-appeals of declaratory judgment actions to determine coverage under Commercial General Liability (CGL) insurance policies issued by Harleysville Group Insurance. The cases arose from separate actions, but were addressed in a single opinion because they involved virtually identical issues regarding insurance coverage for damages. The Special Referee found coverage under the policies was triggered and calculated Harleysville's pro rata portion of the progressive damages based on its time on the risk. After review of the arguments on appeal, the Supreme Court affirmed the findings of the Special Referee in the Magnolia North matter, and affirmed as modified in the Riverwalk matter. View "Harleysville Group Ins. v. Heritage Communities, Inc." on Justia Law 2017-01-11 state South Carolina South Carolina Supreme Court John W. Kittredge 27698 http://law.justia.com/cases/rhode-island/supreme-court/2017/16-39.html A. Salvati Masonry Inc. v. Andreozzi 2017-01-06T08:36:42-08:00 2017-01-06T12:20:24-08:00 This appeal stemmed from a dispute over the construction of a backyard patio at Defendant's property. Defendants, the property owners, hired a general contractor, who contracted with Plaintiff for masonry work. Plaintiff filed suit, asserting that Defendants owed it money beyond that paid to it by the general contractor. At issue during the bench trial was whether Plaintiff was paid to construct Defendants' backyard patio. The trial justice ultimately entered judgment for Defendants. Plaintiff appealed, arguing that the trial justice erred in his factual determinations and credibility assessments. The Supreme Court affirmed, holding that the trial justice neither overlooked nor misconceived material evidence. View "A. Salvati Masonry Inc. v. Andreozzi" on Justia Law 2017-01-06 state Rhode Island Rhode Island Supreme Court Gilbert V. Indeglia 16-39 16-131 http://law.justia.com/cases/tennessee/supreme-court/2016/m2013-02393-sc-r11-cd.html State v. Pruitt 2016-12-30T08:05:02-08:00 2016-12-30T12:37:52-08:00 Defendant was indicted for, inter alia, two counts of first degree premeditated murder. The trial court denied Defendant's motion to suppress evidence seized from his residence, ruling that the Exclusionary Rule Reform Act applied to the case despite ex post facto concerns. The jury then convicted Defendant as charged. The jury sentenced Defendant to life sentences without the possibility of parole for the murders. The court of criminal appeals upheld Defendant's convictions and sentences. At issue before the Supreme Court was whether the Court should modify the Tennessee ex post facto analysis found in Miller v. State in light of Collins v. Youngblood. The Supreme Court affirmed on separate grounds, holding (1) Miller v. State is overruled; (2) the ex post facto clause of the Tennessee Constitution has the same definition and scope as the federal ex post facto clause; (3) the application of the Exclusionary Rule Reform Act to this case was not an ex post facto violation; (4) the trial court did not err in denying Defendant's motion to suppress evidence obtained as a result of a search warrant; and (5) Defendant was not entitled to relief on his remaining issues. View "State v. Pruitt" on Justia Law 2016-12-30 state Tennessee Tennessee Supreme Court Page M2013-02393-SC-R11-CD http://law.justia.com/cases/nevada/supreme-court/2016/69335.html Dykema v. Del Webb Communities, Inc. 2016-12-29T10:10:04-08:00 2016-12-30T08:14:29-08:00 At issue in this case is when a notice of completion has been "issued" for purposes of determining the commencement date under Nev. Rev. Stat. 11.2055(1)(b) for Chapter 11's construction defect statutes of repose. Appellants owned homes developed by Respondent. Approximately ten years after notices of completion of Appellants' residences were signed, notarized, and recorded, Appellant served notices of construction defect on Respondent. Respondent moved to dismiss the claims on the grounds that their claims were untimely under Chapter 11's statutes of repose for construction defect claims. Appellants opposed the motion to dismiss, arguing that the statutes of repose began to run on the date the notices of completion were recorded rather than the dates the notices of completion were signed and notarized. The district court dismissed the claims, concluding that they were time-barred under the ten-year statute of repose in Nev. Rev. Stat. 11.203. The Supreme Court reversed, holding that a notice of completion is "issued" on the date it is recorded, not when it is signed and notarized. View "Dykema v. Del Webb Communities, Inc." on Justia Law 2016-12-29 state Nevada Supreme Court of Nevada James W. Hardesty 69335 http://law.justia.com/cases/california/court-of-appeal/2016/g050759.html Navigators Specialty Ins. Co. v. Moorefield Const. 2016-12-27T15:30:41-08:00 2016-12-28T07:32:05-08:00 Navigators Specialty Insurance Company (Navigators) issued commercial general liability (CGL) insurance policies (the Policies) to Moorefield Construction, Inc. (Moorefield), a licensed general contractor. At issue in this appeal was the meaning, scope, and application of two standard provisions of the Policies. Moorefield appealed the judgment in favor of Navigators, where Navigators sought a declaration of its rights and duties under the Policies. Navigators' lawsuit was corollary to construction defect litigation arising out of the construction of a building to be used as a Best Buy store in Visalia. During the course of litigation, evidence obtained in discovery showed the most likely cause of flooring failure was that flooring tiles had been installed on top of a concrete slab that emitted moisture vapor in excess of specifications. Evidence also showed that Moorefield knew of the results of two tests showing excessive moisture vapor emission from the concrete, yet had directed the flooring subcontractor to install the flooring anyway. Evidence also established the cost to repair the flooring was $377,404. The litigation settled for $1,310,000. On Moorefield's behalf, Navigators contributed its policy limits of $1 million toward the settlement. Moorefield independently contributed an additional $150,000. The remaining $160,000 was made up of contributions from Best Buy Stores, LP (Best Buy), and the defendant subcontractors. In the meantime, Navigators filed this lawsuit seeking a declaration it had no duty under the Policies to defend or indemnify Moorefield. Navigators contended the flooring failure was not a covered occurrence under the Policies because it was not the result of an accident. Following a bench trial, the trial court found there was no covered occurrence under the Policies because Moorefield had directed the flooring subcontractor to install the flooring despite Moorefield's knowledge that moisture vapor emission from the concrete slab exceeded specifications. The trial court found that Moorefield had not met its burden of proving what portion, if any, of the $1 million paid by Navigators came within the supplementary payments provision of the Policies. The trial court also found that Navigators had no duty to make payments under the supplementary payments provision because Moorefield's liability arose from a noncovered claim. The judgment required Moorefield to reimburse $1 million to Navigators. Moorefield's appeal raised two primary issues, one related to the coverage "A" provision of the Policies and the other related to the supplementary payments provision of the Policies. The Court of Appeal found that Navigators had no duty to indemnify Moorefield and was entitled to recoup that portion of the $1 million paid toward settlement that was attributable to damages. The Court also found that Navigators had a duty to compensate Moorefield under the supplementary payments provision of the Policies. That duty was not extinguished by the determination that Navigators had no duty to indemnify. The Court of Appeal therefore affirmed in part, reversed in part, and remanded for a new trial limited to the issue of the amount of the $1 million paid by Navigators that was attributable to damages, not attorney fees and costs of suit under the supplementary payments provision. View "Navigators Specialty Ins. Co. v. Moorefield Const." on Justia Law 2016-12-27 state California California Court of Appeal Richard D. Fybel G050759 http://law.justia.com/cases/iowa/supreme-court/2016/150164.html Dinsdale Construction, LLC v. Lumber Specialties, Ltd. 2016-12-23T06:31:49-08:00 2016-12-23T12:41:28-08:00 Lumber Specialties was hired as a subcontractor on a construction project to provide the truss package and certain engineering services. Dinsdale Construction was hired to supply the labor and building materials on the project. During a visit to the site, an employee of Lumber Specialties supplied false information to the builder regarding the structural integrity of the building. The visit was done was a courtesy to the builder and for the general goodwill of the business. The structure subsequently collapsed due to inadequate temporary bracing of the trusses. Dinsdale had not followed the industry standard temporary bracing plan. Dinsdale Construction brought suit against Lumber Specialties, alleging breach of contract and negligent misrepresentation. The jury returned a verdict for Dinsdale Construction on the negligent misrepresentation claim. The court of appeals affirmed. The Supreme Court vacated the decision of the court of appeals and reversed the district court judgment, holding (1) a defendant who is not acting in its information-giving capacity does not have a duty of care under the negligent misrepresentation tort; and (2) Lumber Specialties' employee's statements were excluded from the imposition of duty under the tort. View "Dinsdale Construction, LLC v. Lumber Specialties, Ltd." on Justia Law 2016-12-23 state Iowa Iowa Supreme Court Mark S. Cady 150164 http://law.justia.com/cases/california/court-of-appeal/2016/h041934.html Advent, Inc. v. National Union Fire Insurance Co. of Pittsburgh 2016-12-06T10:01:10-08:00 2016-12-06T13:07:33-08:00 Advent was the general contractor for the Aspen Village project in Milpitas. Advent subcontracted with Pacific, which subcontracted with Johnson. Advent was covered by a Landmark insurance policy and a Topa excess insurance policy. Johnson was covered by National Union primary and excess policies. Kielty, a Johnson employee, fell down an unguarded stairway shaft at the site and sustained serious injuries. Kielty sued Advent, which tendered its defense to its insurers and to National Union. National Union accepted under a reservation of rights. Kielty settled for $10 million. Various insurers, including Topa and National Union (under its primary policy), contributed to the settlement. National Union did not provide coverage under its excess policy. Advent sought a declaration that it was an "additional insured" under that excess policy. Topa intervened, seeking equitable contribution from National Union, and equitable subrogation. Advent dismissed its complaint with prejudice. Summary judgment was entered against Topa, for National Union. The court of appeal affirmed. While Topa's policy was vague, National Union's excess policy states that coverage will not apply until "the total applicable limits of Scheduled Underlying Insurance have been exhausted by the payment of Loss to which this policy applies and any applicable, Other Insurance have been exhausted by the payment of Loss." View "Advent, Inc. v. National Union Fire Insurance Co. of Pittsburgh" on Justia Law 2016-12-06 state California California Court of Appeal Eugene M. Premo H041934 http://law.justia.com/cases/north-dakota/supreme-court/2016/20160054.html KLE Construction, LLC v. Twalker Development, LLC 2016-12-05T13:03:15-08:00 2016-12-05T16:57:47-08:00 Twalker Development, LLC appealed a judgment granting KLE Construction LLC's claim for unjust enrichment and ordering Twalker to pay $87,958.74 in damages. KLE and Twalker engaged in negotiations for KLE to provide construction services to Twalker in exchange for four lots located in Twalker's development. KLE and Twalker never executed a written contract finalizing the terms of an agreement. KLE began performing construction services on the property, including preliminary dirt work related to clearing and scraping the property. KLE also hired an engineering firm to create plans to subdivide the property for future sales. KLE and Twalker disagreed about certain aspects of the project, and Twalker terminated KLE's services. Twalker continued to develop the property and did not compensate KLE for the services it provided. KLE sued Twalker for breach of contract, unjust enrichment, and forbearance. After a bench trial, the district court dismissed KLE's breach of contract claim, finding KLE failed to establish the existence of a contract. The court dismissed KLE's forbearance claim, stating forbearance was not a separate and distinct claim. The court granted KLE's unjust enrichment claim and found KLE was entitled to $90,857 in damages. The court ordered each party pay the other party's costs and disbursements. A judgment was entered in favor of KLE for $87,958.74. After review, the Supreme Court concluded the district court did not err in granting KLE's unjust enrichment claim and awarding damages. View "KLE Construction, LLC v. Twalker Development, LLC" on Justia Law 2016-12-05 state North Dakota North Dakota Supreme Court Carol Ronning Kapsner 20160054 http://law.justia.com/cases/maine/supreme-court/2016/2016-me-175.html Arundel Valley, LLC v. Branch River Plastics, Inc. 2016-12-01T08:02:25-08:00 2016-12-01T14:05:56-08:00 Arundel Valley, LLC, the developer of a facility for a butter manufacturer, filed a complaint against Branch River Plastics, Inc., a manufacturer and distributor of insulated roofing panels, alleging, inter alia, defects in roofing panels that Branch River had manufactured and supplied to Arundel Valley for a construction project. A jury found in Arundel Valley's favor on its claims that Branch River breached implied warranties by supplying defective roofing panels. Branch River filed a motion for a new trial, which the court denied. The Supreme Judicial Court reversed, holding that the trial court erred in declining to adjudicate whether Branch River had disclaimed implied warranties. Remanded. View "Arundel Valley, LLC v. Branch River Plastics, Inc." on Justia Law 2016-12-01 state Maine Maine Supreme Judicial Court Humphrey 2016 ME 175 http://law.justia.com/cases/federal/appellate-courts/ca6/15-2149/15-2149-2016-11-07.html Great American Insurance Co. v. E.L. Bailey & Co. 2016-11-07T09:30:37-08:00 2016-11-07T12:07:41-08:00 The State of Michigan contracted with E.L. Bailey to construct a prison kitchen. After delays, the parties sued each other for breach of contract. Bailey had obtained surety bonds from Great American Insurance Company (GAIC) and had agreed to assign GAIC the right to settle claims related to the project if Bailey allegedly breached the contract. Exercising that right, GAIC negotiated with the state without Bailey's knowledge, then obtained a declaratory judgment recognizing its right to settle. The Sixth Circuit affirmed, rejecting, for insufficient evidence, a claim that GAIC settled Bailey's claims against the state in bad faith. Although "there can be bad faith without actual dishonesty or fraud," when "the insurer is motivated by selfish purpose or by a desire to protect its own interests at the expense of its insured's interest," "offers of compromise" or "honest errors of judgment are not sufficient to establish bad faith." There was no evidence that GAIC's settlement of Bailey's claims was undertaken with selfish purpose at Bailey's expense. GAIC and Bailey shared an interest in securing the highest settlement possible from the state. Even if GAIC misunderstood Michigan law, leading it to miscalculate its liability and accept a lower settlement, "honest errors of judgment are not sufficient to establish bad faith." View "Great American Insurance Co. v. E.L. Bailey & Co." on Justia Law 2016-11-07 federal U.S. Court of Appeals for the Sixth Circuit Jane Branstetter Stranch 15-2149 http://law.justia.com/cases/georgia/supreme-court/2016/s16a0972.html Veterans Parkway Developers, LLC v. RMW Development Fund II, LLC 2016-11-07T05:31:25-08:00 2016-11-08T04:52:06-08:00 Defendant Veterans Parkway Developers, LLC ("VPD") appealed a Superior Court order granting injunctive relief and requiring an accounting in this suit by RMW Development Fund, II, LLC ("RMW") stemming from VPD's management of Veterans Parkway Apartments, LLC (the "Company"). The order at issue granted RMW an interlocutory injunction: (1) enjoining VPD from using funds in its possession or control to construct a second entrance to an apartment complex in Columbus (the "Property"), constructed and managed by the Company; (2) prohibiting VPD from using funds for any purpose other than the normal day-to-day expenses of the Property; and (3) requiring VPD to submit a monthly report of its expenses to the superior court, with copies to counsel for the parties. RMW filed suit against VPD alleging VPD's breach of contract by its entering into an unauthorized management agreement and thereby paying an unauthorized management fee, and a claim for "promissory estoppel," stemming from VPD's alleged failure to use some of the Company's funds for partial repayment of a development loan; RMW asked for VPD's removal as manager of the Company and for the costs of litigation. Prior to the filing on the complaint, the Company had purchased a 60-foot strip of land for the purpose of creating a second entrance to the Property. At a hearing on the injunction, RMW argued that it could not undo any construction of the second entrance to the Property. VPD countered that RMW was, in reality, concerned about money being spent on the construction of the second entrance instead of being used to repay the loans made by RMW, and that any appropriate redress was monetary damages. Ultimately the injunction was granted and VPD appealed. The Supreme Court found after review of this matter that the trial court's injunction was not supported by the record, and that court abused its discretion in granting the injunction. The Supreme Court reversed the trial court and remanded this matter for further proceedings. View "Veterans Parkway Developers, LLC v. RMW Development Fund II, LLC" on Justia Law 2016-11-07 state Georgia Supreme Court of Georgia P. Harris Hines S16A0972 http://law.justia.com/cases/federal/appellate-courts/ca7/15-1827/15-1827-2016-11-04.html Midwest Fence Corp. v. United States Department of Transportation 2016-11-04T11:30:44-08:00 2016-11-04T11:40:23-08:00 Midwest Fence, which provides guardrails, challenged federal and state programs that offer advantages in highway construction contracting to disadvantaged business enterprises (DBEs). For purposes of federally-funded highway construction, DBEs are small businesses that are owned and managed by "individuals who are both socially and economically disadvantaged," 49 C.F.R. 26.5, primarily racial minorities and women, who have historically faced significant obstacles in the construction industry due to discrimination. States that accept federal highway funding must establish DBE participation goals for federally funded highway projects and must attempt to reach those goals through processes tailored to actual market conditions. Midwest, which is not a DBE, alleged that the DBE programs violated its equal protection rights. The Seventh Circuit affirmed summary judgment in favor of the government-defendants. While DBE programs permit contracting decisions to be made with reference to racial classifications and are subject to strict scrutiny, they serve a compelling government interest and are narrowly tailored to further that interest. Remedying the effects of past or present discrimination can be a compelling governmental interest. The program provides states with ample discretion to tailor their DBE programs to the realities of their own markets and requires the use of race- and gender-neutral measures before turning to race- and gender-conscious ones. View "Midwest Fence Corp. v. United States Department of Transportation" on Justia Law 2016-11-04 federal U.S. Court of Appeals for the Seventh Circuit HAMILTON 15-1827 http://law.justia.com/cases/california/court-of-appeal/2016/a145278.html Department of Transportation v. Presidio Performing Arts Foundation 2016-11-04T10:00:46-08:00 2016-11-04T11:31:39-08:00 The Foundation provides performing arts and social justice programs. Presidio Trust granted the Foundation a lease (through 2013) at below-market rates for Building 1158. The Foundation remodeled at a cost of over $300,000. Building 1158 offered a safe drop-off area for children, adequate parking, and exclusive use of the building. The Foundation's operational revenues increased from $300,000 in 2007 to $464,000 in 2010. In 2009, the California Department of Transportation (Caltrans) began to construct a south access to the Golden Gate Bridge, which required the use of property controlled by Presidio Trust. The Trust agreed to deliver specified property—including Building 1158. Caltrans informed the Foundation it would demolish Building 1158. The Foundation began to search for another location; no comparable space was immediately found. The Foundation cancelled its 2010 summer program and its Annual Benefit. It lost students, donors, staff, and partners. The Foundation vacated Building 1158 in 2011. Caltrans paid $107,000 as just compensation for the Foundation's lost improvements. Weeks after vacating, the Foundation leased space in Building 386, which costs more, offers less functional space, lacks a safe drop-off zone, has less parking, lacks evening public transportation, shares restrooms with a business, and is an historical building that limits configuration of space. The Foundation sought compensation for loss of goodwill. Caltrans denied the claim and sought declaratory relief. The trial court found that, although the Foundation demonstrated it had goodwill before the taking and lost goodwill due to the taking, it did not prove a calculated "quantitative" loss. The court of appeal reversed, finding that an expert's quantification based on a change in cash flow was sufficient for the threshold determination of entitlement to compensation. View "Department of Transportation v. Presidio Performing Arts Foundation" on Justia Law 2016-11-04 state California California Court of Appeal Henry E. Needham, Jr. A145278 http://law.justia.com/cases/virginia/supreme-court/2016/151780.html Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc. 2016-11-03T06:05:03-08:00 2016-11-03T13:29:37-08:00 In 1997, Virginia Polytechnic Institute & State University awarded General Contractor a prime contract for construction work. General Contractor hired Subcontractors to complete portions of the project. Sureties acted as sureties to Subcontractors. After construction was substantially completed, Virginia Tech made final payment to General Contractor in 1999, which made final payment to Subcontractors. All work was concluded in 2000. In 2012, Virginia Tech asserted a claim against General Contractor seeking compensation for the cost of remedying defective workmanship. In 2014, General Contractor settled the claim with Virginia Tech and, the same year, filed this action alleging breach of contract and common law indemnity claims against Subcontractors and breach of contract claims against Sureties. In 2015, the court dismissed the case in its entirety, concluding, as relevant to this appeal, that the statute of limitations barred the breach of contract claims. The Supreme Court affirmed, holding that the statute of limitations had run by the filing of the suit in 2014, and because any breach of Subcontractors occurred at the time of their respective performances, the statute of limitations had similarly run against Sureties. View "Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc." on Justia Law 2016-11-03 state Virginia Supreme Court of Virginia LeRoy F. Millette, Jr. 151780 http://law.justia.com/cases/idaho/supreme-court-civil/2016/43527.html Burns Concrete, Inc v. Teton County 2016-11-01T09:31:54-08:00 2016-11-02T04:55:09-08:00 The issue in this appeal centered on whether a force majeure clause in a written contract between the county and a developer did not apply to the developer's failure to obtain zoning approval in order to construct the cement plant required in the agreement. After review of the contract and the clause at issue here, the Supreme Court held that the clause was broad enough to apply. Accordingly, the Court vacated the district court's judgment and remanded this case for further proceedings. View "Burns Concrete, Inc v. Teton County" on Justia Law 2016-11-01 state Idaho Idaho Supreme Court - Civil Daniel T. Eismann 43527 http://law.justia.com/cases/alabama/supreme-court/2016/1141331.html Hanover Insurance Co. v. Kiva Lodge Condominium Owners' Association, Inc. 2016-10-21T07:00:04-08:00 2016-10-21T07:13:42-08:00 Kiva Lodge Condominium Owners' Association, Inc. ("Kiva Lodge") was an Alabama nonprofit corporation formed for the purpose of administering and maintaining the Kiva Dunes Clubhouse and Condominium ("Kiva Dunes") located in Gulf Shores. In 2009, Kiva Lodge contracted with Hudak & Dawson Construction Co., Inc. ("Hudak") to be the general contractor for the remediation of deficiencies in Kiva Dunes buildings that were allowing water to enter the buildings. Hudak subcontracted the stucco and/or sealant portion of the work to Don Colvin d/b/a Colvin Plastering ("Colvin"). The Hanover Insurance Company ("Hanover"), as surety for Hudak, issued to Kiva Lodge a performance bond ensuring and/or securing the full performance of Hudak's contractual obligations. In September 2012, Kiva Lodge informed Hudak and Colvin of leaks and bubbling in the stucco exterior of the buildings at Kiva Dunes caused by water intrusion. Kiva Lodge alleged that Hudak and Colvin failed to determine and/or disclose the course of the problems and the proper scope of repairs necessary. It also alleged that Hanover breached the terms of its performance bond by failing to promptly remedy the default, complete the work within the scope of the contract in accordance with the terms and conditions, or arrange for payment of an alternative contractor to complete the work. Hanover filed a motion to dismiss Kiva Lodge's claims against Hanover on the ground that, under its performance bond, its claims were time-barred, falling outside of a two-year statute of limitations. In 2015, the circuit court heard arguments concerning Kiva Lodge's motion to compel arbitration, eventually granting the stay and ordering the parties to arbitration. The court also denied Hanover's motion to dismiss. Hudak, Colvin, and Hanover timely appealed the circuit court's order. After review, the Supreme Court found no reversible error in the trial court's order and affirmed. View "Hanover Insurance Co. v. Kiva Lodge Condominium Owners' Association, Inc." on Justia Law 2016-10-21 state Alabama Supreme Court of Alabama Glenn Murdock 1141331 http://law.justia.com/cases/federal/appellate-courts/ca7/16-1294/16-1294-2016-10-20.html Lend Lease (US) Construction, Inc. v. Administrative Employer Services, Inc. 2016-10-20T08:00:52-08:00 2016-10-20T08:23:40-08:00 In 2014, Lend Lease, the construction manager of the Chicago River Point Tower Project, hired Cives as a subcontractor. Cives hired Midwest Steel. Midwest had, years before, hired AES to supply Midwest with additional workers, who were co‐employed by Midwest and AES. Lend Lease entered into a "contractor-controlled insurance program" with Starr Liability with a $500,000 deductible. All subcontractors were to join in the policy. AES had, several years earlier, obtained workers' compensation for its workers from TIC, so that injured AES‐Midwest workers could obtain workers' compensation from either Starr (or Lend Lease under the deductible) or TIC. Four ironworkers, jointly employed by Midwest and AES and performing work for Midwest were injured on the job and sought workers' compensation. The claims exceeded $500,000, so Lend Lease had to pay its full deductible. Starr paid the remaining claims. Lend Lease filed suit against TIC, AES's insurer, and AES, seeking reimbursement of the $500,000. The district court dismissed. The Seventh Circuit affirmed. Lend Lease made a deal with Starr and is bound by it. The court rejected an argument that AES has been unjustly enriched; AES was not obligated to purchase an insurance policy that would cover Lend Lease's deductible. View "Lend Lease (US) Construction, Inc. v. Administrative Employer Services, Inc." on Justia Law 2016-10-20 federal U.S. Court of Appeals for the Seventh Circuit Richard Allen Posner 16-1294 16‐1739 http://law.justia.com/cases/illinois/supreme-court/2016/118984.html Carney v. Union Pacific R.R. Co. 2016-10-20T06:31:37-08:00 2016-10-20T08:54:55-08:00 In 2006, Union Pacific Railroad (UP) invited contractors to bid on the purchase and removal of three abandoned railroad bridges that spanned Chicago streets. Happ's, a scrap contractor, had worked railroads for 25 years recycling steel and railroad ties. Carney (dba Chicago Explosive) had a 20-year business relationship with Happ; the two entered "a handshake agreement" concerning the bid. UP accepted Happ's bid, unaware of the agreement between Happ's and Carney. Removal of the first bridge proceeded without incident. During the demolition of the larger Polk Street Bridge, a crossbeam snapped. The west girder, which was not secured or supported, fell. Plaintiff, standing north of the bridge on a gravel-covered steel plate, slid forward under the falling girder. Plaintiff's legs were severed below his knees. Plaintiff sued UP, alleging negligence in failing to discover and disclose to Happ's or plaintiff the presence of the steel plate and in hiring Happ's. The trial court granted UP summary judgment. The appellate court reversed. The Illinois Supreme Court reinstated summary judgment. UP owed plaintiff no duty. There was nothing in the contract indicating that UP retained control such that Happ's was not entirely free to do the work in its own way, nor was UP's conduct inconsistent with the agreement. Plaintiff was an employee of Carney, not a "bystander." UP did not build the bridge, did not possess the plans for the bridge, did not use the bridge, and had no reason to know that the steel floor plate extended several feet into the roadbed, precluding plaintiff's premises liability claim. View "Carney v. Union Pacific R.R. Co." on Justia Law 2016-10-20 state Illinois Supreme Court of Illinois Mary Jane Theis 118984 http://law.justia.com/cases/federal/appellate-courts/ca7/15-2393/15-2393-2016-10-07.html Schaefer v. Universal Scaffolding & Equip., LLC 2016-10-07T07:30:47-08:00 2016-10-07T13:10:08-08:00 Schaefer's employer, Brand Energy, was erecting scaffolding at a Dynegy power plant. Brand had complete control over the scaffold construction. Brand acquired the scaffold components from Universal, but Dynegy paid for the scaffolding and owned it. Brand workers had difficulties with the Universal components because faulty components would not readily lock. A bar popped loose and struck Schaefer on the head. Schaefer suffered serious injuries. In addition to bringing a workers' compensation claim against Brand, Schaefer sued Universal. Because the piece of scaffolding that hit him was lost, he added claims for negligent spoliation of evidence against Brand and Dynegy. Schaefer also alleged construction negligence and failure to warn against Dynegy. The district court granted summary judgment for defendants, holding that without the missing piece, Schaefer could not prove his product liability claims; that Dynegy was not liable for any defects or negligence; and that Schaefer could not prove the spoliation claims because, without proof that the missing piece was defective, it was not possible to prove that its loss caused any damage. The Seventh Circuit affirmed in part, but reversed as to spoliation. Illinois law does not require a plaintiff to prove that he would have won his case but for the spoliation, it requires only that the plaintiff show a "reasonable probability" of success. Schaefer adduced evidence from which a jury could make this finding: the batch of scaffolding had a large number of defective pieces. View "Schaefer v. Universal Scaffolding & Equip., LLC" on Justia Law 2016-10-07 federal U.S. Court of Appeals for the Seventh Circuit Peterson 15-2393 http://law.justia.com/cases/pennsylvania/supreme-court/2016/28-eap-2015.html Scungio Borst & Assoc. v. 410 Shurs Lane Developers, LLC 2016-09-28T12:04:13-08:00 2016-09-29T05:01:08-08:00 In this appeal, the issue presented for the Supreme Court's review was whether a contractor could maintain an action under the Contractor and Subcontractor Payment Act (CASPA) against a property owner's agents. Beginning in 2005, Appellant Scungio Borst & Associates (SBA) entered into a series of written and oral construction contracts with Appellee 410 Shurs Lane Developers, LLC (410 SLD), which 410 SLD's part-owner and president, Appellee Robert DeBolt, executed on 410 SLD's behalf. Therein, SBA agreed to improve real property owned by 410 SLD in connection with the development of a condominium complex, and did so until November 2006, when SBA's contracts were terminated with approximately $1.5 million in outstanding payments due. SBA requested payment, but 410 SLD, again through DeBolt, refused. Accordingly, SBA sued 410 SLD; its alleged successor corporation, Appellee Kenworth II, LLC; and DeBolt in his personal capacity. SBA asserted, among other claims, violations of CASPA. After careful review, the Supreme Court held that a contractor could not maintain an action under CASPA, and, accordingly, affirmed the order of the Superior Court. View "Scungio Borst & Assoc. v. 410 Shurs Lane Developers, LLC" on Justia Law 2016-09-28 state Pennsylvania Supreme Court of Pennsylvania Debra McCloskey Todd 28 EAP 2015 http://law.justia.com/cases/california/court-of-appeal/2016/d069647.html Regalado v. Callaghan 2016-09-22T11:30:48-08:00 2016-09-22T12:40:33-08:00 Jeffrey Callaghan hired Dunn's Designer Pools (Dunn's), a landscape and pool contractor, to build a pool and spa at his home. Victor Regalado, a Dunn's employee, suffered injuries when he installed a propane fueled pool heater on Callaghan's property. Regalado sued Callaghan for negligence and premises liability. The jury found Callaghan was negligent; the trial court ultimately entered judgment against Callaghan in the amount of approximately $3 million. Callaghan appealed, arguing: (1) the court erred by failing to instruct the jury that a person who hires an independent contractor was not liable for injuries to the contractor's employee unless the hirer's negligent exercise of retained control "affirmatively contributed" to the employee's injury; (2) insufficient evidence supported the jury's verdicts on both premises liability and negligence; (3) Regalado's counsel committed misconduct by urging the jury to base its verdict on protecting the community; (4) the trial court erred by permitting Regalado to recover past wages because Dunn's had continued to pay his salary after the accident; and (5) the jury's award of future medical costs had to be reduced because it was not supported by substantial evidence. Rejecting all of Callaghan's arguments, the Court of Appeals affirmed the judgment. View "Regalado v. Callaghan" on Justia Law 2016-09-22 state California California Court of Appeal Richard D. Huffman D069647 http://law.justia.com/cases/hawaii/supreme-court/2016/scwc-14-0001160-0.html Certified Construction, Inc. v. Crawford 2016-09-20T13:01:44-08:00 2016-09-20T13:42:01-08:00 Certified Construction, Inc. (CCI) submitted a bid proposal on a public works project by the County of Hawaii. The County disqualified CCI's bid on the basis that the project required a C-44 license. CCI filed a bid protest with the County, arguing that nothing in the bid solicitation strictly required a C-44 license. The Office of Administrative Hearings dismissed the protest as untimely, concluding that CCI's protest was a challenge to the contents of the bid solicitation rather than to the disqualification of its bid proposal. The circuit court disagreed and remanded the case for further proceedings. On remand, the hearings officer determined that CCI failed to demonstrate entitlement to relief. The circuit court affirmed. CCI appealed from the circuit court's second order, and the County appealed from the circuit court's first order. The Intermediate Court of Appeals (ICA) concluded that CCI's protest was untimely and that the OAH lacked jurisdiction to consider CCI's protest. The Supreme Court vacated the ICA's judgment on appeal, holding that the ICA erred in concluding that CCI's bid protest challenged the contents of the County's bid solicitation because the protest, in fact, challenged the County's disqualification of CCI's bid proposal. View "Certified Construction, Inc. v. Crawford" on Justia Law 2016-09-20 state Hawaii Supreme Court of Hawaii Richard W. Pollack SCWC-14-0001160 SCWC-14-0001190 http://law.justia.com/cases/north-dakota/supreme-court/2016/20150189.html Taszarek v. Welken 2016-08-31T10:33:43-08:00 2016-08-31T11:12:51-08:00 Brian Welken appealed after a jury returned a verdict in favor of Eugene Taszarek, Marlys Taszarek, Trina Schilling, Steven Taszarek, and Michael Taszarek ("Taszareks") and against Lakeview Excavating, Inc., ("Lakeview") and Welken. Lakeview was a corporation primarily involved in flood control projects, and Welken was Lakeview's president and sole shareholder. In the spring of 2012, German Township in Dickey County solicited bids for road construction projects to repair and raise the grade of a road near the Taszareks' property. Lakeview, acting through Welken, successfully bid and was selected as the contractor for the road projects. Lakeview obtained most of its field rock for the project from area farmers and ranchers with rock piles on their properties. Lakeview arranged with landowners to harvest rocks from their fields and reclaim the ground so it could again be farmed, and landowners allowed Lakeview to remove rock piles. Herb Buerkley owned land adjacent to land owned by the Taszareks, and Buerkley permitted Lakeview to enter his family's property to harvest field rock. While harvesting the rock piles from Buerkley's land, Lakeview's employees crossed into the Taszareks' land and harvested field rock. The Taszareks brought an action against both Lakeview and Welken, asserting claims of intentional trespass, conversion, and unjust enrichment arising from Lakeview's work on the German Township road-raising project. The district court held a jury trial on the Taszareks' trespass and conversion claims against Lakeview and Welken. During trial, the Taszareks' attorney asked the court to instruct the jury on the theory that Lakeview was the "alter ego" of Welken and that Welken should therefore be personally liable for any judgment. Over the objection of Welken's attorney, the court gave an instruction regarding the alter ego doctrine. After review, the Supreme Court concluded Welken failed to preserve whether the district court misapplied the law by allowing the jury to resolve whether Lakeview was the alter ego of Welken. Furthermore, the Court concluded that the trial court erred as a matter of law in inadequately instructing the jury regarding the alter ego doctrine. The Court therefore reversed the judgment and remanded for a new trial. View "Taszarek v. Welken" on Justia Law 2016-08-31 state North Dakota North Dakota Supreme Court Lisa K. Fair McEvers 20150189 http://law.justia.com/cases/montana/supreme-court/2016/da-16-0015.html Mandell v. Bayliss Ward 2016-08-23T15:02:58-08:00 2016-08-23T16:59:43-08:00 Michael Mandell and Bayliss Ward and Bayliss Architects, P.C. (Bayliss) agreed that Bayliss would provide architectural and construction services for Mandell's home. Mandell refused to pay Bayliss's final invoice, and Bayliss filed a construction lien on the property. Mandell initiated this action stating counts of breach of contract, declaratory judgment that the lien was invalid, and quiet title to the property. Bayliss counterclaimed for foreclosure of the construction lien, quantum meruit, and breach of contract. The district court partially granted Mandell's claim for declaratory relief, ruling that because Bayliss failed to obtain a written contract for construction services, the contract was void and the lien for those services was invalid. After a trial, the district court granted relief in quantum meruit and awarded attorney fees to Bayliss. The Supreme Court affirmed in part, reversed in part, and remanded, holding that the district court (1) did not err in granting equitable relief in quantum meruit, despite violation of the statutory requirement that residential construction contracts be in writing; and (2) erred in awarding attorney fees for the quantum meruit claim. Remanded. View "Mandell v. Bayliss Ward" on Justia Law 2016-08-23 state Montana Montana Supreme Court James A. Rice DA 16-0015 http://law.justia.com/cases/missouri/supreme-court/2016/sc94038.html Brentwood Glass Co. v. Pal's Glass Serv., Inc. 2016-08-23T10:03:17-08:00 2016-08-23T12:45:16-08:00 Brentwood Glass filed a petition against the County and several other defendants, asserting, inter alia, a mechanic's lien claim against all defendants for unpaid work on a construction project and an action against St. Louis County for failing to require a public works construction bond mandated by Mo. Rev. Stat. 107.170. Defendants filed a motion for summary judgment on the mechanic's lien claim. The County also asserted it was entitled to summary judgment on the bond claim because section 107.170 did not apply. The circuit court entered judgment in favor of Defendants.The Supreme Court reversed judgment on the mechanic's lien claim and affirmed in all other respects, holding (1) the circuit court erred in granting summary judgment on the lien claim for lack of proof of notice, and genuine issues of material fact existed preventing summary judgment on the lien claim; and (2) judgment was proper on Brentwood Glass's bond claim against the County. View "Brentwood Glass Co. v. Pal's Glass Serv., Inc." on Justia Law 2016-08-23 state Missouri Supreme Court of Missouri Per Curiam SC94038 http://law.justia.com/cases/nebraska/supreme-court/2016/s-15-676.html Malone v. City of Omaha 2016-08-19T05:33:05-08:00 2016-08-19T12:32:40-08:00 In 2011, the City of Omaha enacted an ordinance requiring contractors doing work within the City to obtain a license. Appellant challenged the ordinance on various grounds. As relevant on appeal, Appellant alleged that the passage of the ordinance did not comply with the procedural requirements of the Omaha City Charter, that the ordinance placed an unfair restriction on and monopolized the City's contracting industry, and that the ordinance violated his constitutional rights. The district court granted summary judgment for the City on all but one of Appellant's claims. After a bench trial, the district court ruled in favor of the City, concluding that the City was empowered to enact the ordinance and that the ordinance did not prevent Appellant from working on his own property. The Supreme Court affirmed, holding that the City had the authority to enact the ordinance. View "Malone v. City of Omaha" on Justia Law 2016-08-19 state Nebraska Nebraska Supreme Court Michael G. Heavican S-15-676 http://law.justia.com/cases/california/court-of-appeal/2016/a145734.html Aluma Systems Concrete Constr. of Cal. v. Nibbi Bros., Inc. 2016-08-17T14:30:58-08:00 2016-08-17T14:46:35-08:00 Concrete Construction (Contractor) was sued by employees of Nibbi Concrete, who were injured after a shoring system designed by Contractor collapsed. Subsequently, Contractor sued Employer for indemnification based on a specific provision in the parties' contract. The trial court dismissed, relying on the allegations in the underlying lawsuit that set forth claims only against Contractor and not against Employer. The court of appeal reversed, stating that the allegations in the underlying lawsuit are not determinative of Contractor's claim for indemnity. View "Aluma Systems Concrete Constr. of Cal. v. Nibbi Bros., Inc." on Justia Law 2016-08-17 state California California Court of Appeal Mark B. Simons A145734 http://law.justia.com/cases/north-dakota/supreme-court/2016/20150343.html Snider v. Dickinson Elks Building, LLC 2016-08-17T12:33:51-08:00 2016-08-18T04:08:04-08:00 Dickinson Elks Building, LLC, appealed after the district court forfeited a construction lien filed by Rick and Janan Snider, doing business as RJ Snider Construction, and awarded the Dickinson Elks attorney's fees. In December 2011, Snider contracted with Beaver Brinkman to perform work on real property owned by the Dickinson Elks. Snider recorded a construction lien in January 2013 against the property after it did not get paid for all of its work. In May 2014, the Dickinson Elks served Snider with a demand to start a lawsuit to enforce the lien and record a lis pendens within 30 days of the demand. Snider sued the Dickinson Elks in June 2014, seeking foreclosure of the construction lien and a money judgment. Snider recorded a notice of lis pendens in July 2014. The Dickinson Elks moved for summary judgment, arguing Snider's complaint should have been dismissed because Snider was not a licensed contractor when it started the work on the property. The Dickinson Elks also argued Snider did not have a valid construction lien, because Snider did not record a lis pendens within 30 days of receiving the demand to enforce the lien. The district court granted the motion in part and entered a judgment forfeiting Snider's construction lien because Snider did not record a lis pendens within 30 days of receiving the Dickinson Elks' demand to enforce the lien. After review, the Supreme Court concluded it did not have jurisdiction and dismissed the appeal. View "Snider v. Dickinson Elks Building, LLC" on Justia Law 2016-08-17 state North Dakota North Dakota Supreme Court Dale V. Sandstrom 20150343 http://law.justia.com/cases/minnesota/supreme-court/2016/a15-0484.html Storms, Inc. v. Mathy Constr. Co. 2016-08-17T10:02:30-08:00 2016-08-17T18:14:36-08:00 The Minnesota Department of Transportation (MnDOT) contracted with Mathy Construction Company for a public highway project. Mathy subcontracted with Storms, Inc. for excavation and fill work. After Storms completed its work, MnDOT issued a deductive change order reducing Mathy's contract amount by $327,064 because of errors in the estimated quantities of excavation and fill required for Storms' work. Mathy reduced Storms' subcontract by the same amount. Storms subsequently sued Mathy for the reduction in the subcontract price. The district court granted summary judgment in favor of Storms, concluding that Mathy had breached the subcontract. The court of appeals affirmed. The Supreme Court reversed, holding that Mathy did not breach its subcontract with Storms by issuing a corresponding deductive change order to Storms. View "Storms, Inc. v. Mathy Constr. Co." on Justia Law 2016-08-17 state Minnesota Minnesota Supreme Court David L. Lillehaug A15-0484 http://law.justia.com/cases/federal/appellate-courts/ca7/15-2469/15-2469-2016-08-12.html Rizvi v. Allstate Corp. 2016-08-12T14:00:49-08:00 2016-08-12T14:24:45-08:00 Rizvi and his company, Prime Builders, performed repair work for Alikhan, whose house was damaged in a fire. When the work was completed in 2009, Alikhan paid Rizvi only part of what he owed. Rizvi sued for breach of contract in federal court, invoking diversity jurisdiction under 28 U.S.C. 1332. (Rizvi and Prime are Illinois citizens. Alikhan is a citizen of Texas.) When Alikhan failed to appear, plaintiffs obtained a default judgment, then served a citation to discover assets on Allstate under an Illinois statute that governs supplementary proceedings to assist in collecting on a judgment. Allstate responded that Alikhan had no accounts of any sort with Allstate, had no claims pending with Allstate, and was not owed any insurance payments by Allstate. Plaintiffs then asked the court to order Allstate to remit "outstanding insurance proceeds of $110,926.58" and to impose sanctions, arguing that Allstate had participated in negotiating the repair contract and had made a partial payment to Alikhan in 2008. The court ultimately dismissed the supplemental action. The Seventh Circuit affirmed. Allstate is a citizen of Illinois, the supplemental proceeding against Allstate was sufficiently independent of the underlying case as to require its own basis for subject matter jurisdiction. View "Rizvi v. Allstate Corp." on Justia Law 2016-08-12 federal U.S. Court of Appeals for the Seventh Circuit HAMILTON 15-2469 http://law.justia.com/cases/california/court-of-appeal/2016/f070067.html Watson Bowman Acme Corp. v. RGW Construction 2016-08-09T15:30:57-08:00 2016-08-09T16:06:31-08:00 RGW entered into a contract with Watson for the delivery of 146 sealed expansion joints for use on the Caltrans project for the construction of Highway 99. Watson filed a breach of contract action, contending it was entitled to an adjustment of the price on RGW's original purchase order because the items ordered were changed. The trial court concluded that RGW's purchase order was ambiguous and allowed the jury to decide what the contract meant and what price was appropriate. The jury decided in favor of Watson, finding the amount of the subject agreement was $605,990. The jury awarded Watson damages of $383,032. The court concluded that the trial court correctly (1) determined that RGW's purchase order was ambiguous and (2) allowed the jury to evaluate the conflicting parol evidence before deciding the meaning of the contract. The court also concluded that the price adjustment owed to Watson for the change in the order was sufficiently certain to meet the statutory requirements for an award of prejudgment interest. Accordingly, the court affirmed the judgment, except for its failure to award prejudgment interest to Watson. View "Watson Bowman Acme Corp. v. RGW Construction" on Justia Law 2016-08-09 state California California Court of Appeal Donald R. Franson, Jr. F070067 http://law.justia.com/cases/california/court-of-appeal/2016/e064710.html Pulte Homes Corp. v. Williams Mechanical 2016-08-09T14:30:58-08:00 2016-08-10T11:28:25-08:00 Pulte Homes Corporation sued Williams Mechanical, Inc. for defective performance of a plumbing subcontract. Even before the action was filed, however, Williams was defunct; first, it was suspended by the Secretary of State, and thereafter, it dissolved voluntarily. Pulte served Williams though an attorney whom Williams had designated as its agent for service of process. The attorney, however, did not notify Williams of the action; he also did not identify or notify Williams's liability insurer. Williams failed to respond to the complaint, and Pulte obtained a default judgment. Pulte then notified Williams's liability insurer of the default judgment. About four and a half months later, the insurer retained counsel to represent Williams, and Williams' counsel filed a motion to set aside the default judgment. The trial court granted the motion. Pulte appealed, arguing (1) Williams lacked the capacity to defend this action because it had been suspended; and (2) Williams failed to establish that it was entitled to relief from the default and default judgment. After review, the Court of Appeal held the trial court abused its discretion by ruling that Williams was entitled to relief. Accordingly, the Court did not address whether Williams had the capacity to defend. View "Pulte Homes Corp. v. Williams Mechanical" on Justia Law 2016-08-09 state California California Court of Appeal Manuel A. Ramirez E064710 http://law.justia.com/cases/new-jersey/supreme-court/2016/a-1314-15.html CypressPoint Condominium Association, Inc. v. Adria Towers, L.L.C., et al. 2016-08-05T11:33:10-08:00 2016-08-06T04:32:39-08:00 This dispute arose from the construction of Cypress Point, a luxury condominium complex in Hoboken. Co-defendants Adria Towers, LLC, Metro Homes, LLC, and Commerce Construction Management, LLC (collectively, the developer) served as the project's developer and general contractor, and subcontractors carried out most of the work. During construction, the developer obtained four CGL policies from Evanston Insurance Company, covering a four-year period, and three from Crum & Forster Specialty Insurance Company, covering a subsequent three-year period (collectively, the policies). In this appeal, issue before the Supreme Court was whether rain water damage caused by a subcontractor's faulty workmanship constituted property damage and an occurrence under the developer's commercial general liability (CGL) insurance policy. In a published decision, the Appellate Division reversed, holding that, under the plain language of the CGL policies, the unintended and unexpected consequential damages caused by the subcontractors faulty workmanship constituted property damage and an occurrence. The Supreme Court agreed and affirmed, finding that the consequential damages caused by the subcontractors faulty workmanship constituted property damage, and the event resulting in that damage water from rain flowing into the interior of the property due to the subcontractors faulty workmanship was an occurrence under the plain language of the CGL policies at issue here. View "CypressPoint Condominium Association, Inc. v. Adria Towers, L.L.C., et al." on Justia Law 2016-08-04 state New Jersey Supreme Court of New Jersey Solomon a-1314-15 http://law.justia.com/cases/minnesota/supreme-court/2016/a14-1472.html Ryan Contracting Co. v. O'Neill & Murphy, LLP 2016-08-04T06:52:30-08:00 2016-08-04T17:45:19-08:00 Meagher & Geer, PLLP (MG) represented Ryan Contracting Company (Ryan) in an action to foreclose on several mechanic's liens. Later, represented by O'Neill & Murphy, LLP (O'Neill), Ryan brought suit against MG for legal malpractice arising out of MG's allegedly defective filing and foreclosure of Ryan's mechanic's liens. The district court granted MG's motion to dismiss on the ground that O'Neill failed to timely file expert witness affidavits. Ryan then brought suit against O'Neill for legal malpractice arising out of O'Neill's representation of Ryan in the MG lawsuit. The district court granted summary judgment for O'Neill, concluding that the mechanic's liens were not perfected, not because of MG's conduct, but because of Ryan's error in not filing the pre-lien notice to the property owner required by Minn. Stat. 514.011. The court of appeals reversed in part, concluding that Ryan was exempt from the pre-lien notice requirement under section 514.011, and there were genuine issues of fact regarding the other issues. The Supreme Court affirmed as modified, holding that the court of appeals did not err in concluding that Ryan was not required to give pre-lien notice to enforce its mechanic's liens. View "Ryan Contracting Co. v. O'Neill & Murphy, LLP" on Justia Law 2016-08-03 state Minnesota Minnesota Supreme Court Christopher J. Dietzen A14-1472 http://law.justia.com/cases/california/court-of-appeal/2016/a142560.html Findleton v. Coyote Valley Band of Pomo Indians 2016-07-29T09:31:26-08:00 2016-07-29T11:21:10-08:00 The Coyote Valley Band of Pomo Indians and Findleton entered into the Construction Agreement for a gaming facility. In 2008 (10 months later), the Tribe suspended construction because the financial meltdown had adversely affected its ability to secure financing. In 2012, Findleton sought to compel ADR under the Agreement The Tribe asserted that it had not waived its sovereign immunity or consented to suit in the state court and that Findleton's failure to exhaust his tribal administrative remedies deprived the court of jurisdiction. Findleton cited resolutions by the Tribal Council, waiving immunity. The Tribe has a General Council, consisting of all tribal members 18 years or older, and the Tribal Council, an elective body consisting of seven members of the General Council whose powers are more narrowly circumscribed. The Tribe's constitution does not permit the Tribal Council to waive sovereign immunity without the General Council's "consent" and "prior approval." The court of appeal reversed the trial court's dismissal of the action, finding that the Council was authorized to waive the Tribe's immunity and did so in resolutions adopted in 2008 and on June 2, 2007, "in order to attract other individuals and entities to do business with the Tribe." View "Findleton v. Coyote Valley Band of Pomo Indians" on Justia Law 2016-07-29 state California California Court of Appeal Stewart A142560 http://law.justia.com/cases/michigan/supreme-court/2016/150029.html Ronnisch Construction Group, Inc. v. Lofts on the Nine, LLC 2016-07-27T05:00:06-08:00 2016-07-27T10:12:40-08:00 At issue in this case was whether plaintiff, Ronnisch Construction Group (RCG), could seek attorney fees under section 118(2), MCL 570.1118(2), of the Construction Lien Act (CLA) from defendant Lofts on the Nine, LLC (LOTN), given that plaintiff received a favorable arbitration award on its related breach of contract claim but did not obtain a judgment on its construction lien claim. After review, the Michigan Supreme Court held that the trial court could award attorney fees to RCG because RCG was a lien claimant who prevailed in an action to enforce a construction lien through foreclosure. Therefore, the Court affirmed the Court of Appeals and remanded this case back to the trial court for further proceedings. View "Ronnisch Construction Group, Inc. v. Lofts on the Nine, LLC" on Justia Law 2016-07-26 state Michigan Michigan Supreme Court David F. Viviano 150029 http://law.justia.com/cases/missouri/supreme-court/2016/sc94680.html Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist. 2016-07-26T10:02:55-08:00 2016-07-26T13:51:05-08:00 Byrne & Jones Enterprises, Inc. filed an action against Monroe City R-1 School District alleging that it was denied a fair and equal opportunity to compete in the bidding process for a public works contract to build an athletics stadium. The trial court dismissed the petition, concluding that Byrne & Jones, as an unsuccessful bidder, lacked standing to challenge the school district's award of the contract to another bidder because it did not bring the action in the interest of the public or as a taxpayer. The Supreme Court affirmed, holding (1) Byrne & Jones had standing to challenge the award of the contract to another bidder; but (2) the trial court did not err in dismissing the petition because Byrne & Jones was not entitled to the relief requested in the petition. View "Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist." on Justia Law 2016-07-26 state Missouri Supreme Court of Missouri Patricia Breckenridge SC94680 http://law.justia.com/cases/nebraska/supreme-court/2016/s-15-581.html Weitz Co., LLC v. Hands, Inc. 2016-07-22T05:32:38-08:00 2016-07-22T12:37:54-08:00 The Weitz Company, LLC, a general contractor, submitted a bid on a planned nursing facility. Weitz's bid incorporated the amount of a bid submitted to Weitz by H&S Plumbing and Heating for the plumbing work and the heating, ventilation, and air conditioning parts of the job. The project owner awarded the project to Weitz, but H&S reneged on its bid. Weitz used other subcontractors to complete the project at greater expense. Weitz later sued H&S, claiming breach of contract and promissory estoppel. The court determined that the parties had not formed a contract but enforced H&S's bid under promissory estoppel, awarding Weitz damages of $292,492. The Supreme Court affirmed the judgment and the amount of damages, holding that the district court did not err by entering a judgment for Weitz on its promissory estoppel claim and correctly measured Weitz's damages. View "Weitz Co., LLC v. Hands, Inc." on Justia Law 2016-07-22 state Nebraska Nebraska Supreme Court William M. Connolly S-15-581 http://law.justia.com/cases/pennsylvania/supreme-court/2016/55-map-2015.html A. Scott Enterprises v. City of Allentown 2016-07-19T11:33:23-08:00 2016-07-19T12:37:04-08:00 Appellant City of Allentown (City) contracted with appellee A. Scott Enterprises, Inc. (ASE), to construct a new public road. After arsenic-contaminated soil was discovered at the worksite, the City suspended work on the project. Following testing, it was determined construction could resume if precautions were taken. Accordingly, the City instructed ASE to obtain revised permits and proceed with the project. However, the existing contract did not include terms regarding the potential for contaminated soil, despite the fact the City was aware there might be contamination prior to entering into the contract, and ASE declined to proceed, explaining it would incur substantial additional costs due to the contaminated soil. The parties made several attempts to reach an agreement in which ASE would continue the construction, but to no avail. Consequently, ASE sued the City to recover its losses on the project, alleged breach of contract, and sought compensation under theories of quantum meruit and unjust enrichment, as well as interest and a statutory penalty and fee award for violations of the prompt pay provisions of the Procurement Code. After a trial, a jury found the City breached its contract with ASE and also withheld payments in bad faith. In this discretionary appeal, the issue this case presented for the Supreme Court's review was whether an award of a statutory penalty and attorney fees under the prompt payment provisions of the Commonwealth's Procurement Code was mandatory upon a finding of bad faith, irrespective of the statute's permissive phrasing. The Court held such an award was not mandatory, and therefore reversed the order of the Commonwealth Court and remanded the case to the trial court for further proceedings. View "A. Scott Enterprises v. City of Allentown" on Justia Law 2016-07-19 state Pennsylvania Supreme Court of Pennsylvania Doughtery 55 MAP 2015 http://law.justia.com/cases/california/court-of-appeal/2016/b258353.html Flintco Pacific v. TEC Mgmt. Consultants 2016-07-19T10:31:02-08:00 2016-07-19T10:48:32-08:00 After TEC, a subcontractor, submitted a written bid to Flintco, a general contractor, to perform glazing work on a project, Flintco used TEC's bid price in compiling its own bid to the owner of the project. Flintco was awarded the contract and sent TEC a letter of intent to enter into a subcontract and a standard-form subcontract, both of which documents differed materially from TEC's bid. TEC refused to enter into a subcontract. Flintco secured another subcontractor for that scope of work and sued TEC on a theory of promissory estoppel seeking the difference between TEC's bid and the amount Flintco was required to pay the replacement subcontractor. The trial court entered judgment for TEC. The court concluded that Flintco failed to demonstrate that there was no substantial evidence to support the trial court's finding that Flintco did not reasonably rely on TEC's bid price without considering the material conditions stated in TEC's bid, the proposed subcontract Flintco sent TEC constituted a counteroffer because it contained material variations from the conditions in TEC's bid, and the counteroffer gave TEC the right to withdraw its bid. Accordingly, the court affirmed the judgment. View "Flintco Pacific v. TEC Mgmt. Consultants" on Justia Law 2016-07-19 state California California Court of Appeal Richard D. Aldrich B258353 http://law.justia.com/cases/federal/appellate-courts/ca7/15-1004/15-1004-2016-07-07.html Sheet Metal Workers Int'l Assoc. v. Horning Invs., LLC 2016-07-07T14:00:49-08:00 2016-07-07T15:03:53-08:00 In 2011, Horning won the subcontract for roofing work at the Dayton Veterans Affairs Medical Center. The Davis‐Bacon Act, 40 U.S.C. 3141–43, requires contractors who perform construction for the federal government to pay their workers the "prevailing wage." Department of Labor regulations at that time set the base rate for a Dayton Sheet Metal Worker at $26.41 per hour; the fringe benefit rate was another $16.82 an hour. The workers were properly classified and received the appropriate base rate. All employees who work at Horning for more than 90 days are eligible for insurance; some receive vacation days. After a year, they become eligible for matching contributions to a 401(k) account. Accountants advised Horning about the amount to deposit into its benefits trust to comply with ERISA and Davis‐Bacon. Horning deducted a flat hourly fee from the paycheck of each Medical Center worker, regardless of whether the employee was eligible for any benefits. The amount did not correspond to the actual monetary value of the benefits each individual employee received. The Union filed a qui tam action under the False Claims Act, 31 U.S.C. 3729–3733, rather than filing under Davis-Bacon. The Seventh Circuit affirmed judgment in favor of Horning. Under the False Claims Act, the Union had to show that Horning knowingly made false statements (or misleading omissions) that were material to the government's payment decision. The Union did not proffer enough evidence to permit a reasonable jury to conclude that Horning acted with such knowledge. View "Sheet Metal Workers Int'l Assoc. v. Horning Invs., LLC" on Justia Law 2016-07-07 federal U.S. Court of Appeals for the Seventh Circuit Diane Pamela Wood 15-1004 http://law.justia.com/cases/south-carolina/supreme-court/2016/27645.html Smith v. D.R. Horton, Inc 2016-07-06T05:33:06-08:00 2016-07-06T12:08:13-08:00 In August 2005, D.R. Horton, Inc. completed construction of the Smiths' home, and the Smiths closed on the property and received the deed. Thereafter, the Smiths experienced a myriad of problems with the home that resulted in severe water damage to the property. D.R. Horton attempted to repair the alleged construction defects on "numerous occasions" during the next five years, but was ultimately unsuccessful. In 2010, the Smiths filed a construction defect case against D.R. Horton and seven subcontractors. In response, D.R. Horton filed a motion to compel arbitration. The Smiths opposed the motion, arguing, inter alia, that the arbitration agreement was unconscionable and therefore unenforceable. The circuit court denied D.R. Horton's motion to compel arbitration, finding that the arbitration agreement was unconscionable. D.R. Horton appealed, but finding no error in the circuit court's decision, the South Carolina Supreme Court affirmed. View "Smith v. D.R. Horton, Inc" on Justia Law 2016-07-06 state South Carolina South Carolina Supreme Court Jean H. Toal 27645 http://law.justia.com/cases/federal/appellate-courts/ca7/15-1613/15-1613-2016-06-29.html William Charles Constr. Co., LLC v. Teamsters Local Union 627 2016-06-29T07:30:49-08:00 2016-06-29T08:47:56-08:00 William Charles Construction (WCC) entered into a labor agreement with the Illinois Department of Transportation for the "Biggsville" construction project to expand a section of Rt. 34 to four lanes. A jurisdictional dispute between two unions, each claiming the right for their member drivers to operate large trucks involved in the excavation work, was resolved by an arbitrator. Later, a Joint Grievance Committee (JGC) determined, under a subordinated collective bargaining agreement, that WCC owed the Teamsters back pay and fringe benefit contributions ($1.4 million) for having assigned the operation of heavy trucks to the International Union of Operating Engineers rather than the Teamsters. A second JGC award determined that WCC was liable for two days' back pay for having assigned work to two Teamsters in violation of other Teamsters' seniority rights. WCC filed a declaratory action under the Labor-Management Relations Act, 29 U.S.C. 185. The court granted the Teamsters summary judgment, finding that WCC filed its complaint outside the statute of limitations. The Seventh Circuit reversed the grant of summary judgment to the Teamsters and dismissed the Teamsters' counterclaim for enforcement of one of the JGC awards. WCC's challenge to the awards is not barred by the statute of limitations because WCC did not receive notice of their final entry. The greater of the two JGC awards is void because WCC did not agree to arbitration by the JGC. View "William Charles Constr. Co., LLC v. Teamsters Local Union 627" on Justia Law 2016-06-29 federal U.S. Court of Appeals for the Seventh Circuit Daniel Anthony Manion 15-1613 http://law.justia.com/cases/hawaii/supreme-court/2016/scwc-13-0000531.html Arthur v. State, Dep't of Hawaiian Home Lands 2016-06-27T15:31:37-08:00 2016-06-27T19:20:50-08:00 Plaintiffs brought a wrongful death action against Kamehameha Investment Corporation (KIC), the developer of a hillside area, and Sato and Associates, Inc. and Daniel Miyasato (collectively, Sato), the civil engineer. KIC tendered defense against Plaintiffs' claims to Sato pursuant to a hold harmless clause in a project consultant agreement between Sato and KIC. KIC filed a cross-claim against Sato, alleging that Sato had agreed to defend and indemnify KIC against Plaintiffs' claims. The trial court granted KIC's motion for partial summary judgment against Sato. Relying on Pancakes of Hawaii, Inc. v. Pomare Properties Corp., the Intermediate Court of Appeals (ICA) affirmed, concluding that Sato had a contractual duty to defend KIC in the wrongful death action. The Supreme Court vacated the ICA's judgment, holding (1) Haw. Rev. Stat. 431:10-222 renders invalid any provision in a construction contract requiring the promisor to defend "the promisee against liability for bodily injury to persons or damage to property caused by or resulting from the sole negligence of willful misconduct of the promisee, the promisee's agent or employees, or indemnitee"; (2) Pancakes does not apply to defense provisions in construction contracts; and (3) the scope of a promisor's duty to defend imposed by a construction contract is determined at the end of litigation. Remanded. View "Arthur v. State, Dep't of Hawaiian Home Lands" on Justia Law 2016-06-27 state Hawaii Supreme Court of Hawaii Sabrina S. McKenna SCWC-13-0000531 http://law.justia.com/cases/federal/us/579/15-6092/ Mathis v. United States 2016-06-23T07:30:32-08:00 2016-06-23T07:35:27-08:00 The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who has three prior convictions "for a violent felony," including "burglary, arson, or extortion," 18 U.S.C. 924(e). To determine whether a prior conviction is a listed crime, courts apply the "categorical approach," asking whether the elements of the offense sufficiently match the elements of the generic (commonly understood) version of the enumerated crime. When a statute defines multiple crimes by listing multiple, alternative elements, a sentencing court must discern which of the alternative elements was integral to the defendant's conviction, by employing the "modified categorical approach" and examining a limited class of documents from the record of a prior conviction. Mathis pleaded guilty to being a felon in possession of a firearm. He had five prior Iowa burglary convictions. Under the generic offense, burglary requires unlawful entry into a "building or other structure." The Iowa statute (702.12) reaches "any building, structure, [or] land, water, or air vehicle." The district court applied the modified categorical approach, found that Mathis had burgled structures, and imposed an enhanced sentence. The Eighth Circuit affirmed, reasoning that the Iowa statute's list of places did not establish alternative elements, but rather alternative means of fulfilling a single locational element. The Supreme Court reversed. Because the elements of Iowa's law are broader than those of generic burglary, Mathis's prior convictions cannot give rise to ACCA's sentence enhancement. The "underlying brute facts or means" by which the defendant commits his crime make no difference; even if the defendant's conduct fits the generic definition, the mismatch of elements saves him from an ACCA sentence. Construing ACCA to allow a sentencing judge to go further would raise serious Sixth Amendment concerns because only a jury, not a judge, may find facts that increase the maximum penalty. A statute's listing of disjunctive means does not mitigate the possible unfairness of basing an increased penalty on something not legally necessary to the prior conviction. View "Mathis v. United States" on Justia Law 2016-06-23 federal U.S. Supreme Court Elena Kagan 15-6092 http://law.justia.com/cases/oklahoma/supreme-court/2016/112777.html Tiger v. Verdigris Valley Electric Cooperative 2016-06-21T12:33:43-08:00 2016-06-22T06:32:18-08:00 In 2008, a field engineer for Verdigris Valley Electric Cooperative (Employer) met with a contract electrician for Integrated Service Company LLC (INSERV) in Catoosa, concerning the installation of additional underground electrical service. They discussed the location of the additional service to the building and decided to use an existing junction box which the engineer observed was surrounded by a yellow metal barricade. He would later note: "I normally recommend that our members [customers] install a protective post an [sic] each corner of a pad mounted device in high traffic areas such as the INSERV plant, to help protect from getting ran [sic] over by vehicles or other equipment. I would never suggest having a barrier of any kind in front of any opening or door on VVEC equipment." Employer's work crew, consisting of Employer was dispatched to install additional underground electrical service to INSERV. The four-man crew consisted of Jones, Jackson, Day, and Tiger. Jones and Jackson were journeymen electricians and Jones was the foreman. Day and Jason Tiger were apprentices. Tiger had been in the journeyman apprentice program for approximately nine months of a four-year program. At the time of his death, Tiger had been certified only in the climbing school portion of his journeyman training. Day had worked for Employer only one month. When the crew arrived at the work site, they found the junction box surrounded by a yellow painted steel barricade, erected presumably to protect it from being struck by vehicles or trailers. The record did not establish who erected or owned the barricade, but Employer owned the junction box and associated electrical equipment. Affixed to the junction box was a warning concerning hazardous voltage and underground power cables and a notice from Employer. Despite this, Tiger was electrocuted attempting to make a connection to the junction box. His widow sued Employer and INSERV pursuant to "Parret v. UNICCO Service Co.," (127 P.3d 572), asserting that Employer knew that injury or death was substantially certain to result from the task Tiger and his coworkers were directed to complete and the conditions in which they were required to work. The District Court denied the employer's motion for summary judgment but granted a second motion for summary judgment after additional discovery. The Court of Civil Appeals affirmed. The Supreme Court reversed after its review of the trial court record, finding material issues of fact remained in dispute. View "Tiger v. Verdigris Valley Electric Cooperative" on Justia Law 2016-06-21 state Oklahoma Oklahoma Supreme Court Tom Colbert 112777 http://law.justia.com/cases/oklahoma/supreme-court/2016/112538.html Pizano v. Lacey & Assoc., LLC 2016-06-21T11:33:01-08:00 2016-06-22T06:13:57-08:00 In 2012, Lacey & Associates, LLC, contracted with Everest Homes, LLC, to purchase a commercial building. In addition, Lacey and Everest executed an escrow agreement for the release of additional funds to Everest if the roof was replaced after title had transferred to Lacey. After title passed to Lacey, Everest entered into a contract with the Williams Group, a contractor, to replace the roof. The Williams Group then hired Andrea Pizano to remove the old roof and HVAC units, which service she performed. In early 2013, Pizano sued alleging the Williams Group did not pay the contractual amount of $11,085, as agreed by the two parties. She filed a mechanic's lien on Lacey's building one day before she filed her petition. The lawsuit sought judgment against the Williams Group in the amount of $11,085, plus interest. The Williams Group never filed an answer. The trial court thereafter entered a default judgment against the Williams Group, awarding Pizano $11,085, an attorney's fee of $2,500.00 and court costs of $461.81. Pizano then sought to foreclose her lien against Lacey and be awarded court costs and attorney fees. She requested that the property be sold to satisfy the judgment. Lacey answered and included a "Cross-motion for Summary Judgment," contending that the new roof leaked so badly that large barrels had to be placed inside the building to catch the water. Therefore, no party was entitled to be paid for the roof. Lacey also asserted that Pizano's motion should be denied because Lacey had no contract with Pizano, and also that the plaintiff failed to file the required pre-lien notice. The trial court granted Pizano's summary judgment motion in part, and denied Lacey's counter-motion for summary judgment. Lacey appealed and Pizano counter-appealed. The Court of Civil Appeals held that Pizano successfully preserved her subcontractor's lien, but found that genuine disputes of fact remained as to the amount owed to Pizano and the enforceability of the lien. The Supreme Court found that the Legislature intended amounts less than $10,000 to be exempt from pre-lien notice. Having provided such an exception, the wording of the applicable statute persuaded the Court that "if a claimant filed a claim of $10,085 without a pre-claim notice, the claim would be enforceable up to $9,999. We do not believe that the claim would be completely unenforceable if it exceeded that legislatively-approved amount by a mere $86." The trial court's order entitling Pizano to a reduced judgment amount of $9,999.00 and an award of attorneys' fees and costs was affirmed. This case was remanded to the trial court to issue a judgment consistent with the law as expressed in the Supreme Court's opinion. View "Pizano v. Lacey & Assoc., LLC" on Justia Law 2016-06-21 state Oklahoma Oklahoma Supreme Court James R. Winchester 112538 http://law.justia.com/cases/texas/supreme-court/2016/14-0650.html Centerpoint Builders GP, LLC v. Trussway, Ltd. 2016-06-17T06:04:27-08:00 2016-06-17T13:41:45-08:00 Centerpoint Builders was hired as the general contractor to build an apartment complex. Centerpoint contracted with a subcontractor to install wooden roof trusses. Centerpoint purchased the trusses directly from Trussway, Ltd., the truss manufacturer. Merced Fernandez, an independent contractor, was rendered paraplegic when a truss broke while he was walking across it. Fernandez sued several entities, including Centerpoint and Trussway, and eventually settled. Centerpoint filed a cross-action against Trussway alleging that Trussway was required to indemnify Centerpoint for any loss arising from Fernandez's suit. Trussway filed its own indemnity cross claim against Centerpoint. Centerpoint sought partial summary judgment, arguing that it was a seller under Tex. Civil Prac. & Rem. Code Ann. chapter 82 and was thus entitled to indemnity as a matter of law. Chapter 82 entitles the "seller" of a defective product to indemnity from the product manufacturer for certain losses. The trial court concluded that Centerpoint was a seller under chapter 82. The court of appeals reversed, concluding that Centerpoint did not fit the statutory definition of a seller and was therefore not eligible to seek indemnity. The court of appeals affirmed. The Supreme Court affirmed, holding that Centerpoint, as the general contractor, was not a "seller" entitled to seek indemnity under chapter 82. View "Centerpoint Builders GP, LLC v. Trussway, Ltd." on Justia Law 2016-06-17 state Texas Supreme Court of Texas Debra Lehrmann 14-0650 http://law.justia.com/cases/federal/appellate-courts/ca7/15-3617/15-3617-2016-06-16.html C.G. Schmidt Inc. v. Permasteelisa N. Am. 2016-06-16T11:30:53-08:00 2016-06-16T11:43:26-08:00 Using a form provided by CGS, the general contractor for construction of an 18-story Milwaukee office building, PNA submitted a $12,675,421 bid to provide a glass curtainwall--a nonstructural outer covering for weatherproofing and aesthetics. The contract manual provided by CGS stated that "[t]he bidder must accept all terms of the [standard CGS] subcontract as a condition for submitting a bid." After CGS chose PNA's bid, PNA repeatedly expressed a need to review the finalized prime contract before it would execute a formal subcontract. CGS and PNA engaged in a "value engineering process" during which they refined the price and other terms of the subcontract. PNA regularly updated the proposed price and communicated the updates to CGS. Several times, PNA raised concerns about subcontract terms. CGS never indicated to PNA that, in CGS's view, there was already an agreement in place. The parties never entered into a formal subcontract. CGS had to use a different subcontractor at a higher price. CGS filed suit. The district court granted PNA summary judgment, finding that the parties did not intend to be bound until the execution of a formal subcontract. The Seventh Circuit affirmed, agreeing that the parties never entered into a binding contract and that CGS's promissory estoppel claim fails as a matter of law. View "C.G. Schmidt Inc. v. Permasteelisa N. Am." on Justia Law 2016-06-16 federal U.S. Court of Appeals for the Seventh Circuit Joel Martin Flaum 15-3617 http://law.justia.com/cases/oregon/supreme-court/2016/s062925.html Goodwin v. Kingsmen Plastering, Inc. 2016-06-16T07:03:22-08:00 2016-06-16T08:41:04-08:00 This case required the Oregon Supreme Court's interpretation of ORS 12.135(1)(a). ORS 12.135(1)(a) provided that an action arising from the "construction, alteration or repair of any improvement to real property" must be commenced within "[t]he applicable period of limitation otherwise established by law." The question in this construction defect case was precisely what is the period of limitation "otherwise established by law." Plaintiffs argued their action was subject to a six-year statute of limitations set out in ORS 12.080(3). Defendant argued that the action was not for injury to an "interest" in real property, but for damage to the property itself, which is governed by a shorter, two-year statute of limitations described in ORS 12.110(1) that applied to tort actions generally. The trial court agreed with plaintiffs that the six year-limitation period applied, but granted summary judgment for defendant on the ground that plaintiffs brought their action more than six years after the construction was completed. The Court of Appeals reversed and remanded, holding that, although the six-year statute applied, a "discovery rule" applied, there remained an issue of fact as to whether plaintiffs initiated their action within six years from the time that they knew or should have known of the injury that formed the basis for their claim. After its review, the Supreme Court concluded that the Court of Appeals erred in holding that plaintiffs' action was subject to the six-year statute: that statute applied to actions for interference with or injury to an "interest" in real property, such as trespass or waste, not to actions for damage to property itself, which are subject to the two-year statute of limitations. There remained, however, a question of fact as to when plaintiffs discovered the damage to their property, which would have triggered the two-year statute of limitations. The Supreme Court therefore affirmed the Court of Appeals with regard to summary judgment, and remanded for for further proceedings. View "Goodwin v. Kingsmen Plastering, Inc." on Justia Law 2016-06-16 state Oregon Oregon Supreme Court Jack L. Landau S062925 http://law.justia.com/cases/west-virginia/supreme-court/2016/14-0441.html Schumacher Homes of Circleville v. Spencer 2016-06-13T11:04:21-08:00 2016-06-13T13:14:29-08:00 Plaintiff signed a contract with Defendant for the construction of a house. The contract contained an arbitration clause. Plaintiff later brought suit against Defendant, claiming that there were defects in the house. Defendant filed a motion to dismiss and compel arbitration. The circuit court denied the motion, finding that the arbitration clause was unconscionable. Defendant appealed, arguing that the circuit court erred by ruling on questions of arbitrability despite the existence of a delegation provision in the arbitration agreement that vested the arbitrator with authority to determine issues of arbitrability relating to the dispute. The Supreme Court determined that the circuit court was within its rights not to enforce the delegation language because the language did not reflect the parties' clear and unmistakable intention to delegate issues about the validity, revocability, or enforceability of the arbitration agreement to an arbitrator. The United States Supreme Court granted Defendant's requested writ of certiorari, vacated the Supreme Court's opinion, and remanded for further consideration in light of their decision in DIRECTV, Inc. v. Imburgia. The Supreme Court reversed the circuit court's order, holding that because Plaintiffs never specifically challenged the delegation language before the circuit court or Supreme Court, Plaintiffs waived any right to challenge the delegation language. Remanded for arbitration. View "Schumacher Homes of Circleville v. Spencer" on Justia Law 2016-06-13 state West Virginia Supreme Court of Appeals of West Virginia Menis E. Ketchum, II 14-0441 http://law.justia.com/cases/wyoming/supreme-court/2016/s-15-0206.html Bates v. Chicago Lumber Co. of Omaha 2016-06-10T01:18:10-08:00 2016-06-11T14:12:22-08:00 Contractor Anderson Carpentry and Construction built a home for Shad and Trisha Bates. Anderson contracted with Century Lumber Center to purchase supplies and materials to build the Bates home. The Bates paid Anderson for materials used on the home, but those funds were applied to other accounts, and the account with Century on the Bates job became delinquent. Century filed a material lien against the Bates property and filed a complaint seeking to foreclose the lien against the property. The district court ultimately enforced the lien. The Supreme Court reversed, holding that the lien was not timely filed as a matter of law. View "Bates v. Chicago Lumber Co. of Omaha" on Justia Law 2016-06-09 state Wyoming Wyoming Supreme Court Michael K. Davis S-15-0206 S-15-0207 http://law.justia.com/cases/federal/appellate-courts/ca6/15-3782/15-3782-2016-06-03.html Mountain States Contractors, LLC v. Perez 2016-06-03T08:00:45-08:00 2016-06-03T08:58:07-08:00 The Tennessee Department of Transportation engaged Mountain States to build two bridges over the Cumberland River at its intersection with Highway 109 in Gallatin. On May 21, 2013, the boom cable of a Terex HC 165 crane snapped while the crane operator was excavating material from under water, causing the boom—the extendable overhead arm of the crane controlled by the load-bearing wire boom cable—to collapse onto the adjacent highway. As the cable broke under tension, it whipped back to shatter the windows of the crane operator's cab and the boom hit a passing vehicle. Though no person was injured, the subsequent OSHA investigation determined that at least four people were exposed to risk as a result of the accident. An Administrative Law Judge determined that Mountain States had committed a willful violation of the wire rope inspection standard of the Occupational Safety and Health Administration Act because, before the accident, Mountain States had knowledge that the boom cable had "visible broken wires" within the meaning of the provision requiring repair or replacement before further use. The Sixth Circuit affirmed the citation and penalty, finding substantial evidence to support findings of constructive and actual knowledge. View "Mountain States Contractors, LLC v. Perez" on Justia Law 2016-06-03 federal U.S. Court of Appeals for the Sixth Circuit Jane Branstetter Stranch 15-3782 http://law.justia.com/cases/rhode-island/supreme-court/2016/14-284.html Cashman Equip. Corp., Inc. v. Cardi Corp., Inc. 2016-06-03T07:16:20-08:00 2016-06-03T10:07:02-08:00 Cashman sued, alleging Cardi provided defective cofferdams for construction of the Sakonnet River Bridge. Cofferdams are temporary watertight enclosures that are pumped dry to expose the bottom of a body of water so that construction can occur. During discovery, Cashman sought, and Cardi refused to produce, computer models and draft reports that had been "considered by" its testifying engineering expert to determine "certain stress and loads that are going to be placed on certain points on this cofferdam," including models "that [the expert] created which [he] may not have relied on but certainly would've considered" and draft reports. Cardi argued that Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure does not allow discovery of materials "considered by" an expert in forming an expert opinion. The hearing justice concluded that he did not have the authority to compel production of the material. The Rhode Island Supreme Court affirmed, after considering interpretations of the corresponding Federal Rule. The state rule is "clear and unambiguous" and is confined to discovery through interrogatories or deposition. It does not provide for the disclosure of documents. View "Cashman Equip. Corp., Inc. v. Cardi Corp., Inc." on Justia Law 2016-06-03 state Rhode Island Rhode Island Supreme Court William P. Robinson, III 14-284 http://law.justia.com/cases/mississippi/supreme-court/2016/2015-ca-00596-sct.html H.A.S. Electrical Contractors, Inc. v. Hemphill Construction Company, Inc. 2016-06-02T10:32:22-08:00 2016-06-02T10:57:23-08:00 During jury selection, plaintiff H.A.S. Electrical Contractors (HAS) challenged defendant Hemphill Construction Company's use of two peremptory strikes. HAS argued Hemphill's strikes were racially discriminatory. The Supreme Court found that the trial court failed to follow the "Batson" criterial when it analyzed the challenged strike of one juror. The Supreme Court remanded this case back to the trial court for a limited "Batson" hearing for Juror 7. View "H.A.S. Electrical Contractors, Inc. v. Hemphill Construction Company, Inc." on Justia Law 2016-06-02 state Mississippi Supreme Court of Mississippi Maxwell 2015-CA-00596-SCT http://law.justia.com/cases/colorado/supreme-court/2016/13sc815-0.html Travelers Prop. Cas. Co. v. Stresscon Co. 2016-05-23T07:30:37-08:00 2016-05-23T08:45:09-08:00 Travelers Property Casualty Company of America (Travelers) petitioned for review of a court of appeals judgment affirming the district court's denial of its motion for directed verdict in a lawsuit brought by its insured, Stresscon Corporation. Stresscon, a subcontracting concrete company, filed suit against Travelers, alleging, among other things, that Travelers acted in bad faith, unreasonably delaying or denying its claim for covered insurance benefits; and Stresscon sought awards of two times the covered benefits along with fees and costs, as prescribed by statute. Stresscon's claims for relief arose from a serious construction accident in July 2007, which was caused by a crane operator employed by a company that was itself a subcontractor of Stresscon. Stresscon's general contractor, Mortenson, sought damages from Stresscon, asserting Stresson's contractual liability for the resulting construction delays, and Stresscon in turn sought indemnification from Travelers. Although there was much dispute over the factual and legal import of Travelers' reservation of rights and other of its communications with both Stresscon and Mortenson concerning Mortenson's claim, there was no dispute that by December 31, 2008, Travelers had not paid the damages asserted by Mortenson. The appellate court rejected Travelers' contention that the no-voluntary-payments clause of their insurance contract relieved it of any obligation to indemnify Stresscon for payments Stresscon had made without its consent. Instead, the court of appeals found that the Colorato Supreme Court's opinion in "Friedland v. Travelers Indemnity Co.," (105 P.3d 639 (2005)) had effectively overruled prior "no voluntary payments" jurisprudence to the contrary and given Stresscon a similar opportunity. The Supreme Court found that its adoption of a notice-prejudice rule in "Friedland" did not overrule any existing "no voluntary payments" jurisprudence in Colorado, and because the Court declined to extend notice-prejudice reasoning in Friedland to Stresscon's voluntary payments, made in the face of the no-voluntary-payments clause of its insurance contract with Travelers, the judgment of the court of appeals was reversed. View "Travelers Prop. Cas. Co. v. Stresscon Co." on Justia Law 2016-05-23 state Colorado Colorado Supreme Court Coats 13SC815 http://law.justia.com/cases/illinois/supreme-court/2016/119365.html Fattah v. Bim 2016-05-19T06:31:17-08:00 2016-05-19T09:04:57-08:00 In 2005, Masterklad built a house in Glenview, including a brick patio that extended off the rear of the house. Because the ground underneath the patio sloped down, dirt and gravel were placed underneath it to support the bricks and make them level with the house's rear entrance. A retaining wall was built to contain the fill. In 2007, the house was sold by Masterklad to a Lubeck for $1,710,000. In the contract Lubeck "knowingly, voluntarily, fully and forever," waived the implied warranty of habitability in exchange for an express warranty provided by Masterklad, with a one-year term. In 2010, Lubeck sold the house to Fattah, for $1,050,000, with a document stating that the house was being sold "as is" and that the seller made no representations or warranty regarding its condition. In 2011, parts of the retaining wall around the rear patio gave way and part of the patio collapsed. The owner sued. The circuit court found that the patio wall had given way due to latent defects in its construction, but that plaintiff could not recover because Masterklad had executed a valid, enforceable waiver of the implied warranty of habitability with Lubeck. The appellate court reversed. The Illinois Supreme Court reversed. The implied warranty of habitability may not be extended to a second purchaser of a house when a valid, bargained-for waiver of the warranty has been executed between the builder-vendor and the first purchaser. View "Fattah v. Bim" on Justia Law 2016-05-19 state Illinois Supreme Court of Illinois Anne M. Burke 119365 http://law.justia.com/cases/federal/appellate-courts/cadc/14-7041/14-7041-2016-05-17.html GSS Group Ltd. v. Republic of Liberia 2016-05-17T06:31:45-08:00 2016-05-17T14:34:41-08:00 GSS appealed the district court's dismissal of its second attempt to confirm a $44 million arbitral award entered against the Port Authority for breach of a construction contract. GSS first tried to confirm the award, but the district court found that it had no personal jurisdiction over the Port Authority. Then GSS filed its second petition, also naming the Republic of Liberia, which owns the Port Authority, as respondents. The district court again dismissed GSS's petition, finding that issue preclusion barred relitigating its personal jurisdiction over the Port Authority and that GSS failed to demonstrate that Liberia was liable for the Port Authority's alleged breach. The court affirmed the district court's dismissal of the claims against Liberia for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330 et seq.; affirmed the district court's dismissal of GSS's petition against the Port Authority on sovereign immunities grounds; and concluded that the district court did not abuse its discretion by dismissing GSS's petition before allowing jurisdictional discovery. View "GSS Group Ltd. v. Republic of Liberia" on Justia Law 2016-05-17 federal U.S. Court of Appeals for the District of Columbia Circuit Henderson 14-7041 http://law.justia.com/cases/federal/appellate-courts/ca8/15-2596/15-2596-2016-05-13.html Associated Electric & Gas Ins. v. BendTec, Inc. 2016-05-13T07:31:05-08:00 2016-05-13T14:52:40-08:00 The utility and its insurers filed suit against BendTec for negligence, alleging that its pipes were the source of grit and had been improperly cleaned. The district court granted summary judgment to BendTec. The court affirmed the judgment, agreeing with the district court's conclusion that the negligence claim was barred under the two year limitations period in Minn. Stat. 541.051 since the installation of the turbine was an improvement to real property. Because the two year statute of limitations in Minn. Stat. 541.051 applies and the subdivision 1(e) exception does not, and plaintiffs did not file this lawsuit within the limitations period, the district court correctly granted summary judgment to BendTec. View "Associated Electric & Gas Ins. v. BendTec, Inc." on Justia Law 2016-05-13 federal U.S. Court of Appeals for the Eighth Circuit Murphy 15-2596 15-2598 http://law.justia.com/cases/california/court-of-appeal/2016/b262850.html McGee v. Balfour Beatty Constr. 2016-05-04T11:30:20-08:00 2016-05-04T13:27:15-08:00 Education Code section 17406 governs lease-leaseback construction agreements. Plaintiffs filed suit alleging that the lease-leaseback agreements entered into by defendants were a sham to avoid the competitive bid process and are therefore void. The court concluded that the trial court properly sustained the demurrer to all causes of action alleging the district was required to obtain competitive bids where competitive bids were not required under section 17406. The court also concluded that the trial court should have overruled the demurrer to the conflict of interest cause of action for violation of Government Code section 1090 where, at this early stage in the proceedings, section 1090 may apply. The court rejected defendants' arguments that plaintiffs lack standing to raise the issue and that section 1090 always excludes all independent contractors. Finally, the court concluded that the sanctions against plaintiffs' attorney must be reversed because the litigation is not frivolous. Accordingly, the court reversed in part and affirmed in part. View "McGee v. Balfour Beatty Constr." on Justia Law 2016-05-04 state California California Court of Appeal Madeleine Flier B262850 http://law.justia.com/cases/michigan/supreme-court/2016/149989.html Wyandotte Electric Supply Co. v. Electrical Technology Systems, Inc. 2016-05-04T05:00:08-08:00 2016-05-04T07:36:21-08:00 In 2009 and 2010, the south wing of the Detroit Public Library was renovated. Defendant KEO & Associates, Inc. (KEO) was the principal contractor for this project. Defendant Westfield Insurance Company supplied KEO with a payment bond worth $1.3 million, as required by the public works bond act (PWBA). KEO was identified as the principal contractor and Westfield as the surety on the bond. KEO subcontracted with defendant Electrical Technology Systems, Inc. (ETS) to provide labor and materials for electrical work. The agreement between KEO and ETS included a pay-if-paid clause, obliging KEO to pay ETS only after KEO had been paid for the relevant portion of work performed. ETS in turn subcontracted with Wyandotte Electric Supply Company for materials and supplies, making Wyandotte a sub-subcontractor from KEO's perspective. ETS and Wyandotte first formed a relationship in 2003, when they entered into an "open account" agreement that governed ETS's purchases from Wyandotte. Over the course of the project, ETS paid Wyandotte only sporadically and the unpaid balance grew. Initially, Wyandotte supplied materials on credit and credited ETS's payments to the oldest outstanding balance, but eventually Wyandotte began to ship materials only for cash on delivery. Wyandotte sent certified letters to KEO and Westfield asking for a copy of the payment bond related to the library renovation project. The letter, on Wyandotte's letterhead, referred to the "Detroit Public Library South Wing with [ETS.]" According to Wyandotte, KEO provided a copy of the payment bond the next day. Wyandotte also sent KEO a 30-day "Notice of Furnishing" in accordance with MCL 129.207, explaining that it was one of ETS's suppliers. Wyandotte also sent copies of the letter to Westfield, the library, and ETS. The issue this case presented for the Supreme Court's revie centered on whether actual notice was required for a sub-subcontractor to recover on a payment bond when that sub-subcontractor complied with the notice requirements set forth in MCL 129.207. Furthermore, this case raised the question of whether a PWBA claimant could recover a time-price differential and attorney fees that were provided for by the claimant's contract with a subcontractor, but were unknown to the principal contractor holding the payment bond as well as the principal's surety. The Supreme Court concluded that the PWBA contained no actual notice requirement for claimants that comply with the statute, that the trial court properly awarded a time-price differential and attorney fees on past-due invoices to Wyandotte, and that the trial court erred in awarding postjudgment interest under MCL 600.6013(7). Accordingly, the Court affirmed the Court of Appeals with regard to the first two issues and reversed with regard to the third. View "Wyandotte Electric Supply Co. v. Electrical Technology Systems, Inc." on Justia Law 2016-05-03 state Michigan Michigan Supreme Court Bernstein 149989 http://law.justia.com/cases/louisiana/supreme-court/2016/2015-c-1430.html Lamar Contractors, Inc. v. Kacco, Inc. 2016-05-03T09:32:25-08:00 2016-05-03T11:41:19-08:00 Lamar Contractors, Inc. was general contractor on a construction project, and entered into a subcontract with Kacco, Inc. to provide metal framing and drywall work on the project. The subcontract included a "pay-if-paid" payment provision, which afforded Lamar ten days to remit payment to its subcontractors after receipt of payment from the owner. Kacco began work on the project but experienced recurring problems with providing manpower and paying for supplies. Kacco submitted an invoice for work that reflected that forty-five percent of the work had been performed. Lamar paid the invoice prior to receiving payment from the owner. Lamar sent Kacco an email noting its concerns with whether Kacco would be able to perform under the subcontract. Kacco notified Lamar that Kacco was waiting on another payment so that it could order and pay for supplies to finish the project. Lamar had received payment from the owner on January 26; however, pursuant to the subcontract, Lamar was not required to make payment to Kacco until February 9, ten business days later. Lamar officially terminated Kacco's subcontract in a letter dated February 5. After termination of the subcontract with Kacco, Lamar hired another contractor to complete the work. Lamar then sued Kacco for breach of the subcontract. Kacco countersued Lamar for allegedly failing to pay for work performed under the contract, and that failure to pay caused it to breach. After a bench trial, the district court entered judgment on the main demand for Lamar for $24,116.67 with interest, $7,681.75 for attorney's fees, and $3,105.81 in costs. Additionally, the district court entered a judgment in the amount of $60,020.00 plus interest in favor of Kacco on its countersuit. Lamar appealed but the court of appeal affirmed. Under the circumstances of this case, it was clear to the Supreme Court that Lamar did not violate any obligation owed under the contract to make payment to Kacco and could not have negligently contributed to Lamar's breach of its obligations under the contract. Accordingly, the district court erred in reducing Lamar's award of damages. The case was remanded for further proceedings. View "Lamar Contractors, Inc. v. Kacco, Inc." on Justia Law 2016-05-03 state Louisiana Louisiana Supreme Court Per Curiam 2015-C-1430 http://law.justia.com/cases/louisiana/supreme-court/2016/2015-c-0785.html Pierce Foundations, Inc. v. JaRoy Construction, Inc. 2016-05-03T09:32:24-08:00 2016-05-03T11:39:13-08:00 This matter stemmed from a public works project for the construction of a gymnasium in Terrytown. JaRoy Construction Inc. served as the general contractor, and pursuant to statute, furnished a surety bond to Jefferson Parish. Ohio Casualty Insurance Company was the surety. JaRoy entered into a written subcontract with Pierce Foundations, Inc. to provide and install pilings for the project. Once finished, Pierce alleged JaRoy failed to pay certain funds due under the subcontract. Pierce sued both JaRoy and Ohio Casualty Insurance, alleging they were jointly and severally liable to Pierce. JaRoy filed for bankruptcy, leaving only Ohio Casualty Insurance as party to the suit. When the project was substantially completed, the Jefferson Parish government filed a notice of acceptance of work with the Jefferson Parish mortgage records office. This occurred over a year after Pierce amended its lawsuit to add Ohio Casualty as a defendant. Pierce never filed a sworn statement of claim in the mortgage records. Ohio Casualty filed a motion for summary judgment, contending that Pierce was required to comply with statutory notice and recordation, and because it failed to do so within 45 days of Jefferson Parish's acceptance of the project, Pierce could not recover from Ohio Casualty. Pierce argued that the statute did not affect its right to proceed in contract. After a bench trial, the trial court rendered judgment in favor of Pierce for sums owed under the contract plus judicial interest from the date of the original judgment. Ohio Casualty appealed, arguing that the trial court erred in not dismissing Pierce's claims. The court of appeal reversed and ruled in Ohio Casualty's favor. The Supreme Court, however, disagreed and affirmed the trial court judgment. View "Pierce Foundations, Inc. v. JaRoy Construction, Inc." on Justia Law 2016-05-03 state Louisiana Louisiana Supreme Court Crichton 2015-C-0785 http://law.justia.com/cases/california/court-of-appeal/2016/a142203.html Hearn Pac. Corp. v. Second Generation Roofing, Inc. 2016-05-02T15:30:22-08:00 2016-05-02T16:13:44-08:00 In 2007, the Sonoma County project's owner sued Hearn, the general contractor, Second Generation, the roofer, and other subcontractors for design and construction defects. Hearn cross-complained against Second Generation and others. In 2009, Hearn assigned its interests under its subcontracts to two insurers, North American and RSUI. Hearn then settled with the owner and all but two subcontractors, one of which was Second Generation. Hearn filed an amended cross-complaint, purportedly in the name of the insurers, against those subcontractors, adding breach of a contractual obligation to obtain insurance and seeking equitable contribution for Hearn's defense costs premised on a breach of that duty. In 2013, the court dismissed the cross-complaint against Second Generation on procedural grounds, awarded $30,256.79 in costs and granted prevailing party attorney fees of $179,119. Second Generation moved to amend the orders to name North American as a judgment debtor owing the amounts awarded against Hearn. The trial court denied the motion, stating: Hearn remains the only proper party and that the subcontractor's exclusive remedy was to pursue a separate action against Hearn's insurers. The court of appeal reversed, finding that, after the assignment, Hearn was "out of this case." View "Hearn Pac. Corp. v. Second Generation Roofing, Inc." on Justia Law 2016-05-02 state California California Court of Appeal Stewart A142203 http://law.justia.com/cases/colorado/supreme-court/2016/13sc815.html Travelers Prop. Cas. Co. v. Stresscon Co. 2016-04-25T07:30:30-08:00 2016-04-25T12:04:12-08:00 Stresscon Corporation, a subcontracting concrete company, filed suit against Travelers Property Casualty Company of America, alleging, among other things, that Travelers acted in bad faith, unreasonably delaying or denying its claim for covered insurance benefits; and Stresscon sought awards of two times the covered benefits along with fees and costs, as prescribed by statute. Stresscon's claims for relief arose from a 2007 serious construction accident which was caused by a crane operator employed by a company that was itself a subcontractor of Stresscon. Stresscon's general contractor, Mortenson, sought damages from Stresscon, asserting Stresson's contractual liability for the resulting construction delays, and Stresscon in turn sought indemnification from Travelers. Travelers petitioned for review of the court of appeals' judgment affirming the district court's denial of its motion for directed verdict in a lawsuit brought by its insured, Stresscon. Much as the district court had done, the appellate court rejected Travelers' contention that the no-voluntary-payments clause of their insurance contract relieved it of any obligation to indemnify Stresscon for payments Stresscon had made without its consent. Instead, the court of appeals found that the Colorado Supreme Court's opinion in "Friedland v. Travelers Indemnity Co.," (105 P.3d 639 (2005)) had effectively overruled the Court's prior "no voluntary payments" jurisprudence to the contrary and given Stresscon a similar opportunity. The Supreme Court reversed, finding that its adoption of a notice-prejudice rule in "Friedland" did not overrule any existing "no voluntary payments" jurisprudence. The Court declined to extend a notice-prejudice reasoning to Stresscon's voluntary payments, made in the face of the no-voluntary-payments clause of its insurance contract with Travelers. View "Travelers Prop. Cas. Co. v. Stresscon Co." on Justia Law 2016-04-25 state Colorado Colorado Supreme Court Coats 13SC815 http://law.justia.com/cases/federal/appellate-courts/ca6/14-4102/14-4102-2016-04-21.html Baker Concrete Constr., Inc. v. Reinforced Concrete Contractors Ass'n 2016-04-21T07:30:48-08:00 2016-04-21T10:21:26-08:00 Baker, an Ohio concrete construction business, subcontracts its work to smaller firms. In 2000, Baker signed a multi-employer collective bargaining agreement (CBA) between the Reinforced Concrete Contractors Association and the Union, covering current employees and employees not yet hired. A prehire CBA is allowed only in the construction industry, 29 U.S.C. 158(f). The CBA renewed automatically. On January 25, 2013, Baker sent the Union a letter, asserting: "Baker's notice of its intent to terminate the Agreement, including any subsequent successor agreements." The Union responded: "notice of withdrawal should be made not more than 60 days prior to the termination of the Agreement. The Agreement is in effect … until May 31, 2015, therefore your request was untimely." Baker reiterated that none of its employees perform work covered by the Agreement and that none had performed bargaining unit work covered by the Agreement for at least seven years. The Union filed a grievance. Baker stated that it did not recognize the arbitrator's authority, but would appear to preserve its position. The arbitrator found Baker in violation of the CBA. The district court vacated the award. The Sixth Circuit affirmed, adopting the single-employee-unit rule; an employer may repudiate statutory and contractual obligations when the employer does not employ anyone within the relevant bargaining unit. View "Baker Concrete Constr., Inc. v. Reinforced Concrete Contractors Ass'n" on Justia Law 2016-04-21 federal U.S. Court of Appeals for the Sixth Circuit Batchelder 14-4102 http://law.justia.com/cases/minnesota/supreme-court/2016/a14-0863.html J.D. Donovan, Inc. v. Minn. Dep't of Transp. 2016-04-20T09:05:19-08:00 2016-04-20T19:04:12-08:00 At issue in this case was whether truck drivers hauling asphalt cement from a commercial oil refinery to a contractor's facility are performing "work under a contract" under Minn. Stat. 177.44(1) and, therefore, must be paid prevailing wages. The Minnesota Department of Transportation (MDOT) determined that the construction companies that were awarded contracts to work on state highway projects violated the project contracts by failing to ensure that drivers that assisted in the acquisition and transport of asphalt cement for the projects were paid prevailing wages. Appellants argued that the hauling activities of these drivers did not constitute "work under a contract" under Minn. Stat. 177.44(1) and, alternatively, that the hauling activities were exempt from the prevailing wage requirements under the "commercial establishment exception" in the Prevailing Wage Act. The district courts granted summary judgment to MDOT. The court of appeals affirmed. The Supreme Court reversed, holding that hauling activities must be to, from, or on the site of a public works project to qualify as "work under a contract," and therefore, the hauling activities in this case did not constitute "work under the contract" subject to the prevailing wage requirements. View "J.D. Donovan, Inc. v. Minn. Dep't of Transp." on Justia Law 2016-04-20 state Minnesota Minnesota Supreme Court Lorie Skjerven Gildea A14-0863 A14-1021 http://law.justia.com/cases/montana/supreme-court/2016/da-15-0429.html Employers Mut. Cas. Co. v. Slack 2016-04-19T13:31:58-08:00 2016-04-19T14:17:53-08:00 Jerry and Karen Slack hired Jeffrey Fisher and his construction company, Fisher Builders, to build a remodeled home. During the project, the deck collapsed, and the Slacks' construction permit was revoked. The Slacks filed a negligence action against Fisher and his company. Fisher had a commercial general liability insurance policy with Employers Mutual Casualty Company (EMC). EMC filed a declaratory action alleging that there was no coverage and that it had no duty to defend or indemnify any party in the negligence action. Fisher and Fisher Builders ultimately settled with the Slacks and assigned their rights under the EMC insurance policy to the Slacks. The district court granted summary judgment in favor of EMC, ruling that Fisher's conduct was clearly intentional and did not fit within the meaning of "occurrence" under the policy, regardless of whether Fisher intended the consequences. The Supreme Court reversed, holding that the district court (1) erred by concluding that, in the context of general liability insurance, the term "occurrence," defined by the policy as "an accident," categorically precludes coverage for any intentional conduct on the part of the insured with unintended results; and (2) erred when it granted summary judgment in favor of EMC, as issues of material fact precluded summary judgment. Remanded. View "Employers Mut. Cas. Co. v. Slack" on Justia Law 2016-04-19 state Montana Montana Supreme Court James A. Rice DA 15-0429 http://law.justia.com/cases/ohio/supreme-court-of-ohio/2016/2015-0628.html Stolz v. J & B Steel Erectors, Inc. 2016-04-19T05:02:32-08:00 2016-04-19T13:37:32-08:00 Daniel Stolz worked for a subcontractor on a construction project when he was injured in an accident on the job site. Prior to the accident, Messer had obtained authority from the Ohio Bureau of Workers' Compensation to act as the self-insuring employer on the project, which gave Messer responsibility for providing workers' compensation coverage for its own employees as well as the employees of enrolled subcontractors on the project. Stolz brought negligence claims against Messer Construction, the general contractor, and several subcontractors. A federal district court granted summary judgment to Messer as the self-insuring employer but denied summary judgment to the subcontractors, concluding that an enrolled subcontractor on a self-insured construction project is immune from claims made by its own employees but not from those made by employees of other enrolled subcontractors. The federal court then certified a question of state law to the Supreme Court. The Supreme Court answered that subcontractors enrolled in a self-insured construction project plan are immune from tort claims for workplace injuries from employees of other enrolled subcontractors on the same project. View "Stolz v. J & B Steel Erectors, Inc." on Justia Law 2016-04-19 state Ohio Supreme Court of Ohio Maureen O'Connor 2015-0628 http://law.justia.com/cases/mississippi/supreme-court/2016/2014-ca-01378-sct.html City of Tupelo v. McMillin 2016-04-14T10:31:43-08:00 2016-04-14T12:10:42-08:00 In 2006, Dr. Terry McMillin and his wife Leslie purchased a new home in Tupelo. Unhappy with contractor Jamie Ewing's failure to respond to their repair requests, plus their discovery of a document (a blue card, noting a failed home inspection) listing the name of a different contractor as the contractor responsible for their home's construction, the McMillins began the process of unraveling just who was responsible for building their new home. Ultimately, this case stemmed from an error by the City of Tupelo's Permit Manager Marilyn Vail in handling the withdrawal of one licensed contractor and mistakenly substituting the name of another licensed contractor, when in actuality, a licensed contractor was not working on the home. The circuit court held a bench trial and awarded $9,319.23 in damages to repair the home and $105,894.39 in legal fees related to another case involving the construction but denied the McMillins' request for attorneys' fees in this case. The City appealed, and the McMillins cross-appealed. After review, the Supreme Court concluded that the circuit court erred in finding that the City was not immune from liability. The Court therefore reversed the circuit court's judgment and render judgment in favor of the City. View "City of Tupelo v. McMillin" on Justia Law 2016-04-14 state Mississippi Supreme Court of Mississippi Josiah D. Coleman 2014-CA-01378-SCT http://law.justia.com/cases/arkansas/supreme-court/2016/cv-15-894.html Hammerhead Contracting & Dev. v. Ladd 2016-04-14T08:30:31-08:00 2016-04-14T09:35:48-08:00 Dale Ladd hired Hammerhead Contracting & Development, LLC to build a house. After a dispute arose regarding the amount owed for the construction of Ladd's home, Brandon Holmes filed a Laborer's, Mechanic's, or Materialman's Lien on behalf of the LLC for the amount of $101,676, the additional amount Hammerhead asserted that Ladd owed. Ladd filed suit against Holmes to remove the lien. Hammerhead then filed an amended complaint against Ladd seeking judgment for the $101,676. The cases were consolidated. The circuit court (1) granted Ladd's motion to dismiss Hammerhead's complaint because of its failure to give the notice required by Ark. Code Ann. 18-44-115; (2) granted summary judgment in favor of Ladd on Ladd's complaint and ordered the lien canceled; and (3) found that Ark. Code Ann. 18-44-115(a)(4), which bars suit by a contractor who fails to provide statutory notice, is constitutional. The Supreme Court reversed, holding that the circuit court erred in finding that the direct-sales exception in Ark. Code Ann. 18-44-115(a)(8) to the residential preconstruction-notice requirement can never apply to a contractor. View "Hammerhead Contracting & Dev. v. Ladd" on Justia Law 2016-04-14 state Arkansas Arkansas Supreme Court Josephine L. Hart CV-15-894 http://law.justia.com/cases/delaware/supreme-court/2016/468-2015.html LTL Acres Limited Partnership v. Butler Manufacturing Co. 2016-04-11T11:00:26-08:00 2016-04-11T12:34:46-08:00 This litigation arose from the construction of a "Johnny Janosik" furniture store in Laurel. The Plaintiff-appellant LTL Acres Limited Partnership (LTL) was the owner of the Janosik Building. Defendant-appellee Butler Manufacturing Company (Butler) provided pre-engineered components which were used to build the roof and exterior walls. Defendant-appellee Dryvit Systems, Inc. (Dryvit) supplied a product used on the exterior finish of the walls, to protect and seal them. Dryvit warranted its product for ten years from the "date of substantial completion of the project." The building was completed in 2006. Unfortunately, the building had issues with water infiltration from the beginning. By February 2012, cladding began to crack and buckle. The water infiltration and delamination persisted through 2013 despite attempts to fix the issues. LTL brought this action in 2013, alleging breach of warranty, breach of contract, and negligence claims against Butler; and breach of warranty and breach of contract claims against Dryvit. The Superior Court granted summary judgment to both Butler and Dryvit on the grounds that the actions against both were barred by the applicable statute of limitations. It held that the action against Butler was barred by 10 Del. C. sec. 8127,which is a six year statute of limitations relating to alleged defective construction of an improvement to real property. After review, the Supreme Court concluded that summary judgment in favor of Butler was proper. The Superior Court ruled that LTL's action against Dryvit was barred by a four year statute of limitations set forth in 6 Del. C. sec. 2-725. Dryvit gave LTL a ten year express warranty. The Superior Court described the warranty as a "repair and replacement warranty" and reasoned that such a warranty cannot be one that extended to future performance. It therefore concluded that the statute of limitations for an action on the warranty expired not later than four years after the Dryvit product was tendered and applied to the building; that is, not later than four years after 2006. The Supreme Court concluded that grant of summary judgment in favor of Dryvit was inappropriate, and had to be reversed. The case was remanded for further proceedings. View "LTL Acres Limited Partnership v. Butler Manufacturing Co." on Justia Law 2016-04-11 state Delaware Delaware Supreme Court Vaughn 468, 2015 http://law.justia.com/cases/california/court-of-appeal/2016/b262310.html Blois Construction v. FCI/Fluor/Parsons 2016-03-23T12:30:21-08:00 2016-03-23T12:58:13-08:00 Pursuant to Public Contract Code section 7107, when a project owner pays a direct contractor the amount it had previously withheld as retentions, the direct contractor must pay its subcontractors their share of the retention within seven days or face penalties. The court concluded that, in this case, the decision by the owner to stop withholding future retentions and pay full progress payments to the contractor was not equivalent to a payment by the owner of past retentions under section 7107. Accordingly, the court concluded that the subcontractor is not entitled to late payment penalties under section 7107. The court affirmed the trial court's judgment. View "Blois Construction v. FCI/Fluor/Parsons" on Justia Law 2016-03-23 state California California Court of Appeal Frances Rothschild B262310 http://law.justia.com/cases/north-dakota/supreme-court/2016/20150197.html Welch Construction & Excavating, LLC v. Duong 2016-03-18T09:09:12-08:00 2016-03-18T10:18:04-08:00 Linh Duc Duong, doing business as Classy Nails, appealed after a bench trial awarded Welch Construction & Excavating, LLC, $30,825, plus interest, for the balance due on a construction contract. Welch Construction sued Duong, alleging the parties contracted for Welch Construction to remodel a vacant retail space in Kirkwood Mall into a Classy Nails salon for $92,225. Welch Construction alleged it completed the work and Duong failed to pay the balance of $30,825 due under the contract. Duong answered and counterclaimed, denying he owed an outstanding balance under the contract and alleging Welch Construction breached the contract by failing to remodel the retail space in a timely and workmanlike manner according to his specifications. Duong claimed he was entitled to a setoff against any balance owed under the contract for his damages caused by Welch Construction's failure to complete the work before Thanksgiving 2013 and failure to construct the salon according to his specifications. Duong sought lost profits and damages for repairing the work according to his specifications. After review, the Supreme Court concluded the district court did not clearly err in finding: (1) the parties did not orally contract for a specific completion date for the construction project; (2) Welch Construction did not unreasonably delay completion of the project; and (3) Duong failed to establish his damages for costs to repair and lost profits for Welch Construction's claimed failure to complete the project according to his specifications. View "Welch Construction & Excavating, LLC v. Duong" on Justia Law 2016-03-18 state North Dakota North Dakota Supreme Court Lisa K. Fair McEvers 20150197 http://law.justia.com/cases/nevada/supreme-court/2016/132-nev-adv-op-no-15.html Tom v. Innovative Home Sys. 2016-03-10T11:02:21-08:00 2016-03-10T15:02:33-08:00 Respondent, a contractor, and Appellant, a homeowner, entered into a contract under which Respondent agreed to install automation, sound, surveillance, and landscaping systems in Appellant's residence. Respondent did not have an electrical contractor's license when it bid the contract and began the work but did receive a license before it completed the work. When the parties disagreed on the performance of the contract, Appellant refused to tender further payment to Respondent, and Respondent filed a notice of lien against Appellant's residence. Respondent filed a complaint alleging breach of contract, breach of the covenant of good faith and fair dealing, foreclosure of notice of lien, and declaratory relief, alleging that an electrical license was not required for the work performed on Appellant's residence and that its lien was proper and perfected. The district court granted summary judgment in favor of Respondent. The Supreme Court reversed, holding that genuine issues of material fact existed regarding whether Respondent's work on Appellant's residence required a license and whether Respondent completed the contract in a workmanlike manner, thereby possibly negating Appellant's obligation to make final payment under the contract. Remanded. View "Tom v. Innovative Home Sys." on Justia Law 2016-03-10 state Nevada Supreme Court of Nevada Mark Gibbons 65419 66006 http://law.justia.com/cases/federal/appellate-courts/ca7/15-2406/15-2406-2016-03-04.html United Cent. Bank v. Davenport Estate LLC 2016-03-04T12:01:28-08:00 2016-03-04T13:03:53-08:00 In 2008, Mutual Bank (UCB's predecessor) made loans to the investors to purchase three properties and agreed to loan the investors $700,000 for repairs and renovations. The $700,000 was placed in escrow, but the parties did not enter into a written escrow agreement. Once the investors exhausted other resources on repairs, they requested the $700,000, but never received the money. In 2009, the FDIC shut down Mutual Bank for gross negligence. UCB acquired Mutual's loans and assets. The investors made repeated demands on UCB to release the $700,000 in escrow but did not receive the money. In 2010, UCB brought suit against the investors to foreclose on the properties and enforce related promissory notes and guarantees. The investors brought counterclaims, including a claim that UCB's refusal to release the escrow funds constituted a breach of contract. The district court dismissed, citing the Financial Institutions Reform, Recovery, and Enforcement Act, 12 U.S.C. 1823(e)(1)(A), and the Illinois Credit Agreement Act. The Seventh Circuit affirmed. The escrow agreement that forms the basis for the counterclaim tends to diminish the interests of the FDIC and its assignee UCB. Since the agreement was not properly memorialized in writing, the agreement does not meet the requirements of section 1823(e). View "United Cent. Bank v. Davenport Estate LLC" on Justia Law 2016-03-04 federal U.S. Court of Appeals for the Seventh Circuit Joel Martin Flaum 15-2406 http://law.justia.com/cases/alabama/supreme-court/2016/1141208.html Hoover General Contractors - Homewood, Inc. v. Key 2016-02-19T09:00:09-08:00 2016-02-19T20:00:21-08:00 Hoover General Contractors – Homewood, Inc. ("HGCH"), appealed a circuit court order denying its motion to compel arbitration of its dispute with Gary Key regarding work performed by HGCH on Key's house in Jasper after that house was damaged by a fire. Six months after Key sued HGCH asserting claims stemming from HGCH's work rebuilding Key's house after a fire, HGCH moved the trial court to compel Key to arbitrate those claims pursuant to an arbitration clause in the contract Key had entered into with HGCH. The trial court denied HGCH's motion to compel; however, that denial was error because Key failed to establish through substantial evidence that HGCH had waived its right to arbitration by substantially invoking the litigation process. Accordingly, the order entered by the trial court denying HGCH's motion to compel arbitration was reversed by the Supreme Court and the case remanded for the trial court to enter a new order compelling Key to arbitrate his claims ursuant to the terms of his contract with HGCH. View "Hoover General Contractors - Homewood, Inc. v. Key" on Justia Law 2016-02-19 state Alabama Supreme Court of Alabama Roy S. Moore 1141208 http://law.justia.com/cases/oregon/supreme-court/2016/s062791.html Shell v. Schollander Companies, Inc. 2016-02-19T08:06:38-08:00 2016-02-19T19:55:45-08:00 Defendant was a general contractor that builds "spec" houses (houses built without pre-existing construction contracts in anticipation of eventual sale to the public). On May 30, 2000, defendant and plaintiff entered into a purchase and sale agreement for a house. Although most of the construction had been completed, the agreement specified that defendant would make changes to the interior of the house. Specifically, defendant agreed to upgrade some of the flooring, install an air conditioning unit, and install a gas dryer in the laundry room. After defendant made those changes and the parties conducted a walk-through inspection, the sale closed on July 12, 2000. The primary question in this construction defect case was which of two statutes of repose applied when a buyer enters into a purchase and sale agreement to buy an existing home. Although each statute provided for a 10-year period of repose, the two periods of repose ran from different dates. One runs from "the date of the act or omission complained of;" the other ran from the date that construction is "substantial[ly] complet[e]." In this case, the trial court found that plaintiff filed her action more than 10 years after "the date of the act or omission complained of" but less than 10 years after the construction was "substantial[ly] complet[e]." The trial court ruled that the first statute, ORS 12.115(1), applied and accordingly entered judgment in defendant's favor. The Court of Appeals affirmed. After review of the parties' arguments on appeal, the Supreme Court found no reversible error in the Court of Appeals' decision and affirmed. View "Shell v. Schollander Companies, Inc." on Justia Law 2016-02-19 state Oregon Oregon Supreme Court Rives Kistler S062791 http://law.justia.com/cases/california/court-of-appeal/2016/c071197.html Picerne Construction v. Castellino Villas 2016-02-18T11:00:55-08:00 2016-02-18T14:05:01-08:00 Picerne Construction Corp. agreed to build an apartment complex for Castellino Villas. After construction started, Castellino refinanced the property, replacing the original lender with Bank of the West. Picerne subsequently claimed money due, recorded a mechanic's lien, and brought this action against Castellino and Bank of the West to foreclose on the lien. Following a bench trial, the trial court entered judgment in favor of Picerne. Castellino argued on appeal: (1) Picerne did not have a valid mechanic's lien because it did not record its claim within 90 days after substantial completion of the project; (2) the doctrine of judicial estoppel prevented Picerne from taking contrary positions at arbitration and at trial; (3) Picerne did not timely record a claim of mechanic's lien as to nine distinct buildings within the project; and (4) the trial court erred in calculating the amount of the lien. Bank of the West agreed that Picerne failed to timely record its claim of mechanic's lien. In addition, Bank of the West contends (5) that Picerne's complaint against it is time-barred because Picerne did not name Bank of the West as a defendant in the original complaint even though it was aware of facts indicating it had a claim against the bank. After review, the Court of Appeal concluded: (1) Picerne timely recorded its mechanic's lien; (2) Castellino failed to demonstrate the applicability of judicial estoppel; (3) the property constituted one residential unit; (4) the trial court overstated the principal sum due and failed to subtract the $115,453.50 setoff from the principal sum, but the other claims of error with regard to the lien amount have no merit; and (5) the action against Bank of the West was not time-barred because Picerne timely substituted Bank of the West in place of a Doe defendant when Picerne learned of the bank's interest in the property. The Court modified the judgment to provide that the mechanic's lien was in the amount of $2,416,855.06 and affirmed the judgment as modified. View "Picerne Construction v. Castellino Villas" on Justia Law 2016-02-18 state California California Court of Appeal Louis Mauro C071197 http://law.justia.com/cases/virginia/supreme-court/2016/150279.html William H. Gordon Assocs. v. Heritage Fellowship, United Church of Christ 2016-02-12T07:04:00-08:00 2016-02-14T20:18:06-08:00 Church entered into an engineering contract with Civil Engineer (Engineer) to design site plans for a rain tank system. Church entered into a contract with General Contractor (GC) for the construction of the rain tank. After GC installed the rain tank, the tank collapsed. Engineer designed and GC installed a different storm water management system, but Church refused to pay GC for installing the new storm water system. GC sued Church for payment, and Church counterclaimed against GC for breach of contract. Church filed a third-party claim against Engineer for repair and replacement costs it was found to owe GC because of the rain tank collapse. Church filed a separate suit against Engineer. The circuit court concluded that the rain tank collapse was the failure of Engineer, entered judgment for GC on its claims against Church, and awarded Church damages for delay and other damages associated with removing and replacing the rain tank. Engineer appealed. The Supreme Court (1) affirmed the judgment of the circuit court finding Church's claims timely and Engineer liable on Church's breach of contract claims; and (2) reversed the circuit court's judgment granting Church damages in the form of construction loan interest that was not incurred as a result of the breach of contract. Remanded. View "William H. Gordon Assocs. v. Heritage Fellowship, United Church of Christ" on Justia Law 2016-02-12 state Virginia Supreme Court of Virginia S. Bernard Goodwyn 150279 http://law.justia.com/cases/california/court-of-appeal/2016/b263398.html Hub Construction Specialties v. Esperanza Charities 2016-02-08T14:00:19-08:00 2016-02-08T19:23:05-08:00 Plaintiff, Hub Construction, supplied rebar and other materials to the general contractor on a construction project on property owned by defendant, Esperanza Charities. At issue is whether a mechanic's lien is invalid because the plaintiff lienholder did not strictly comply with the then-effective statutory requirement governing proof that the preliminary written notice was served on the defendant property owner by certified mail. Esperanza stipulated that the notice was served by certified mail, that the U.S. Postal Service website tracking certified mail items showed the notice was delivered, and that defendant actually received the notice. However, Esperanza contends that the lien is invalid because Hub has no return receipt, and the applicable statute at the time required proof that notice was served. The trial court dismissed the case. The court reversed, concluding that, while strict compliance with the notice provisions of the mechanic's lien law is required, the applicable precedents do not require or justify applying that rule to the statutory provisions governing proof that the required notice was properly given. A stipulation eliminates the need for proof. View "Hub Construction Specialties v. Esperanza Charities" on Justia Law 2016-02-08 state California California Court of Appeal Elizabeth A. Grimes B263398 http://law.justia.com/cases/federal/appellate-courts/ca6/14-6150/14-6150-2016-02-04.html Wall v. Circle C Constr., LLC 2016-02-04T09:30:53-08:00 2016-02-04T09:47:46-08:00 Over the course of seven years, Circle C, a contractor that built 42 warehouses at Fort Campbell Army base, paid some electricians about $9,900 less than the Davis-Bacon (40 U.S.C. 3142) wages specified in its contract with the Army. The government obtained a damages award of $763,000 under the False Claims Act, 31 U.S.C. 3729, arguing that all of the electrical work was "tainted" by the $9,900 underpayment and, therefore, worthless. The Sixth Circuit, reversed the damage award and remanded for entry of an award of $14,748. Actual damages are the difference in value between what the government bargained for and what the government received. The government bargained for the buildings and payment of Davis-Bacon wages. It got the buildings but not quite all of the wages. The shortfall was $9,916--the government's actual damages. That amount tripled is $29,748 (31 U.S.C. 3729(a)(1)(G)). Minus a $15,000 settlement payment, Circle C is liable for a total of $14,748. View "Wall v. Circle C Constr., LLC" on Justia Law 2016-02-04 federal U.S. Court of Appeals for the Sixth Circuit Raymond M. Kethledge 14-6150 http://law.justia.com/cases/federal/appellate-courts/ca8/14-3857/14-3857-2016-02-01.html Demien Construction Co. v. O'Fallon Fire Protection Dist. 2016-02-01T08:30:54-08:00 2016-02-01T18:56:03-08:00 Demien, the unsuccessful bidder for the construction of a new firehouse, filed suit against the District under 42 U.S.C. 1983, alleging that the District violated federal and state constitutional rights, as well as state law, in the bidding process. The district court dismissed the complaint. The court concluded that it need only determine whether Damien has Article III standing under Federal law and not whether Damien has standing under Missouri law. Determining that Demien has Article III standing, the court concluded that Demien has abandoned its claims under the First Amendment by failing to argue them before the district court, and that Demien failed to allege that the District deprived Demien of any entitlement, and so it failed to state a claim under the Fourteenth Amendment Due Process Clause. The court concluded that, under Missouri law, there is no property right to the lowest bidder, and standing to bring a state court claim of deprivation of property rights does not establish a protected property interest. In this case, the District stated that it may accept the lowest bid, but does not need to. Accordingly, the court affirmed the judgment. View "Demien Construction Co. v. O'Fallon Fire Protection Dist." on Justia Law 2016-02-01 federal U.S. Court of Appeals for the Eighth Circuit William Jay Riley 14-3857 http://law.justia.com/cases/federal/appellate-courts/ca7/14-3809/14-3809-2016-01-29.html Stark Excavating, Inc. v. Perez 2016-01-29T14:30:59-08:00 2016-01-29T15:11:54-08:00 Stark, an excavation and paving company, typically handles about 250 jobs per year in central and southern Illinois. The Occupational Safety and Health Administration (OSHA) issued Stark several citations at two worksites in 2008, following inspections. Another OSHA inspection, 17 days later, resulted in a citation for a willful excavation cave-in protection violation. The Secretary proposed penalties of $2000 for the eyewear violation, $35,000 for the spoil piles violation, and $70,000 each for the cave-in protections violations. An ALJ affirmed the citation for the eyewear violation and the $2000 penalty, affirmed the spoil piles violation and awarded a $20,000 penalty, and determined that the cave-in protection violations were serious violations rather than willful violations and imposed a $7,000 penalty for each, for a total penalty of $36,000. The Occupational Safety and Health Review Commission affirmed as to the spoil piles violation and the serious cave-in protection violation, but vacated the eyewear violation. As to the earlier cave-in protection violation, the Commission determined that it should be characterized as willful rather than serious and assessed a penalty of $60,000, for a total penalty of $87,000. The Seventh Circuit denied a petition for review. Stark failed to demonstrate that it had a safety policy that was effectively enforced. View "Stark Excavating, Inc. v. Perez" on Justia Law 2016-01-29 federal U.S. Court of Appeals for the Seventh Circuit ROVNER 14-3809 http://law.justia.com/cases/alabama/supreme-court/2015/1140504.html Dannelly Enterprises, LLC v. Palm Beach Grading, Inc. 2016-01-29T09:00:06-08:00 2016-01-30T04:59:55-08:00 Dannelly Enterprises, LLC ("Dannelly"), appealed a circuit court order granting a motion to compel arbitration filed by Palm Beach Grading, Inc. ("PBG"). In the fall of 2006, PBG entered into negotiations with Corvias Military Living, LLC, f/k/a Picerne Military Housing LLC; Picerne Construction/FRK, LLC; Rucker-Picerne Partners, LLC; and Rucker Communities, LLC (collectively, "the contractors"), to perform work on a project known as the Ft. Rucker RCI Family Housing, Munson Heights, Phase 1A, at Fort Rucker, Alabama. Apparently, in preparing to bid on the project, PBG contacted various subcontractors, including Dannelly, to get bids for various aspects of the project that PBG would be responsible for if it entered into an agreement with the contractors to complete the project. Although the work order issued by PBG stated that "[a] Sub-contract will be created by PBG for billing purposes," neither party submitted into evidence such a contract between PBG and Dannelly. PBG argued that Donnelly accepted benefits under existing contracts because Dannelly was hired by PBG to perform work on the project and was paid for the work it completed. The Supreme Court found, however, that PBG did not present any argument as to why it believed Dannelly was not simply operating under and benefiting from the agreement between PBG and Dannelly, which was memorialized by PBG's work order. The Court concluded that PBG failed to demonstrate that the arbitration provision in the master subcontract agreement applied to the third-party claims it asserted against Dannelly. Furthermore, there was a genuine issue of material fact as to whether Dannelly and PBG entered into PBG's standard subcontract agreement. The case was reversed and remanded to the circuit court for further proceedings. View "Dannelly Enterprises, LLC v. Palm Beach Grading, Inc." on Justia Law 2016-01-29 state Alabama Supreme Court of Alabama Tom Parker 1140504 http://law.justia.com/cases/illinois/supreme-court/2015/118139-0.html Henderson Square Condo. Ass'n v. LAB Townhomes, LLC 2016-01-28T08:01:52-08:00 2016-01-28T08:16:00-08:00 In 2011, Henderson Square Condominium Association sued, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code's prohibition against misrepresenting material facts in marketing and selling real estate, and breach of a fiduciary duty. The defendants were developers that entered into a contract with the city for a mixed use project, the Lincoln-Belmont-Ashland Redevelopment Project. Sales in the project had begun in 1996. The trial court dismissed, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that counts were time-barred under the Code of Civil Procedure (735 ILCS 5/13-214). The appellate court reversed. The Illinois Supreme Court affirmed. A condominium association generally has standing to pursue claims that affect the unit owners or the common elements. A question of fact remains as to whether defendants' failure to speak about construction deficiencies or to adequately fund reserves, coupled with earlier alleged misrepresentations, amounted to fraudulent concealment for purposes of exceptions to the limitation and repose periods. It is possible that minor repairs, along with the limited nature of water infiltration, reasonably delayed plaintiffs' hiring of professional contractors to open the wall and discover latent defects. The date when plaintiffs reasonably should have known that an injury occurred and that it was wrongfully caused was a question of fact. View "Henderson Square Condo. Ass'n v. LAB Townhomes, LLC" on Justia Law 2015-11-04 state Illinois Supreme Court of Illinois Robert R. Thomas 118139 http://law.justia.com/cases/idaho/supreme-court-civil/2016/42592.html Fagen v. Lava Beds Wind Park 2016-01-26T11:01:35-08:00 2016-01-26T12:19:13-08:00 In 2013, plaintiff Fagen, Inc. filed this lawsuit seeking to recover damages for work it had done in the construction of a wind park located in Bingham County. It named as defendants Lava Beds Wind Park, LLC; Exergy Development Group of Idaho, LLC; and XRG Development Partners, LLC (collectively "Defendants"); and Tabor Wind Farms, LLC. The district court entered an order dismissing Plaintiff's claims against Tabor pursuant to a stipulation of those parties. Plaintiff then filed an amended complaint against the remaining defendants, alleging causes of action to foreclose a mechanic's lien, to recover damages for breach of contract, and to recover damages in quantum meruit. Plaintiff moved for summary judgment seeking a judgment against Lava Beds and Exergy Development for breach of contract. In opposition to that motion, defendants filed two affidavits, which merely contained vague and conclusory allegations. The district court denied defendants' motion to continue the hearing on summary judgment. During the hearing, Plaintiff stated that it withdrew its claim to foreclose a mechanic's lien and its claims against XRG, which resolved these Defendants' motion for summary judgment. Defense counsel admitted that Lava Beds and Exergy Development had breached their contract with Plaintiff, but he argued that one of the affidavits showed a need for further discovery at least as to the issue of damages. The court took the motion for summary judgment under advisement, then granted Plaintiff's motion. It held that the conclusory affidavits submitted by Defendants were insufficient to create a genuine issue of material fact precluding summary judgment. On the same date, the court entered an order granting Defendants' motion for summary judgment. Lava Beds and Exergy Development's motion for reconsideration was denied, and they appealed. Finding no reversible error, the Supreme Court affirmed the trial court's decision. View "Fagen v. Lava Beds Wind Park" on Justia Law 2016-01-26 state Idaho Idaho Supreme Court - Civil Daniel T. Eismann 42592 http://law.justia.com/cases/idaho/supreme-court-civil/2016/42684.html Fagen v. Rogerson Flats Wind Park 2016-01-26T11:01:34-08:00 2016-01-26T12:19:09-08:00 This case was an appeal of an amended judgment awarding damages for breach of contract, court costs, and attorney fees in connection with a contract to construct five wind farms. Because the parties had stipulated to that portion of the judgment regarding the damages for breach of contract, those issues were not subject to appellate review. Because the only challenge to the award of attorney fees was raised for the first time on appeal, the Supreme Court did not consider it. The Court therefore affirmed the amended judgment and the award of costs and attorney fees on appeal. View "Fagen v. Rogerson Flats Wind Park" on Justia Law 2016-01-26 state Idaho Idaho Supreme Court - Civil Daniel T. Eismann 42684 http://law.justia.com/cases/wyoming/supreme-court/2016/s-15-0127.html Rogers v. Wright 2016-01-22T08:08:52-08:00 2016-01-23T15:29:28-08:00 Leon and Brenda Rogers purchased a home from Jeffrey Wright. The Rogers subsequently discovered several defects in the home and sued Wright, JWright Development, LLC, and JWright Companies, Inc. (collectively, the JWright defendants), alleging breach of contract, negligence, breach of warranty, and negligent and intentional misrepresentation. The district court granted summary judgment in favor of the JWright defendants. The Supreme Court reversed the district court's order on the negligence claim but otherwise affirmed, holding (1) issues of material fact existed regarding whether the builder of the Rogers' home breached its legal duty to build the home in a reasonable and workmanlike manner; and (2) the district court properly granted summary judgment in favor of the JWright defendants on the remainder of the Rogers' claims. View "Rogers v. Wright" on Justia Law 2016-01-22 state Wyoming Wyoming Supreme Court Kautz S-15-0127 http://law.justia.com/cases/mississippi/supreme-court/2016/2013-ca-02145-sct.html Stribling Investments, LLC v. Mike Rozier Construction Company, Inc. 2016-01-14T12:09:17-08:00 2016-01-14T16:53:58-08:00 Stribling Investments, LLC, sued Mike Rozier Construction Company, Inc., alleging negligence and negligent construction. The trial court granted Mike Rozier Construction's Motion for Summary Judgment and dismissed Stribling Investments' Complaint on the ground that Mike Rozier Construction did not owe a duty to Stribling Investments. Stribling Investments appeals. Holding that the trial court should have considered whether the "builder-vendor" rule applied to Mike Rozier Construction Company, the Supreme Court reversed. View "Stribling Investments, LLC v. Mike Rozier Construction Company, Inc." on Justia Law 2016-01-14 state Mississippi Supreme Court of Mississippi Josiah D. Coleman 2013-CA-02145-SCT http://law.justia.com/cases/maine/supreme-court/2016/2016-me-11.html Warren Constr. Group, LLC v. Reis 2016-01-14T09:01:41-08:00 2016-01-14T11:43:51-08:00 Plaintiff, a construction company, perfected a mechanic's lien on Defendants' property and filed a five-count complaint alleging that Defendants breached a contract with Plaintiff to renovate their house by failing to make any payments. The superior court granted summary judgment for Plaintiff on its breach of contract, Prompt Payment Act, and mechanic's lien claims. Defendants filed a motion to alter or amend judgment pursuant to Me. R. Civ. P. 59, arguing that there existed a genuine issue of material fact as to the time and manner of payment. The court denied the motion and later dismissed the remaining counts of Plaintiff's complaint. Defendants appealed, arguing that Plaintiff could not succeed on any of its claims because the parties' oral contract was unenforceable pursuant to the Home Construction Contracts Act. The Supreme Judicial Court affirmed, holding that Defendants failed to preserve this issue for appellate review. View "Warren Constr. Group, LLC v. Reis" on Justia Law 2016-01-14 state Maine Maine Supreme Judicial Court Ellen A. Gorman 2016 ME 11 http://law.justia.com/cases/federal/appellate-courts/ca10/15-1115/15-1115-2016-01-04.html Savant Homes v. Collins 2016-01-04T09:00:51-08:00 2016-01-04T11:16:02-08:00 Plaintiff Savant Home, Inc., a custom home designer and builder, held a registered copyright to a floor plan of a three-bedroom ranch house ("Anders Plan"). Savant built a model house embodying that plan in Windsor, Colorado ("Savant house"). In June 2009, Ron and Tammie Wagner toured the Savant house and hired builder Douglas Collins and his firm, Douglas Consulting, LLC (jointly, "Collins") to build a house. Collins, in turn, contracted with Stewart King to design the house. After Collins and Mr. King completed the Wagners' house, Ms. Wagner hired them to build a second house. Savant sued Collins for copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, and other claims, alleging defendants copied the Anders Plan by building the two houses. The district court granted Defendants summary judgment on two grounds: (1) Savant failed to offer evidence of inherent distinctiveness or secondary meaning and (2) no reasonable jury could find a likelihood of confusion. Savant appealed. After review, the Tenth Circuit agreed with the district court as to the first ground and therefore did not address the second. View "Savant Homes v. Collins" on Justia Law 2016-01-04 federal U.S. Court of Appeals for the Tenth Circuit Scott Milne Matheson, Jr. 15-1115 http://law.justia.com/cases/california/court-of-appeal/2015/h039055.html JMR Constr. Corp. v. Envtl Assessment & Remediation Mgmt., Inc. 2015-12-30T15:00:26-08:00 2015-12-30T15:16:28-08:00 The Army Corps of Engineers retained JMR as general contractor for construction of a dental clinic at the Presidio of Monterey. JMR entered into separate electrical and plumbing subcontracts with EAR. SureTec issued separate bonds guaranteeing EAR's performance. While the project was ongoing, JMR communicated with EAR about alleged delays, deficient and late submittals, and improper work, and retained certain funds otherwise due EAR. After the project was completed, JMR sued EAR and SureTec for breach of contract and for foreclosure of the bonds. EAR filed a cross-complaint to recover retention funds withheld under the subcontracts. JMR was awarded $315,631, which included an offset for retention funds. The court held that JMR was entitled to attorney fees for its successful defense of the cross-complaint; awarded JMR $90,644.07 in expert witness fees, concluding that JMR's recovery exceeded its $375,000 pretrial settlement offers. The court of appeal affirmed the judgment but reversed the award of expert fees. The court upheld utilization of the Eichleay method to calculate extended home office overhead damages; use of the modified total cost method of calculating JMR's disruption and delay damages; and finding SureTec liable under the bonds because formal notice of default was not a condition precedent to recovery. View "JMR Constr. Corp. v. Envtl Assessment & Remediation Mgmt., Inc." on Justia Law 2015-12-30 state California California Court of Appeal Miguel Márquez H039055 http://law.justia.com/cases/north-dakota/supreme-court/2015/20150057.html Arrow Midstream Holdings, LLC v. 3 Bears Construction, LLC 2015-12-29T13:06:01-08:00 2015-12-29T14:13:47-08:00 Arrow Midstream Holdings, LLC and Arrow Pipeline, LLC (collectively "Arrow") appealed, and Tesla Enterprises, LLC ("Tesla") cross-appealed, a judgment dismissing without prejudice for lack of jurisdiction its action against 3 Bears Construction, LLC and Tesla for breach of contract and a declaration that Tesla's pipeline construction lien was invalid. In 2013, Arrow hired 3 Bears to be the general contractor for the construction of a pipeline located on a right-of-way easement acquired by Arrow from the Bureau of Indian Affairs over Indian trust land on the Fort Berthold Indian Reservation. 3 Bears entered into a subcontract with Tesla to supply materials and labor for the construction. 3 Bears was owned by two members of the Three Affiliated Tribes ("Tribe") and was certified under the Tribal Employment Rights Ordinance ("TERO"). 3 Bears claimed Arrow was a covered employer who was required to comply with TERO rules. After the pipeline was completed, a dispute arose between 3 Bears and Tesla concerning amounts Tesla claimed it was owed by 3 Bears for work Tesla performed. In mid-2014, Tesla sent Arrow a notice of right to file a pipeline lien under N.D.C.C. ch. 35-24. Tesla recorded the pipeline lien against Arrow in the Dunn County recorder's office in June 2014. In July 2014, Arrow commenced this action in state district court challenging the validity of the pipeline lien, seeking indemnification, and claiming 3 Bears breached the parties' contract. In August 2014, 3 Bears moved to dismiss for lack of subject matter jurisdiction. In November 2014, 3 Bears filed a complaint against Tesla and Arrow in Fort Berthold Tribal Court. 3 Bears sought a declaration that the pipeline lien was invalid, alleged Arrow had breached the master service contract, and requested an award of damages. In December 2014, the state district court agreed with 3 Bears' argument that it lacked subject matter jurisdiction over the lawsuit. The court concluded "exercising jurisdiction over this action under the circumstances presented here would infringe upon Tribal sovereignty." The court further concluded, "at the very least, Arrow and Tesla, as a matter of comity, should be required to exhaust their tribal court remedies before this Court exercises jurisdiction." The court dismissed the action "without prejudice to allow any of the parties to re-open the case without payment of another filing fee should it become necessary for purposes of enforcing the Tribal Court action or for any other reason." After review of the matter, the North Dakota Supreme Court reversed and remanded, concluding the district court had jurisdiction over this lawsuit. View "Arrow Midstream Holdings, LLC v. 3 Bears Construction, LLC" on Justia Law 2015-12-29 state North Dakota North Dakota Supreme Court Gerald W. VandeWalle 20150057 http://law.justia.com/cases/california/court-of-appeal/2015/b258860.html United Riggers & Erectors v. Coast Iron & Steel 2015-12-18T15:00:26-08:00 2015-12-18T17:28:31-08:00 This case arose out of a payment dispute between Coast, a contractor, and United, Coast's subcontractor. On appeal, United challenged the trial court's finding in favor of Coast, arguing that the trial court erred in finding that Coast was not liable for extra payments, as well as for failing to assess penalties and attorney's fees against Coast for its delay in forwarding the retention payments. The court held that, pursuant to Civil Code section 8814, subdivision (c), a contractor is entitled to withhold a retention payment only when there is a good faith dispute regarding whether the subcontractor is entitled to the full amount of the retention payment. Accordingly, the court reversed the judgment of the trial court as to this issue. On remand, the trial court is directed, pursuant to section 8818, to award United penalties. Consequently, the court reversed the award of attorney fees as to the retention payments and remanded the issue. The court need not reach the merits of the breach of contract claims because United has failed to show that the trial court erred in its determination that United failed to prove damages. Accordingly, the court affirmed in part, reversed in part, and remanded. View "United Riggers & Erectors v. Coast Iron & Steel" on Justia Law 2015-12-18 state California California Court of Appeal Frances Rothschild B258860 http://law.justia.com/cases/mississippi/supreme-court/2015/2014-ca-01615-sct.html Lampkin Construction Co., Inc. v. Sand Specialties & Aggregates, LLC 2015-12-17T12:01:52-08:00 2015-12-17T13:20:55-08:00 Sand Specialties & Aggregates, LLC, and Lampkin Construction Company entered into a contract under which Sand Specialties was to sell certain sand mining equipment to Lampkin Construction. The equipment was delivered, but the full contract price was never paid. Sand Specialities filed suit against Lampkin Construction for replevin and damages. After a trial, the judge entered a directed verdict in favor of Sand Specialities as to ownership of the equipment, and the jury awarded Sand Specialities damages. Lampkin Construction appealed, arguing that the trial court misinterpreted the terms of the sales contract, and that the trial court made several prejudicial errors, including allowing the jury to consider evidence of damages for missing equipment. Finding no reversible errors, the Supreme Court affirmed the judgment against Lampkin. View "Lampkin Construction Co., Inc. v. Sand Specialties & Aggregates, LLC" on Justia Law 2015-12-17 state Mississippi Supreme Court of Mississippi Josiah D. Coleman 2014-CA-01615-SCT http://law.justia.com/cases/california/court-of-appeal/2015/c074521.html DeSilva Gates Construction, LP v. Dept. of Transportation 2015-12-14T10:00:28-08:00 2015-12-14T14:14:21-08:00 The California Department of Transportation (CalTrans) and Papich Construction Company, Inc. appealed a trial court's issuance of a writ of mandate to vacate the award of a public works contract to Papich. DeSilva Gates Construction submitted the second-lowest bid (the first bidder was disqualified for a non-responsive bid), and included the names and description of work by all subcontractors slated to perform work exceeding one-half of one percent of the bid amount. DeSilva later sent a letter to CalTrans noting DeSilva had inadvertently supplied CalTrans with additional information on the subcontractor list "above and beyond what was required." DeSilva explained it had not listed "All Steel Fence" as a subcontractor in its bid because the value of the bid items it would perform was less than one-half of one percent of the bid and the information for All Steel Fence (submitted within 24 hours of the bid) was additional information that was not required. Papich challenged DeSilva's bid as having changed the subcontractor list. CalTrans rejected DeSilva's bid as nonresponsive. DeSilva protested CalTrans's determination that its bid was nonresponsive and protested Papich's bid. The trial court granted the writ on grounds CalTrans erroneously rejected DeSilva's bid, and erred by awarding the contract to Papich despite Papich's failure to comply with a material requirement of the information for bids. On appeal, CalTrans and Papich argued DeSilva's bid was nonresponsive. Appellants also argued CalTrans had discretion to waive Papich's mistake in failing to acknowledge the addendum to the information for bids. After review, the Court of Appeal concluded the trial court did not err. DeSilva's disclosure of a subcontractor performing work amounting to only one-tenth of one percent of the total value of the contract was not required by the Public Contract Code or CalTrans's information for bids. The additional information was accurate, albeit unnecessary, and did not render DeSilva's bid nonresponsive. By contrast, CalTrans initially declared Papich's bid to be nonresponsive and then waived Papich's mistake and determined the bid to be responsive. The Court concluded CalTrans abused its discretion by awarding Papich the contract. Accordingly, the Court affirmed the trial court's issuance of the writ of mandate. View "DeSilva Gates Construction, LP v. Dept. of Transportation" on Justia Law 2015-12-14 state California California Court of Appeal Andrea Lynn Hoch C074521