STRUCTURAL ENGINEER EXPERT WITNESS GRAYLING ALASKA ALASKA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Construction Litigation Roundup: “That’s Not How I Read It”

June 05, 2023 — Daniel Lund III - Lexology
A general contractor seeking to litigate with its subcontractor concerning a construction project in Indiana found itself fighting in court against assertions by the sub that arbitration of the dispute was required. The GC was already in litigation in federal court with the project owner. The GC filed a third-party demand against the sub, which was met with a motion to stay and to compel arbitration. At the crux of the sub’s argument was this clause in its subcontract: “Subcontractor agrees that the dispute resolution provisions of the Prime Contract between [GC] and Owner, if any, are incorporated by reference as part of this Subcontract so as to be binding as to disputes between Subcontractor and [GC] that involve, in whole or in part, questions of fact and/or law that are common to any dispute between [GC] and Owner or others similarly bound to such dispute resolution procedures... ." Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Parties Can Agree to Anything In A Settlement Agreement………Or Can They?

October 17, 2023 — Alexa Stephenson & Ivette Kincaid - Kahana Feld
A settlement agreement is a contract. When parties to pending litigation enter into a settlement, they enter into a contract. Such a contract is subject to the general law governing all contracts. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204 Cal. Rptr. 143, 682 P.2d 338] [offers by a party to compromise under Code Civ. Proc., § 998].) Courts seek to interpret contracts in a manner that will render them “lawful, operative, definite, reasonable, and capable of being carried into effect’” without violating the intent of the parties. (Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241, 272–273; Kaufman v. Goldman, (2011) 195 Cal. App. 4th 734, 745. A settlement agreement like a contract is a document that is typically negotiated between the parties to the agreement and it is up to the parties to determine its terms. Settlements take time and sometimes negotiating the settlement terms takes longer. This is especially true in complex litigation and multiparty matters where negotiating the settlement terms is just as contentious as litigating the matter. Just like contracts, in a settlement agreement the parties cannot agree to terms that violate public policy. A contract is thought to be against public policy if it results in a breach of law, harms citizens, or causes injury to the state. Contracts that are voided on public policy grounds carry no legal obligations. For example, an employer cannot force an employee to sign a contract that forbids the worker from joining a union. Reprinted courtesy of Alexa Stephenson, Kahana Feld and Ivette Kincaid, Kahana Feld Ms. Stephenson may be contacted at astephenson@kahanafeld.com Ms. Kincaid may be contacted at ikincaid@kahanafeld.com Read the full story...

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Indiana Appellate Court Allows Third-Party Spoliation Claim to Proceed

August 01, 2023 — Ryan Bennett - The Subrogation Strategist
In Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et al, No. 22A-CT-1924, 2023 Ind. App. LEXIS 157, the Court of Appeals of Indiana (Appellate Court) reversed a trial court ruling that granted the motion to dismiss filed by Michaelis Corporation (Michaelis), a restoration company. The Appellate Court ruled that the trial court erred in dismissing the plaintiff’s spoliation and negligence claims against Michaelis, who discarded evidence relating to the cause of the fire at issue. The plaintiff’s insured owned a home in Indianapolis, Indiana. On Halloween night in 2019, a fire occurred at the property. The plaintiff’s representatives preliminarily determined that the fire may have been caused by a digital dehydrator within the kitchen. Michaelis had a representative present at the site inspection and was allegedly told to preserve the kitchen area. That area was taped off with “caution” tape. Michaelis also placed a tarp over the kitchen to prevent weather damage. Despite the instructions and precautions, Michaelis demolished the kitchen and discarded the dehydrator along with other fire debris. Read the full story...
Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

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Professional Malpractice Statute of Limitations in Construction Context

June 26, 2023 — David Adelstein - Florida Construction Legal Updates
In an interesting dichotomy, which statute of limitations applies to professional malpractice claims relating to construction claims, i.e., in the construction context? Is it the two year statute of limitations in Florida Statute s. 95.11(4)( a) that governs professional malpractice claims or is it the four year statute of limitations in Florida Statute s. 95.11(3)(c) that governs actions “founded on the design, planning, or construction of an improvement toot real property”? This dichotomy led the appeal in American Automobile Ins. v. FDH Infrastructure Services, LLC, 48 Fla.L.Weekly D1091a (Fla. 3d DCA 2023). This case sadly involved a construction accident that led to deaths. A contractor was engaged to install an antenna on an existing television tower. The contractor hired an engineering firm “to perform a structural analysis as to the stability and weight-bearing capacity of the tower. [The engineer] was contractually obligated to assess the proposed rigging plan…to lift the loads necessary to construct the antenna.” FDH Infrastructure Services, supra. Unfortunately, after the installation of the antenna commenced, the rigging components failed resulting in workers falling to their deaths. After insurers paid out benefits, they sued the engineering firm under equitable and contractual subrogation theories. The engineering firm moved for summary judgment arguing the subrogation claims were barred by the professional malpractice two year statute of limitations in section 95.11(4)(a). The trial court agreed and granted summary judgment in favor of the engineering firm. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Construction Termination Issues for the Architect and Engineer: Part 1– Introduction to the Series

July 24, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Earlier this year, I was asked to talk to other construction lawyers on the topic of termination. My first question was– whose termination are we talking about here– the architect / engineer? The contractor? Is someone wanting to “fire” the owner? The answer, as it turns out, is — yes. That is, yes, any and all of the above termination topics were on the table. As you may have suspected, even the threat of a termination is bad, bad news. It is the “nuclear option” for a construction project. Everyone risks getting harmed. As the design professional administering a contract, you run a risk of being dragged into litigation no matter what you do. So, how should you proceed? Carefully. Read the full story...
Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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BWB&O is Recognized in the 2024 Edition of Best Law Firms®!

November 16, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to announce the firm has been recognized for its fourth consecutive year in the 2024 edition of Best Law Firms® and is ranked by Best Lawyers® regionally in three practice areas. To read the publication, please click here. Regional Tier 1 Las Vegas: Litigation – Construction Orange County: Litigation – Construction Regional Tier 2 Orange County: Family Law Regional Tier 3 Orange County: Commercial Litigation Read the full story...
Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Understanding California’s Pure Comparative Negligence Law

November 13, 2023 — Yaron Shaham - Kahana Feld
In order for a plaintiff to prove a defendant is negligent, the plaintiff must prove the defendant (1) owed a duty to plaintiff, (2) breached that duty, (3) the breach was the actual and proximate cause of plaintiff’s injury, and (4) the resulting monetary damage. However, for both plaintiffs and defendants it is not an all or nothing game in California. This is because California is a pure Comparative Negligence state. California’s Comparative Negligence law provides that even if a plaintiff is deemed 99% at fault, the plaintiff can still recover 1% in damages from a defendant. Thus, even if a plaintiff is deemed to be more than 50% (or even 99%) at fault for the incident, the plaintiff could still recover some monetary amount, or the defendant will still have to pay plaintiff, depending on how you see it. In most instances, a jury decides what percentage of fault to assign to each party. Just as a plaintiff must prove he/she/its negligence case against a defendant, if the defendant claims plaintiff was partially responsible for the incident, the defendant must prove plaintiff was also negligent and said negligence contributed to plaintiff’s injuries. The total amount of monetary responsibility distributed among all defendants and plaintiffs must equal 100%. As crazy as it may sound, a plaintiff found to be 99.9% at fault, is still entitled to recover 0.01% from a defendant in California. Read the full story...
Reprinted courtesy of Yaron Shaham, Kahana Feld
Mr. Shaham may be contacted at yshaham@kahanafeld.com

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Traub Lieberman Attorneys Recognized as 2023 New York – Metro Super Lawyers® and Rising Stars

October 24, 2023 — Traub Lieberman
Traub Lieberman is pleased to announce that seven Partners from the Hawthorne, NY Office have been selected to the 2023 New York - Metro Super Lawyers list. In addition, one associate has been named to the 2023 Super Lawyers Rising Stars list. 2023 New York – Metro Super Lawyers

• Copernicus Gaza – Insurance Coverage
• Jonathan Harwood – Professional Liability
• Lisa Rolle – Construction Litigation
• Christopher Russo – Professional Liability
• Lisa Shrewsberry – Professional Liability
• Stephen Straus – Insurance Coverage
• Richard Traub – Insurance Coverage

2023 New York – Metro Super Lawyers Rising Stars

• Aris Rotella – Civil Litigation

Read the full story...
Reprinted courtesy of Traub Lieberman

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