A Termination for Convenience Is Not a Termination for Default
April 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesA termination for convenience is NOT a termination for default. They are NOT the same. They should NOT be treated as the same. I am a huge proponent of termination for convenience provisions because sometimes a party needs to be able to exercise a termination for convenience, but the termination is not one that rises to a basis for default. However, exercising a termination for convenience does not mean you get to go back in time and convert the termination for convenience into a termination for default. It does not work like that. Nor should it.
An opinion out of the Civilian Board of Contract Appeals – Williams Building Company, Inc. v. Department of State, CBCA 7147, 2024 WL 1099788 (CBCA 2024 – demonstrates a fundamental distinction between a termination for convenience and a termination for default, i.e., that you don’t get to conjure up defaults when you exercise a termination for convenience:
Because a termination for convenience essentially turns a fixed-price construction contract into a cost-reimbursement contract, allowing the contractor to recover its incurred performance costs, the resolution of this appeal will involve identifying the total costs that [Contractor] incurred in performing this contract before [Government] terminated it for convenience. Since [Government] terminated the contract for convenience rather than for default, it no longer matters whether, in the past,[Contractor] acted intentionally in overstating the amount of its incurred costs or committed a contract breach. Ultimately, as permitted in response to a termination for convenience, [Contractor] will recover those allowable costs that [Contractor]establishes it incurred in performing the contract.
Williams Building Company, supra.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Co-Founding Partner Jason Feld Named Finalist for CLM’s Outside Defense Counsel Professional of the Year
March 19, 2024 —
Linda Carter - Kahana FeldKahana Feld congratulates Co-Founding Partner Jason Daniel Feld, Esq., for being named one of three finalists for Claims & Litigation Management Alliance (CLM) Outside Defense Counsel Professional of the Year.
Mr. Feld is a nationwide leader in construction claims and an active industry speaker, serving as panel counsel for many prominent insurance carriers, and personal counsel to multiple national and regional homebuilders, developers, and general contractors.
Co-Founding Partner, Amir Kahana, states, “Jason is incredibly deserving of this recognition. When he joined our firm, we were 3 lawyers in one city, and seven years later, we are a national firm with over 65 attorneys in 10 cities and 6 states. Jason is a natural leader who is highly respected. He has earned the trust of his carrier clients, as well as his colleagues in the industry. In addition to everything he does for Kahana Feld, he also works tirelessly on behalf of CLM and has been a great leader in the Orange County Chapter. I am thrilled to see Jason receive the recognition he richly deserves.”
Read the full story...Reprinted courtesy of
Linda Carter, Kahana FeldMs. Carter may be contacted at
lcarter@kahanafeld.com
Ohio Supreme Court Rules That Wrongful Death Claims Are Subject to the Four-Year Statute of Repose for Medical Claims
January 16, 2024 —
Lewis Brisbois NewsroomCleveland, Ohio (January 2, 2024) - In a landmark 4-3 ruling, the Supreme Court of Ohio ruled on December 28 that wrongful death claims are subject to the four-year statute of repose contained in O.R.C. 2305.113(C) (“Medical Claim Statute of Repose”). Everhart v. Coshocton County Memorial Hospital, Slip No. 2023-Ohio-4670. Statutes of repose create an absolute bar to filing a lawsuit. When applicable, they bar plaintiffs from filing claims outside a specified time frame. The Medical Claim Statute of Repose creates a four-year window for commencing medical claims, which begins to run from “the occurrence of the act or omission constituting the alleged basis of the medical…claim.” O.R.C. 2305.113(C)(1). Medical claims commenced after the four-year period are barred.
The primary question before the Court was whether a wrongful death claim, which is separate and distinct from a medical negligence claim, can qualify as a “medical claim” within the context of the Medical Claim Statute of Repose. The Court answered in the affirmative. A wrongful death claim can qualify as a medical claim if the wrongful death claim “…arises out the medical diagnosis, care, or treatment, of any person.” O.R.C. 2305.113(E)(3). According to the majority, a wrongful death claim can fall within the broad definition of “medical claim” and, if it does, is subject to the Medical Claim Statute of Repose.
Read the full story...Reprinted courtesy of
Lewis Brisbois
Is Modular Construction Destined to Fail?
March 11, 2024 —
Aarni Heiskanen - AEC BusinessThe construction sector is a harsh environment for innovation. I’ve been following the story of one Finnish innovative contractor, Lehto Group, over the years with enthusiasm. I was saddened to hear that the group’s three significant subsidiaries joined the ranks of many Finnish contractors who have filed for bankruptcy over the last six months.
Lehto developed industrialized building concepts and had its own production facilities. The company had a promising start but eventually ran into problems. Was the industrial approach a mistake, or were other factors contributing to the firm’s fall?
Three Contributing Factors
Lehto Group’s collapse was not a surprise to its competitors, who had observed warning signs years prior. The company’s order book plummeted in 2024 despite still employing around 500 workers. Rakennuslehti, the leading construction magazine in Finland, asked three experienced industry professionals to give their views on Lehto’s failure. The interviewees spoke anonymously due to the small size of the Finnish market and the sensitive nature of commenting on a competitor’s matters.
Read the full story...Reprinted courtesy of
Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Ruling Dealing with Constructive Changes, Constructive Suspension, and the Implied Covenant of Good Faith and Fair Dealing
January 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesA dispute pending in the Armed Services Board of Contract Appeals (ASBCA) dealt with interesting legal issues on a motion to dismiss. See Appeals of McCarthy Hitt-Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (ASBCA 2023). The dispute involves a contractor passing through subcontractor claims due to impacts caused by the COVID-19 pandemic and the government’s response to the pandemic. More particularly, the claim centers on the premise that the government “failed to work with [the contractor] in good faith to develop a collaborative and cooperative approach to manage and mitigate the impacts and delays arising from the COVID-19 pandemic.” See Appeals of McCarthy Hitt.
The contractor (again, submitting pass through claims from subcontractors) claimed: (a) constructive changes to the contract entitling it to an equitable adjustment under the Changes clause of Federal Acquisition Regulation (F.A.R.) 52.243-4; (b) construction suspensions of the contractor’s work entitling it to an equitable adjustment under the Suspensions of Work clause of F.A.R. 52-242-14; and (c) the government breached the implied covenant of good faith and fair dealing. Each of these legal issues and theories will be discussed below because they are need-to-know legal issues. Keep these legal issues in mind, and the ASBCA’s ruling on the motion to dismiss as its analysis may demonstrate fruitful in other applications.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Missouri Protects Subrogation Rights
April 15, 2024 —
Lian Skaf - The Subrogation StrategistThe point at which an insurance carrier possesses the equitable right of subrogation is an issue on which the states have differed. Some allow carriers to pursue rights of subrogation immediately upon payment and some have taken stricter approaches. Missouri falls into the latter group. By not allowing the carrier the right to file suit against third-party tortfeasors until the insured provides its carrier with an assignment of all its rights, Missouri’s approach has opened the door for challenges to subrogation rights.
In Megown v. Auto Club Fam. Ins. Co., 2024 Mo. App. LEXIS 82, the plaintiff-insureds Michael and Jane Megown (the Megowns) suffered a house fire on February 8, 2016. Their insurance carrier, Auto Club Family Insurance Company (Auto Club) reimbursed the Megowns for their property damage in the amount of $722,433.56. Subsequently, the Megowns sued Auto Club for breach of contract and later amended their complaint to add claims against Tyberius Enterprises, LLC d/b/a Crag Electric (Craig Electric), the third-party tortfeasor, for direct negligence, alleging both property damage and personal injuries. Auto Club intervened in the Megowns’ claim against Craig Electric to protect its interest as subrogee for its property damage payment to the Megowns. Craig Electric settled prior to trial, paying $1,000,000.00 to both the Megowns and Auto Club, to be allocated at a later date. After a bench trial that apportioned the settlement with $722,433.56 paid to Auto Club and $277,566.44 paid to Megowns – and a jury trial awarding no further damages – the Megowns appealed.
Read the full story...Reprinted courtesy of
Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Real Estate & Construction News Roundup (11/8/23) – New Handling of Homelessness, Decline in Investments into ESG Funds, and Shrinking of a Homebuyer’s Dollar
December 11, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogOur latest roundup includes two large flood control projects in New Jersey, how residential REITs could benefit from higher interest rates, how the downfall of WeWork could cause expansive collateral damage, and more!
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
Graham & Who May Trigger The Need To Protest
December 23, 2023 —
Hugo Fraga - Ahlers Cressman & Sleight PLLCOn May 30, 2023, the Washington Court of Appeals, Division I, issued a decision that appears to expand a contractor’s obligation with respect to WSDOT notice and claim procedures. In
Graham Contracting, Ltd. v. City of Federal Way, No. 83494-1-I, 2023 WL 3721171 (Wash. Ct. App. May 30, 2023) (Unpublished), the Court held that under the 2016 WSDOT Standard Specifications for Road, Bridge, and Municipal Construction (“Standard Specifications”), a Contractor must protest the actions of not only the “Engineer” but also
Pollution Created by Business Does Not Deprive Insured of CoverageNew Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive TortfeasorsWhy Financial Advisers Still Hate Reverse MortgagesDust Infiltration Due to Construction Defect Excluded from PolicyConstruction Litigation Roundup: “Apparently, It’s Not Always Who You Know”Amazon HQ2 Puts Concrete on an Embodied Carbon DietOhio Court Refuses to Annualize Multi-Year Policies’ Per Occurrence LimitsMotion to Strike Insurer's Expert Opinion GrantedHospital Inspection to Include Check for Construction DefectsIdentifying and Accessing Coverage in Complex Construction ClaimsQuick Note: Third-Party Can Bring Common Law Bad Faith ClaimAllegations Confirm Duty to Defend Construction Defect ClaimsWhite and Williams Defeats Policyholder’s Attempt to Invalidate Asbestos ExclusionsBoston-area Asbestos-Abatement Firms Face Wage and Safety ComplaintsLiquidated Damages Clause Not EnforcedCongratulations to Haight’s 2019 Northern California Super LawyersHow Tech Is Transforming the Construction Industry in 2019Indemnity Clauses—What do they mean, and what should you be looking for?U.S. Building Permits Soared to Their Highest Level in Nearly Eight YearsWhy A.I. Isn’t Going to Replace Lawyers Anytime SoonNYC’s Next Hot Neighborhoods Targeted With Property FundsReal Estate & Construction News Round-Up (10/27/21)Federal Judge Issues Preliminary Injunction Blocking State's Enforcement of New Law Banning Mandatory Employee Arbitration Agreements#5 CDJ Topic: David Belasco v. Gary Loren Wells et al. (2015) B254525Subcontractor Entitled to Defense for Defective Work Causing Property Damage Beyond Its Scope of WorkWater Drainage Case Lacks StandingWhen Must a New York Insurer Turn Over a Copy of the Policy?Recent Florida Legislative Changes Shorten Both Statute of Limitation ("SOL") and Statute of Repose ("SOR") for Construction Defect ClaimsThe Importance of the Subcontractor Exception to the “Your Work” ExclusionBreath of Fresh AirPool Contractor’s Assets Frozen over Construction ClaimsUnderstanding the Details: Suing Architects and Engineers Can Get TechnicalNew Jersey Supreme Court Rules that Subcontractor Work with Resultant Damage is both an “Occurrence” and “Property Damage” under a Standard Form CGL PolicyIs it the End of the Story for Redevelopment in California?NY State Appellate Court Holds That Pollution Exclusions Bar Duty to Defend Under Liability Policies for Claims Alleging Exposure to PFASConstruction Safety Technologies – VideosBest Lawyers® Recognizes 38 White and Williams LawyersLien Actions Versus Lien Foreclosure Actions The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign ImmunityPillsbury Insights – Navigating the Real Estate Market During COVID-19New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works ContractsColorado Homes Approved Despite being Too Close TogetherHawaii Federal Court Grants Insured's Motion for RemandDHS Awards Contracts for Border Wall PrototypesPrison Time and Restitution for Construction FraudSales of New U.S. Homes Surged in August to Six-Year HighBerger: FIGG Is Slow To Hand Over All Bridge Collapse Data$1.9 Trillion Stimulus: Five Things Employers Need to KnowThe Jersey Shore gets Beach Prisms Designed to Reduce ErosionManhattan Homebuyers Pay Up as Sales Top Listing PriceSkenarioLabs Uses AI for Property BenchmarkingPlaintiffs In Construction Defect Cases to Recover For Emotional Damages?“If It Walks Like A Duck . . .” – Expert Testimony Not Always Required In Realtor Malpractice Cases Where Alleged Breach Of Duty Can Be Easily Understood By Lay PersonsFive Construction Payment Issues—and SolutionsVirginia Chinese Drywall and pollution exclusionEPC Contractors Procuring from Foreign Companies need to Reconsider their Contracts 
