Delays Caused When Government (Owner) Pushes Contractor’s Work Into Rainy / Adverse Weather Season
January 13, 2020 —
David Adelstein - Florida Construction Legal UpdatesThere are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events). The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused by the weather). If the work is pushed into the rainy season, is such delay compensable if the government (or owner) delayed the project that pushed work out into the rainy season? It very well can be.
For example, in Meridian Engineering Co. v. U.S., 2019 WL 4594233 (Fed. Cl. 2019), a contractor was hired by the Army Corps of Engineers to construct a flood control project for a channel in Arizona. Due to delays, including those caused by the government, the project was pushed into the monsoon season, which caused additional delays largely due to flooding caused by the heavy rain. One issue was whether such delays were compensable to the contractor – the government raised the argument that the contractor assumed the risk of potential flooding from the rainy season. The Court found this argument unconvincing:
[The contractor’s] initial construction schedule planned for a completion of the channel invert work, a necessary step in protecting the site from flooding, to be completed by late June 2008…[M]any issues arose in the project’s early stages that led to cumulative substantial delay, including those caused by the government’s failure….The government cannot now claim that [the contractor] assumed the risk of flooding from monsoon season when the government was largely responsible for [the contractor’s] inability to complete the project prior to the beginning of the monsoon season. Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season.
Meridian Engineering, 2019 WL at *7 (internal citations omitted)
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Million-Dollar Home Sales Thrive While Low End Stumbles
May 05, 2014 —
Prashant Gopal – BloombergMillion-dollar homes in the U.S. are selling at double their historical average while middle-class property demand stumbles, showing that the housing recovery is mirroring America’s wealth divide.
Purchases costing $1 million or more rose 7.8 percent in March from a year earlier, according to data released last week by the National Association of Realtors. Transactions for $250,000 or less, which represent almost two-thirds of the market, plunged 12 percent in the period as house hunters found few available homes in that price range.
Luxury-home sales are climbing as an improving economy and stocks that have almost tripled from 2009 lows bolster confidence among affluent buyers. At the same time, slow wage growth, tight credit standards and escalating prices are putting homeownership out of reach for many Americans. While investors drain the market of lower-end properties, builders are constructing more expensive houses that generate bigger profits.
Read the court decisionRead the full story...Reprinted courtesy of
Prashant Gopal, BloombergMr. Gopal may be contacted at
pgopal2@bloomberg.net
Fla. Researchers Probe 'Mother of All Sinkholes'
August 24, 2017 —
Thomas F. Armistead - Engineering News-RecordIt will take months to complete remediation of the largest sinkhole in Pasco County, Fla.’s recent history, county officials say. Seven houses have been lost or condemned since the sinkhole was reported at 7:21 a.m. on July 14. That day, two houses collapsed into the hole, which initially measured 225 ft long and 50 ft deep. As the cavity’s dimensions grew to between 260 ft and 180 ft, the county red-tagged five additional houses.
Read the court decisionRead the full story...Reprinted courtesy of
Thomas F. Armistead, ENRENR may be contacted at
ENR.com@bnpmedia.com
First-Time Homebuyers Make Biggest Share of Deals in 17 Years
February 22, 2018 —
Prashant Gopal – BloombergMillennials are playing homeownership catch-up.
First-time buyers rushed into the market last year, making 38 percent of all U.S. single-family home purchases, the biggest share since 2000, data released Thursday by Genworth Mortgage Insurance show. The 2.07 million new or existing homes bought by first-timers was 7 percent more than in 2016, according to the insurer, part of
Genworth Financial Inc.
Read the court decisionRead the full story...Reprinted courtesy of
Prashant Gopal, Bloomberg
"My Bad, I Thought It Was in Good Faith" is Not Good Enough - Contractor Ordered to Pay Prompt Payment Penalties
February 23, 2016 —
David A. Harris & Jesse M. Sullivan – Haight Brown & Bonesteel LLPRetention clauses are almost always included in California construction contracts and permit an Owner to withhold a portion of what is owed to the General Contractor as security to ensure the proper completion of the work. General Contractors pass the withholding of retention down to the subcontractors. Thus, if the subcontractor fails to complete its work, or fails to correct deficiencies, the Owner/General Contractor can use the retention to pay the costs of completing or correcting the subcontractor’s work.
The contractor must release any retention it receives from the owner within ten days unless a “good faith dispute exists between the direct contractor and the subcontractor.” (Civil Code section 8814.) Where there is a good faith dispute, the contractor “may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” (Civil Code section 8814(c).) If the contractor wrongfully withholds retention, it must not only pay the retention but must also pay the subcontractor “a penalty of 2 percent per month on the amount wrongfully withheld.” The contractor must also pay the subcontractor’s costs and reasonable attorney’s fees incurred in collecting the retention. (Civil Code section 8818.)
Reprinted courtesy of
David A. Harris, Haight Brown & Bonesteel LLP and
Jesse M. Sullivan, Haight Brown & Bonesteel LLP
Mr. Harris may be contacted at dharris@hbblaw.com
Mr. Sullivan may be contacted at jsullivan@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Court Adopts Magistrate's Recommendation to Deny Insurer's Summary Judgment Motion in Collapse Case
June 06, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe district court accepted the magistrate's recommended ruling denying the insurer's motion for summary judgment on breach of contract and bad faith claims in a case involving collapse. Jang v. Liberty Mut. Fire Ins. Co., 2018 U.S. Dist. LEXIS 51880 (D. Conn. March 27, 2018).
After purchase of their home, the insureds' inspector found large cracks in the foundation. Liberty denied coverage, contending that the basement wall was collapsing due to settling earth or movement. The insureds' expert later found the foundation had cracks from the oxidation of iron sulfide minerals in the foundation's concrete. The insureds sued for breach of contract, bad faith, and violations of the Connecticut Unfair Insurance Practice Act and the Unfair Trade Practices Act.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Some Construction Contract Basics- Necessities and Pitfalls
January 03, 2022 —
Christopher G. Hill - Construction Law MusingsRecently, I’ve been on an “advising” kick here at Construction Law Musings. My last two posts have been about communication and trusting your gut when it comes to a smooth construction project. This post will be the third in the trilogy (and who knows maybe I’ll have a 4th and 5th like the Hitchhiker’s Guide to the Galaxy “trilogy”).
While all construction contractors should use their communication skills and instincts to assure a smooth and hopefully profitable project, all of the gut following and great communication will not help you if your contract is not up to snuff. In the spirit of giving you a few basics things to look at, here’s my list of three basics that you need in your contract and a three things to be on the lookout for in others’ contracts.
First, the good stuff that needs to be there:
- Attorney Fees Clause– without it, a Virginia court (and most other courts) will not award you a judgment for any attorney fees spent to protect your rights.
- Dispute Resolution– whether the specified resolution is through the litigation process, ADR or some combination, such a clause or paragraph will only help define the parameters of what happens with a claim.
- Detailed scope of work– Without the proper detail in the scope of work, the parties cannot properly set expectations and know what happens when things change.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Constructive Notice Established as Obstacle to Relation Back Doctrine
March 01, 2021 —
Nicholas B. Brummel & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Organizacion Comunidad de Alviso v. City of San Jose, the Sixth Appellate District held that the relation back doctrine was inapplicable where a plaintiff received constructive notice of a defendant’s identity months prior to the last date where filing was permitted pursuant to an applicable statute of limitations.
In Organizacion Comunidad de Alviso, Mark Espinoza, an Organizacion Comunidad de Alviso (OCA/Plaintiff) representative, asked the City of San Jose (“the city”) to place him on the public notice list for a proposed rezoning project. He also twice specifically requested a copy of the notice of determination (NOD) documenting the city’s certification of an environmental impact report (EIR) and approval of the project. Despite Espinoza diligently requesting all notices for the project, the city, in violation of the California Environmental Quality Act (CEQA), failed to send Espinoza the legally operative second NOD for the project; the first NOD was provided to OCA, but named an incorrect party in interest.
Reprinted courtesy of
Nicholas B. Brummel, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Brummel may be contacted at nbrummel@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of