The Americas – Page 18 – Construction Law

K&L Gates Arbitration World, January 2009

Jan 15 2009

Arbitration World is an update for clients and contacts on recent development in international arbitration law and practice.

From the Editors

Welcome to the 7th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group which highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

In This Issue

• News from around the World
• Prospects for Investment Treaty Claims Arising Out of the Financial Crisis
• Arbitration Cases in the U.S. Supreme Court’s 2008-2009 Term
• Anti-suit Injunctions in Support of Arbitration Agreements – Are They Lawful in Europe?
• Is International Arbitration Delivering?
• Arbitration in Dubai: New Structures and Legal Instruments
• Arbitration Clauses in Consumer Contracts – Recent English Decisions
• Ordre Public in Enforcement and Annulment of Arbitral Awards in Germany
• Outer Bounds of Arbitrability in Texas
• Sports Arbitration Update

View the January 2009 Edition here.

Idaho’s High Court Analyzes 15 Factors for Determining Whether a Worker is an Independent Contractor or an Employee

Jan 14 2009

Excell Constr., Inc., v. Idaho Dep’t of Commerce and Labor, 145 Idaho 783, 186 P.3d 639 (2008)

This appeal arises out of an Idaho Industrial Commission finding that certain sheetrock workers hired by Excell Construction were employees rather than independent contractors. At issue was whether Excell would be required to pay $6,353 in unemployment insurance taxes and penalties. On appeal, the Idaho Supreme Court held the workers were independent contractors and reversed the Commission’s finding.

Contractual Limitation of Liability in Engineer / Survey Contract Upheld

Jan 06 2009

Blaylock Grading Co., LLP v. Smith, 658 S.E.2d 680 (N.C. Ct. App. 2008)

In this case, a grading contractor sued a surveyor (who was also an engineer) for breach of contract and negligence regarding mistakes in surveying work which resulted in the contractor having to incur costs to import fill to raise the elevation of the site. The contract between the contractor and surveyor contained a provision limiting the surveyor’s liability to $50,000. The surveyor unsuccessfully moved for partial summary judgment based on the limit of liability. Following a jury verdict against the surveyor for $574,714, the surveyor moved for judgment notwithstanding the verdict, which the trial court denied, ruling that the limit of liability was void as against public policy. The North Carolina Court of Appeals reversed the trial court, holding that the limitation of liability was valid and enforceable.

Foreign Contractor’s Failure to Register with Secretary of State Does Not Void Contract or Arbitration Clause

Dec 22 2008

City of Westfield v. Harris & Assocs. Painting, Inc., 567 F. Supp. 2d 252 (D. Mass. 2008)

In this case, the Federal District Court for the District of Massachusetts allowed a contractor’s motion to compel arbitration and remanded the case to arbitration despite the fact that the contractor failed to register as a foreign corporation with the Massachusetts Secretary of State as required by M.G.L. c. 30, § 39L.

Insurer Granted Summary Judgment against General Contractor where Contract between Subcontractor and Injured Worker’s Firm Fails to Meet Indemnification Requirements

Sep 30 2008

Connolly Bros., Inc. v. Nat’l Fire & Marine Ins. Co., Civ. No. 06-11673-NG, 2008 WL 5423198 (D. Mass. Sept. 30, 2008)

In this case, the Federal District Court for the District of Massachusetts granted an insurer’s motion for summary judgment on a general contractor’s claim for indemnification and for unfair and deceptive practices under M.G.L. c. 93A, because the general contractor was not covered for the relevant incident by the insurer’s policy.

Inability to Determine Whether Owner Owed General Contractor when Subcontractor filed Lien Precludes Summary Judgment

Sep 30 2008

In Nitro Dynamics v. Petruzzi Bros., Inc., 2008 WL 4635884 (Mass. Super. Ct. Sept. 26, 2008)

In this case, a subcontractor sued three defendants – the owner, the general contractor, and a surety – asserting claims for breach of contract, quantum meruit, and for recovery on a mechanic’s lien dissolution bond. The Superior Court granted the owner’s motion for judicial notice of a stipulation of dismissal in a related action, but denied the owner’s motion for summary judgment.

Contracts Cancelled Because of Illegal Actions May be Unenforceable

Jul 30 2008

FCI Group, Inc. v. City of New York, 2008 WL 2796591 (N.Y. App. Div. July 22, 2008)

In this case, plaintiff contractor sued to recover the outstanding balance for work already completed on a construction project after the city cancelled the contract because of plaintiff’s attempted bribery of two city officials. The Appellate Division, First Department, granted defendants’ motion for summary judgment, holding that: (i) “plaintiff agreed to conduct itself ethically…and consented to the imposition of penalties for violating the contractual prohibition against dispensing monetary inducements to City workers;” and (ii) the illegal conduct at issue was central to plaintiff’s performance under the contract.

The court rejected defendants’ alternative argument that the contract’s alternative dispute resolution clause required dismissal in favor of arbitration. The court held that the narrow ADR provision only applied to specified disputes in accordance with the intent of the parties and could not be interpreted so as to render the language limiting its scope mere surplusage.

K&L Gates Arbitration World, Summer 2008

Jul 25 2008

By K&L Gates attorneys Ian Meredith, John L. Boos and others.

Arbitration World is an update for clients and contacts on recent development in international arbitration law and practice.

Welcome to the Sixth Edition of Arbitration World, a publication from K&L Gates’ Arbitration Group which aims to highlight significant developments and issues in international arbitration for executives and in-house counsel with responsibility for dispute resolution.

In this edition, our review of key case law includes reports on the keenly awaited U.S. Supreme Court decision in Hall Street v. Mattel, a U.S. appellate decision excluding class actions, and a recent case from the Court of Arbitration for Sport with potentially wide-ranging implications.

Washington’s Limited Liability Company Act is Applicable Retroactively and Permits Liability for Individual LLC Members or Managers

Jul 01 2008

Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, 139 Wash. App. 315, 160 P.3d 1073 (2007)

In this case, Emily Lane Homeowners Association sought damages against Colonial Development, LLC and its individual company members and managers. Emily Lane alleged that members of Colonial failed to act in a timely manner to address warranty claims. When Emily Lane filed suit on July 19, 2005, Colonial had already dissolved and filed a certificate of cancellation. The trial court granted summary judgment, finding that Emily Lane’s action against Colonial could proceed even though Colonial had already dissolved. However, the trial court also dismissed Emily Lane’s claims against the members and managers of Colonial, presumably finding that they were immune from liability as individuals.

On appeal, there were two main issues. First, whether the 2006 amendment to Washington’s Limited Liability Company Act, RCW 25.15, could be applied retroactively to permit an action against a dissolved limited liability company (LLC). Second, whether members and managers of a company could personally be liable under the Limited Liability Company Act if they did not properly wind up the dissolution of the LLC. Read More

Finding No Bad Faith, Court Enforces Termination for Convenience and Conversion Provisions Included in Parties’ Contract

Jun 23 2008

Stony Brook Constr. Co. v. Coll. of N.J., 2008 WL 2404174 (N.J. Super. Ct. App. Div. June 16, 2008)

This appeal arose out of a lawsuit filed by a contractor, Stony Brook Construction Co. and its surety, Fidelity & Deposit Company of Maryland (F & D), against The College of New Jersey (TCNJ), in connection with the construction of a new three-story building on the TCNJ campus. In August 1998, TCNJ entered into multiple prime contracts for the construction. TCNJ retained Stony Brook to perform the general construction work for its bid price of $3,783,565. The anticipated completion date for the project was August 17, 1999. TCNJ retained a construction management firm, CMM, to coordinate and schedule the project. Two TCNJ employees (Rogers and Bressler) were also designated as project supervisors. Due to numerous delays and disagreements between the parties, the project remained unfinished as of the anticipated completion date.

In October 1999, TCNJ terminated its contract with Stony Brook for nonperformance. On November 5, 1999, TCNJ and F & D executed a takeover agreement, by which F & D agreed to complete the work in exchange for the unpaid balance of the contract price. Problems continued, and in September 2000, F & D ceased performance, claiming that TCNJ breached the takeover agreement. TCNJ hired another contractor to complete the general construction. Read More

Catagory:The Americas