Residential Contractors, Be Sure to Have these Clauses in Your Contracts
December 23, 2023 —
Christopher G. Hill - Construction Law MusingsI have often “mused” on the need to have a good solid construction contract at the beginning of a project. While this is always true, it is particularly true in residential contracting where a homeowner may or may not know the construction process or have experience with large scale construction. Often you, as a construction general contractor, are providing the first large scale construction that the homeowner has experienced. For this reason, through meetings and the construction contract, setting expectations early and often is key.
As a side note to this need to set expectations, the Virginia Department of Professional and Occupational Regulation (DPOR) and the Virginia General Assembly require certain clauses to be in every residential construction contract. DPOR strictly enforces these contractual items and failure to put them in your contracts can lead to fines, penalties and possibly even revocation of a contractor’s license.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Traub Lieberman Attorneys Lisa M. Rolle, Eric D. Suben, and Justyn Verzillo Secure Dismissal of All Claims in a Premises Liability Case
November 16, 2023 —
Lisa M. Rolle, Eric D. Suben & Justyn Verzillo - Traub LiebermanOn an appeal of an order denying Defendant’s motion to dismiss the complaint in a slip-and-fall action commenced in Kings County Supreme Court, Traub Lieberman attorneys Lisa M. Rolle, Eric D. Suben, and Justyn Verzillo successfully secured dismissal of all claims by the Appellate Division, Second Department, on behalf of Traub Lieberman’s client.
The lawsuit sought to recover damages arising out of injuries the Plaintiff allegedly sustained when she slipped and fell in the shower of a rental property owned by the Defendant, a limited liability company. Plaintiff alleged that the subject shower was defective, and the Defendant negligent, based on the absence of non-slip surfacing and grab bars in the shower. Aside from premises liability (negligence), Plaintiffs asserted eight other causes of action, including gross negligence, breach of warranty of habitability, intentional infliction of emotional distress, negligent infliction of emotional distress, alter-ego liability, loss of consortium, and for declaratory judgment.
The judge in Supreme Court denied Traub Lieberman’s motion to dismiss on behalf of Defendant, citing as the sole reason that the affidavits submitted with the motion were unsigned, and ignoring Traub Lieberman’s arguments pointing out the glaring facial deficiencies of Plaintiff’s pleading and that the signed affidavits were in fact submitted before the return date.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman,
Eric D. Suben, Traub Lieberman and
Justyn Verzillo, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Suben may be contacted at esuben@tlsslaw.com
Mr. Verzillo may be contacted at jverzillo@tlsslaw.com
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The Sounds of Silence: Pennsylvania’s Sutton Rule
January 29, 2024 —
William L. Doerler - The Subrogation StrategistIn Westminster Am. Ins. Co. a/s/o Androulla M. Toffalli v. Bond, No. 538 EDA 2023, 2023 Pa. Super. LEXIS 626, 2023 PA Super 272, the Superior Court of Pennsylvania (Appellate Court) recently discussed the impact of silence on the Sutton Rule with respect to the landlord, Androulla M. Toffalli (Landlord), securing insurance. After holding that the tenant, Amy S. Bond (Bond) t/a Blondie’s Salon – who leased both commercial and residential space in the building pursuant to written leases – was not an implied “co-insured” on Landlord’s insurance policy, the Appellate Court reversed the decision of the trial court.
In this case, Bond rented the ground floor of a property located in Monroe County pursuant to a written commercial lease (Commercial Lease) and operated Blondie’s salon out of the leased location. In addition, Bond rented and lived in a second-floor apartment pursuant to a residential lease (Residential Lease). Both leases required the tenants (Tenants) to obtain insurance for personal items. The leases, however, did not require Landlord to obtain fire insurance for the property.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Government Claims Act Does Not Apply to Actions Solely Seeking Declaratory Relief and Not Monetary Relief
March 25, 2024 —
Garret Murai - California Construction Law BlogPerhaps it should come as no surprise, but public entities get special treatment under the law, and when filing a claim against a public entity, in most cases, a claimant is required to file a claim with the public entity before filing suit under the Government Claims Act (Gov. Code §810 et seq.).
But, as the next case demonstrates, that’s not always the case. In Stronghold Engineering Incorporated v. City of Monterey, 96 Cal.App.5th 1203 (2023), the 6th District Court of Appeals examined whether a public works contractor that alleged an extended overhead claim was required to file a Government Claims Act claim before filing suit when its initial complaint was limited to a claim for declaratory relief.
The Stronghold Case
In December 2015, general contractor Stronghold Engineering Incorporated entered into a construction contract with the City of Monterey for the renovation of the City’s conference center and an adjacent city-owned plaza. The construction contract provided that any modification to the construction contract had to be approved by the City through a written change order. No surprise there.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Don’t Spoil Me: Oklahoma District Court Rules Against Spoliation Sanctions
January 08, 2024 —
Kyle Rice - The Subrogation StrategistIn Okla. Farm Bureau Mut. Ins. Co. v. Omega Flex, Inc., No. CIV-22-18-D, 2023 U.S. Dist. LEXIS 197755, the United States District Court for the Western District of Oklahoma (the District Court) determined spoliation sanctions were not warranted after a home was demolished for repair following a joint scene examination.
The insurer, Oklahoma Farm Bureau Mutual Insurance Company (Insurer) provided a policy of insurance to Michael and Sondra Diel (the Diels). On July 11, 2020, the Diels’ home was struck by lightning and their attic caught fire. Following the loss, Insurer retained both counsel and fire origin and cause experts to inspect the Diels’ property. Insurer’s counsel informed in-house counsel for Omega Flex, Inc. (Omega Flex) via a letter dated July 14, 2020, that a preliminary investigation indicated the fire may have been caused by an Omega Flex product—specifically, TracPipe Corrugated Stainless Steel Tubing (CSST). Insurer’s counsel invited Omega Flex to inspect the property, noting: “It is anticipated that the loss will exceed $300,000” and stating that any inspection “must be completed during the next two weeks.
At that time, the homeowner will proceed with demolition to rebuild.” (Emphasis added).
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com
The Requirement to State a “Sum Certain” No Longer a Jurisdictional Bar to Government Contract Claims
November 13, 2023 —
Marcos R. Gonzalez - ConsensusDocsThe Boards of Contract Appeals, Court of Federal Claims, and the Federal Circuit have long held that the elements of a claim under the Contract Disputes Act (“CDA”) to be jurisdictional. Those requirements are as follows:
(a) Claims generally.–
(1) Submission of contractor’s claims to contracting officer.–Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.
(2) Contractor’s claims in writing.—Each claim by a contractor against the Federal Government relating to a contract shall be in writing.
(3) Contracting officer to decide Federal Government’s claims.–Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.
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Marcos R. Gonzalez, Peckar & Abramson, P.C.Mr. Gonzalez may be contacted at
mgonzalez@pecklaw.com
Construction Litigation Roundup: “Stuck on You”
March 04, 2024 —
Daniel Lund III - LexologyA “contract of adhesion” is referred to as a standard form contract – usually preprinted – “prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Yet, it is not the nature of the contract alone which determines its enforceability, but, instead, “whether a party truly consented to all of the printed terms.”
A Louisiana plaintiff fighting a forum selection clause in a construction contract sought to have the clause nullified, urging that the clause was “buried” in the agreement and in small font, arguing also that the contractor had “superior bargaining position at the time of entering into the contract… because [plaintiff] needed to repair the hurricane damage” to his home as soon as possible.
In response, the contractor urged that the contract was not executed under rush conditions, and that, in any event, the contract was only two pages long – and the forum selection clause was not hidden and was in the same font as all of the other provisions in the contract.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Florida's New Pre-Suit Notification Requirement: Retroactive or Prospective Application?
February 05, 2024 —
Holly A. Rice - Saxe Doernberger & Vita, P.C.Florida’s newly formed Sixth District Court of Appeal (“Sixth DCA”) recently certified conflict with Florida’s Fourth District Court of Appeal on the issue of retroactive application of the pre-suit notice requirement contained in Florida Statute §627.70152.1 Earlier this year, the Fourth District Court of Appeal (“Fourth DCA”) held that the pre-suit notice provision applies retroactively, meaning, it applies to all suits filed after July 1, 2021, regardless when the insurance policy was issued.2 The Sixth DCA, in
Hughes v. Universal Property & Casualty Insurance Company,3 directly rejected the Fourth DCA’s interpretation and instead found a retroactive application of the pre-suit notice to be unconstitutional under Florida law. Prior to the Fourth DCA’s ruling, most trial courts had found no retroactive application for the pre-suit notice provision.4
In August 2021, shortly after Florida Statutes Section 627.70152 went into effect on July 1, 2021, Rebecca Hughes (“Hughes”) sued Universal Property & Casualty Insurance Company (“Universal Property”) for breach of contract after Universal Property denied her insurance claim. Hughes did not file a pre-suit notice under Section 627.70152. Universal Property moved to dismiss based on Hughes’ failure to file the pre-suit notice, arguing that the pre-suit notice requirement applies to all lawsuits filed after July 1, 2021, even if the claimant’s insurance policy was issued before the statute’s effective date. The trial court agreed with Universal Property and dismissed the lawsuit.
Read the full story...Reprinted courtesy of
Holly A. Rice, Saxe Doernberger & Vita, P.C.Ms. Rice may be contacted at
HRice@sdvlaw.com