Category: Damages Claims

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Disgorgement Liability in CA for Unlicensed Contractors Runs One Year from Completion or Cessation

In a very recently published case dealing with issues of first impression in California, here, the Second Appellate District in Los Angeles determined that the disgorgement penalty under BPC 7031(b) triggers a one-year statute of limitations given that it is a penalty, and the cause of action accrues from either the completion or cessation of … Continue Reading

An Owner’s Guide to Accessibility Claims in Washington

When owners engage architects and accessibility consultants to design their projects, they naturally expect good design, but they must also be sure the design provides all users with the practical ability to use and enjoy the end result. Civil rights acts such as the ADA and Fair Housing Act were enacted to provide certain protected … Continue Reading

Oregon Court of Appeals Broadens “Four Corners” Rule in Construction Defect Insurance Coverage Cases

In a recent Oregon Court of Appeals decision, the court likely eased the burden for contractors seeking a defense under insurance policies in which they have been named as an additional insured. In my latest article for the Daily Journal of Commerce, I examine the decision, which expands upon a 2016 Oregon Supreme Court ruling … Continue Reading

Remember the Statute of Limitations

Contract claims and negligence claims are subject to different statutes of limitations, and if you are a participant in a construction project and believe you have been injured by another, it is important to understand what claims you may have, what statute of limitations applies to those claims, and when the limitations period may run … Continue Reading

Important Lessons from Record-Setting Settlement in Building Collapse Case

Having lived in Philadelphia in 2013 when the four-story “Hoagie City” building collapsed during demolition and toppled the neighboring Salvation Army thrift store, killing seven people and injuring 12 others, I closely followed the recent civil trial that resulted in a $227 million settlement of the plaintiffs’ personal injury and wrongful death claims—a reported record … Continue Reading

Alter Ego: The $5MM personal danger of neglecting corporate formalities and utilizing substandard building materials

Many building developers utilize a single purpose entity limited liability company (an “LLC”) to purchase and develop property, such as an apartment complex, a subdivision, or a shopping center. Generally, an LLC’s debts, whether incurred or judicially imposed, belong only to the LLC, not to its members.  However, an LLC’s individual member may be subject … Continue Reading

When “Non-Binding” LOIs Become Binding

A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed … Continue Reading

Idaho Reads Force Majeure Clause Broadly as Written

In a ruling supporting common sense, the Idaho Supreme Court ruled that a county could not avoid the application of a broad force majeure clause in its development agreement with a developer based on the county’s denial of the rezoning required for the very development. The key facts in Burns Concrete, Inc. v. Teton County, … Continue Reading

Concerns over California’s Increased Earthquakes? Landlords and Developers Should Manage Their Risks Now

During the last month or two there has been a rise of news reports regarding potential earthquakes in California at a greater magnitude than in recent history:  see here and here.  These risks have even been reported recently in a London newspaper.  While the unusual Southern California “big one” warning is now past, the risk has … Continue Reading

“All Risk” Coverage Is Not Equal to “All Loss” Coverage Under Customary Provisions in California Builder’s Risk Policies

A common insurance question asked by our owner/developer clients when they discover that their completed project has defects is whether their own insurance will cover the cost to fix the defect or any damage from the defect.  While trying hard not to sound like the proverbial lawyer, we often have to say “it depends.”  What … Continue Reading

On Guard: A Look at Subcontractor Default Insurance

Whether you call it SDI or SubGuard, subcontractor default insurance is yet another consideration for public and private project owners as they look at protection from subcontractor default.  But what exactly is this relatively new option and when is it most appropriate?  In my recent article for the Daily Journal of Commerce, I discuss SDI, … Continue Reading

Considerations Before and After the Government Comes Knocking (or Preparing for Condemnation)

The status of infrastructure throughout the United States, and the need to expand and rebuild facilities, is often in the news. Funding these improvements remains a challenge, but when funding is identified, the government often has to acquire private property. If the government and the property owner are unable to reach agreement, the acquisition may … Continue Reading

No Crane Trespassing! Swingway Easements Make Good Neighbors

Earlier this year, my colleague Eric Grasberger authored a blog post about a crane collapse in Lower Manhattan.  In that post, he mentioned that neighboring landowners may seek to prevent cranes from intruding into the airspace above their property.  Contractors and owners alike are often surprised to learn that a crane swinging over adjacent property … Continue Reading

Hate Negotiating? Think It is a Waste of Time? Think Again. Seven Habits of Successful Negotiators

If you dislike negotiating, you are not alone. But successful negotiators understand and embrace the opportunities that a negotiation presents.  In my recent article for the Daily Journal of Commerce, I discuss seven habits of successful negotiators that can help you successfully conclude your construction-related negotiations. Read the full article here.   “Hate Negotiating? Think It … Continue Reading

NYC Crane Collapse Likely to Fuel Crane Objections and Easements

On Friday, February 5, one man died and three were injured when a 565-foot crane toppled in gusty winds in lower Manhattan, not far from the World Trade Center. The investigation will likely take weeks to months as experts try to reconstruct whether the engineering, erection, operation or manufacture of the crane, or some combination … Continue Reading

Take Care in Reaching for Deep Pockets: Don’t Let Insurance Companies Off the Hook When Drafting Settlement Agreements in Construction Defect Cases

It will happen to almost every contractor at some point — an owner or project developer will try to sue you.  Hopefully your insurer agrees you are covered, and you’ve dodged a bullet. But if your insurer tells you that you are not covered, things get sticky.  One common strategy is for the parties to … Continue Reading

Protections Against Subcontractor Defaults

Subcontractor default is a construction project nightmare that can result in significant additional costs and delay completion of the project. But there are two chief options to protect against such risks — performance bonds and subcontractor default insurance.  In my recent article for the Daily Journal of Commerce, I outline the unique characteristics of each … Continue Reading

The Latest DIRT in California: Additional Mandatory Reporting for Excavators, Operators and Contractors?

Those that “dig in the dirt” are very familiar with the Damage Information Reporting Tool (DIRT), which was launched in 2003 by the Common Ground Alliance (CGA). Over the years California has enacted several statutes requiring anyone moving dirt to notify a regional notification center of the area of planned disturbance that may impact a subsurface … Continue Reading

Multi-Family Sellers Beware: Don’t “Alienate” Your Project from Insurance Coverage for Construction Defects

The apartment business is booming right now. Unfortunately, construction defects persist as well, particularly in garden-style and wood-framed construction. Most developers are savvy enough to maintain a good insurance program, but many do not understand (until too late) that the policies they bought may not cover the risk of construction defects.  As an owner-developer, neither your property … Continue Reading

Bah Humbug: California Supreme Court Won’t Hear Dispute Arising From Overbroad SB800 Decision

You may have recently heard that on December 11, 2013, the California Supreme Court denied the builder’s Petition for Review of the published decision in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC, 163 Cal. Rptr. 3d 600, Cal. App. 4th 98 (2013). For builders and contractors, this is very frustrating news and undermines the … Continue Reading

Beware the Economic Loss Trap in Construction Disputes

The Oregon Court of Appeals recently applied the so-called “economic loss rule” to a construction dispute (Marton v. Ater Construction Co., 256 Or App 554, __ P3d __ (2013)). Among other issues, the court decided whether the prime contractor’s negligence claim against its subcontractor was barred under the economic loss rule. Under the court-made economic … Continue Reading

Sophisticated Parties? You May Shorten Both the Start and Length of the Statute of Limitations in CA Commercial Construction Contracts

Can parties waive both the commencement and length of the statutory limitation periods for construction defect actions?  Yes, answered the Fourth Appellate District, by allowing the parties to contractually preclude the application of the “delayed discovery” rule that normally triggers the commencement of the limitation time period and affirming case law permitting the shortening of … Continue Reading
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