Fraud Claims and Breach Of Warranty Claims Against Manufacturer
March 04, 2024 —
David Adelstein - Florida Construction Legal UpdatesA recent case touches upon two issues that are noteworthy when considering fraud claims and breach of warranty claims against a manufacturer. Below contains a discussion on these claims.
Independent Tort Doctrine
“Florida’s independent tort doctrine provides that a party may not recover in tort for a contract dispute unless the tort is independent of any breach of contract.” MidAmerica C2L Inc. v. Siemens Energy, Inc., 2024 WL 414620, *6 (M.D.Fla. 2024). This means tort allegations and claims MUST be separate and distinct from performance under the contract. Id. (citation omitted).
In MidAmerica C2L, a plaintiff sued a manufacturer relating to sophisticated equipment for a coal gasification plant. The parties entered into different agreements for the equipment and a license where the plaintiff could use the manufacturer’s patented technology for its coal gasification plants. A dispute arose and the plaintiff sued the manufacturer under various legal theories. The manufacturer moved for summary judgment.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Recent Florida Legislative Changes Shorten Both Statute of Limitation ("SOL") and Statute of Repose ("SOR") for Construction Defect Claims
March 19, 2024 —
Holly A. Rice - Saxe Doernberger & Vita, P.C.The Florida Legislature and Governor DeSantis passed Senate Bill 360, effective April 13, 2023, which imposes significant changes to Florida’s statute of limitation (“SOL”) and statute of repose (“SOR”) periods prescribed in Florida Statute § 95.11. In short, the SOL and SOR periods will commence earlier and run earlier, which in effect shortens the time to bring a construction defect claim on both ends of the timeline.1
These changes will have positive impacts for general contractors who may save on insurance premiums with shorter completed operations tails. In other words, the timeframe within which contractors are at risk of being sued for construction-related errors is significantly reduced under the new version of the statute. Owners and developers, on the other hand, may feel that the increased pressure of uncovered construction defects necessitates the filing of lawsuits sooner than they might have otherwise filed. Collectively, all parties involved will certainly have to consider when and how to place their carriers on notice of claims or potential claims and, coupled with Florida’s sweeping changes to fee shifting statutes, insured parties may see more coverage denials which, in turn, could lead to more coverage actions.2
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Holly A. Rice, Saxe Doernberger & Vita, P.C.Ms. Rice may be contacted at
HRice@sdvlaw.com
Federal Regulatory Recap: A Summary of Recent Rulemaking Actions Taken or Proposed Affecting the Energy Industry
December 16, 2023 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law BlogIt is clear that these have been busy months for federal environmental regulators, especially those working at EPA, the federal departments and the Council on Environmental Quality. Even the Department of Agriculture has found itself coping with greenhouse gases (GHG) issues in its administration of the laws applicable to agriculture and the national forests. The ambitious scope of the current “all of government” approach may be discerned after learning how many disparate federal agencies are employed in implementing this policy. So many actions have been proposed or completed that some state officials are experiencing “comment fatigue” because they are being overwhelmed by the scope, size, and complexity of these federal initiatives. The Environmental Protection Agency is, of course, at the forefront of these actions and activities, as described below.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Replacement of Gym Floor Due to Sloppy Paint Job is Not Resulting Loss
January 02, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court granted the insurer's motion for summary judgment finding damage to the gym floor due to a poor paint job was not a resulting loss. Bob Robinson Commercial Flooring, Inc. v. RLI Ins,. Co., 2023 U.S. Dist. LEXIS 196105 (D. Ark. Nov. 1, 2023).
Bob Robinson Commercial Flooring (BRCF) submitted a bid to the general contractor, Nabholz Construction Corporation, to install a vinyl athletic floor and striping at a middle school. The job also included the painting of a "Wildcat" logo the main gym floor. Therefore, BRCF's job was to install floors with proper painting and striping. Robert Liles and Robert Lines Parking Lot Services was the subcontractor hired to do the painting and striping. BRCF did not supervise or inspect Liles' work while it was ongoing.
Nabholz informed BRCF that there were problems with the floor painting, including crooked lines, incorrect markings, misplacement of the three point lines for the basketball surface, drips, smudges, etc. The gym floor was eventually rejected due to the nature of the vinyl flooring, once primer and paint were applied, the paint could not be removed and repainted. BRCF had to hire a new subcontractor to remove the flooring, install new flooring and then paint new lines. The cost for removal and replacement was $134,188.95.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Exploring the Future of Robotic Construction with Dr. Thomas Bock
November 06, 2023 —
Aarni Heiskanen - AEC BusinessIn
this episode of the AEC Business podcast, host Aarni Heiskanen interviews Dr. Thomas Bock, a renowned expert in construction robotics. With 45 years of experience in the field and multiple books on the topic, Thomas shares his insights and expertise.
Tune in to learn more about his professional journey and the advancements in construction robotics.
An unconventional professional journey
Thomas’s journey in construction robotics began when he built his own house as a student. The labor-intensive process led him to explore the potential of robotics in construction. He studied civil engineering and architecture simultaneously, gaining a multidisciplinary understanding of the field. His interest in robotics grew when he saw the first welding robot at a Daimler-Benz factory in Stuttgart. This encounter sparked his curiosity and led him to question why robots couldn’t be used for assembling walls and buildings.
The Illinois Institute of Technology (IIT) in Chicago was one of Thomas’s destinations during his journey. There he studied under professors who had worked on iconic architectural projects. He also learned about Japanese companies like Toyota and Sekisui, which were producing houses using innovative methods. Intrigued by these advancements, Thomas secured a scholarship to study in Japan, where he discovered that the country was ahead of what he had known in the United States.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Competitive Bidding Statute: When it Applies and When it Does Not
April 15, 2024 —
Mason Fletcher - Ahlers Cressman & Sleight PLLCThe University of Washington (UW), a public university, aimed to secure a real estate developer for a new building on its campus. The proposal involved an 80-year ground lease (the “Lease”), and developers submitted bids. The selected developer would demolish an existing building, construct a new one, own it during the Lease at its own cost, and UW would lease back a portion, with ownership reverting to UW at the Lease’s end. Alexandria Real Equities, Inc. (ARE) was a finalist but ultimately was not selected, and the Lease was awarded to Wexford Science and Technology, LLC (Wexford). As a result, ARE filed suit against UW asserting three claims: 1) UW lacked authority to execute the Lease, 2) UW didn’t follow required competitive bidding procedures, and 3) UW’s developer selection process was arbitrary and capricious. None of these claims were successful and ARE appealed.
Division II of the Washington Court of Appeals affirmed in Alexandria Real Estate Equities Inc. v. Univ. of Wash., __ Wn. App. __, 539 P.3d 54 (2023), a published decision. The Court concluded, based on the facts in that case, that because construction was not publicly funded, UW did not have to follow competitive bidding requirements that were laid out in a statute relevant to state universities. Still, the Court applied the “bright-line cutoff point” that prohibits disappointed bidders from challenging an award once a contract has been executed. See Dick Enterprises, Inc. v. Metro. King County, 83 Wn. App. 566, 572, 922 P.2d 184 (1996).
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Mason Fletcher, Ahlers Cressman & Sleight PLLCMr. Fletcher may be contacted at
mason.fletcher@acslawyers.com
Breach of an Oral Contract and Unjust Enrichment and Implied Covenant of Good Faith and Fair Dealing
December 23, 2023 —
David Adelstein - Florida Construction Legal UpdatesIn an ideal world, parties would have written contracts. In reality, parties should endeavor to ensure every transaction they enter into is memorialized in a written contract. This should not be disputed. Of course, written contracts are not always the case. Parties enter transactions too often whereby the transaction is not memorialized in a clean written agreement. Rather, it is piecemealing invoices, or texts, or discussions, or proposals and the course of business. A contract can still exist in this context but it is likely an oral contract. Keep in mind if there is a dispute, what you think the oral contract says will invariably be different than what the other party believes the oral contract says. This “he said she said” scenario gets removed, for the most part, with a written contract that memorializes the written terms, conditions, and scope.
A recent federal district court opinion dealt with the alleged breach of an oral contract. In Movie Prop Rentals LLC vs. The Kingdom of God Global Church, 2023 WL 8275922 (S.D.Fla. 2023), a dispute concerned the fabrication and installation of a complex, modular stage prop to be used for an event. But here lies the problem. The dispute was based on an oral contract and invoices. The plaintiff, the party that was fabricating the modular stage prop, sued the defendant, the party that ordered the stage prop for the event, for non-payment under various claims. The defendant countersued under various claims.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Aarow Equipment v. Travelers- An Update
January 16, 2024 —
Christopher G. Hill - Construction Law MusingsPreviously here at Musings, I discussed the application of pay if paid clauses and the Miller Act. The case that prompted the discussion was the Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co. case in which the Eastern District of Virginia Federal Court determined that a “pay if paid” clause coupled with a proper termination could defeat a Miller Act bond claim. However, as I found out a couple of weeks ago at the VSB’s Construction Law and Public Contracts section meeting, the 4th Circuit Court of Appeals reversed and remanded this case in an unpublished opinion (Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co.)
In it’s opinion, the 4th Circuit looked at some of the more “interesting” aspects of this case. One of these circumstances was that Syska (the general contractor) directed Aarow to construct sedimentary ponds and other water management measures around the project (the “pond work”), which both agreed was outside of the scope of the work defined in their subcontract. Syska asked that the government agree to a modification of the prime contract and asked Aarow to wait to submit its invoice for the pond work until after the government issued a modification to the prime contract and Syska issued a change order to the subcontract.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
