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What about an action that alleges tort causes of action against an alter ego of a contracting party but that does not include a breach of contract claim against the alter ego?

Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717

Monday, April 12, 2021 — Tony Carucci - Snell & Wilmer Real Estate Litigation Blog

California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “[i]n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing party is the party specified in the contract or not. But what about an action that alleges tort causes of action against an alter ego of a contracting party but that does not include a breach of contract claim against the alter ego? This was the question facing the California Court of Appeal in 347 Group, Inc. v. Philip Hawkins Architect, Inc. (2020) 58 Cal.App.5th 209.

In that case, the plaintiff 347 Group sued and obtained a default judgment for breach of contract against defendant Philip Hawkins Architect, Inc. Id. at 211–12. 347 Group had also sued Philip Hawkins individually as well as Design-Build, Inc., the company Hawkins founded after putting Philip Hawkins Architect, Inc. into bankruptcy. Id. at 212. 347 Group originally alleged claims for breach of contract, fraudulent conveyance, and conspiracy against Hawkins and Design-Build, seeking to establish that Hawkins and Design-Build were the alter egos of the contracting party, Philip Hawkins Architect, Inc., but later dismissed the breach of contract claim. Id. Hawkins and Design-Build eventually prevailed on the tort causes of action, and moved for attorneys’ fees. Id.

Reprinted courtesy of Tony Carucci, Snell & Wilmer

Mr. Carucci may be contacted at acarucci@swlaw.com

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Evaluating whether common law indemnification (or contribution) applies in a given case is complicated and requires consideration of the relevant facts on a case-by-case basis.

Common Law Indemnification - A Primer

Monday, April 12, 2021 — Brian F. Mark - Hurwitz & Fine, P.C.

“Common law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his relationship to the wrongdoer.’” McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375 (2011), quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 (1990).

What is Common Law Indemnification and Who Can Assert it?

Indemnification, in general terms, is the right of one party to shift a loss to another and may be based upon an express contract or an implied obligation. Bellevue S. Assoc. v. HRH Constr. Corp., 78 N.Y.2d 282 (1991). Based on a separate duty owed the indemnitee by the indemnitor, common law indemnification, or implied indemnification, permits one who was compelled to pay for the wrong of another to recover from the wrongdoer the damages paid to the injured party. D’Ambrosio v. City of New York, 55 N.Y.2d 454, 460 (1982); Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507 (2d Dept. 2008).

The premise of common law indemnification is vicarious liability, defined as “liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties” Black’s Law Dictionary (11th ed. 2019). Common law indemnification “reflects an inherent fairness as to which party should be held liable for indemnity.” McCarthy, 17 N.Y.3d at 375. It is a restitution concept which permits shifting the loss because, to fail to do so, would result in the unjust enrichment of one party at the expense of the other. Mas, 75 N.Y.2d at 680, 690; Kingsbrook Jewish Medical Center v. Islam, 172 A.D.3d 1342, 1343 (2d Dept. 2019).

Reprinted courtesy of Brian F. Mark, Hurwitz & Fine, P.C.

Mr. Mark may be contacted at bfm@hurwitzfine.com

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The end printed on paper in typewriter

Tuscany highlights an important takeaway: the often-overlooked distinction between forming a contract, and proving a contract.

Settlement Agreement? It Ain’t Over ‘Til it’s . . . Final, in Writing, Fully Executed, and Admissible

Monday, April 12, 2021 — Todd Likman - Colorado Construction Litigation

As litigators we have all been there: nearing the end of a hard-fought mediation that lasted all day. Your significant other texts to ask what is for dinner; daycare closes in thirty minutes; the dog needs to be let out. The mediator, a retired judge, gently reminds you of his prior commitment—a speaking engagement at a volunteer charity dinner event that night. Though the parties started the day at opposite ends of the spectrum, after numerous counteroffers, persistent negotiation, and mediation tactics, they finally strike a deal.

As the mediator prepares a document memorializing the terms of settlement, the parties wait with bloodshot eyes, and a sense of guarded accomplishment considering compromises were
made, but alas, an outcome seems certain. You text your significant other to indicate that you will pick something up for dinner on your way home.

Then, the mediator informs you that computer problems are preventing finalization and transmission of the document for signature. The mediator offers to send an e-mail setting forth the material settlement terms and asks each party to respond via e-mail to confirm the terms are correct, which the parties do. After a quick e-mail to your experts and case team asking them to cease trial preparation work, you leave for home.

Reprinted courtesy of Todd Likman, Higgins, Hopkins, McLain & Roswell

Mr. Likman may be contacted at likman@hhmrlaw.com

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Is the Pandemic Forcing An Evolution in P3 Work?

April 12, 2021 — Jim Parsons - Engineering News-Record

Before 2020 and the arrival of the coronavirus pandemic, public-private partnerships in the U.S. had evolved far beyond their one-of-a-kind transportation infrastructure origins, with agencies and institutions of all sizes applying the P3 delivery method to a variety of construction, operations and maintenance projects.

Reprinted courtesy of Jim Parsons, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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A Guide to Homeowners' Insurance for California Wildfire Losses

April 12, 2021 — William S. Bennett & Ryan G. Nelson - Saxe Doernberger & Vita, P.C.

After suffering historically destructive fires in 2018, California endured five of the six largest fires in state history in 2020. Nearly 10,000 fires burned over 4.2 million acres making 2020 the most significant California wildfire season on record. Sadly, a recent study from Stanford University2 predicts that the frequency and potency of these fires will only continue to increase in the coming years and decades, so it is important that homeowners understand what insurance coverage is available for wildfire-related losses.

Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C. and Ryan G. Nelson, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at WBennett@sdvlaw.com
Mr. Nelson may be contacted at RNelson@sdvlaw.com

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Palm Beach County Mansions Scooped Up in Hot Pandemic Market

April 12, 2021 — Alex Wittenberg - Bloomberg

Florida’s Palm Beach County hasn’t lost its luster with wealthy homebuyers.

Purchase contracts for single-family houses priced at $10 million or more surged 306% in March from a year earlier, the biggest gain since the pandemic started, appraiser Miller Samuel Inc. and brokerage Douglas Elliman Real Estate said in a report. For condos priced at $5 million or more, deals jumped 392%.

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Construction Law in Montana Seminar

April 12, 2021 — Beverley BevenFlorez – CDJ Staff

This two-day seminar will cover Montana construction law topics such as “procurement policies and trends under the Biden administration, construction contracting, IP issues, labor and employment, environmental issues, alternative dispute resolution procedures, and many others.” It’s relevant for architects, attorneys, contractors, and engineers.

June 24th-25th, 2021
Location TBD
Bozeman, MT

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Attorney Christopher G. Hill analyzes Fluor Fed. Sols., LLC v. Bae Sys. Ordinance Sys.

Even Where Fraud and Contract Mix, Be Careful With Timing

Monday, April 12, 2021 — Christopher G. Hill - Construction Law Musings

I have often discussed the limited circumstances under which a construction contract claim and a fraud claim can coexist. A recent case from the Western District of Virginia federal court demonstrates that care is necessary even in those limited circumstances.

In Fluor Fed. Sols., LLC v. Bae Sys. Ordinance Sys., the Court examined the question of a fraud statute of limitations under Virginia law. The basic facts found in the Complaint are these:

In 2011, the United States Army awarded BAE Systems Ordinance Systems Inc. a basic ordering agreement under which BAE was responsible for modernization projects at the Radford Army Ammunition Plant. This action stems from a subcontract between Fluor Federal Solutions LLC and BAE, under which Fluor agreed to design and construct a new natural gas boiler at the plant. Fluor has completed work on the project, and BAE has accepted that work. Nonetheless, Fluor claims that BAE has refused or failed to pay for the balance of the project costs. Fluor alleges that BAE received several changes to its prime contract from the Army but did not pass those changes along to Fluor until after BAE solicited a bid from Fluor and entered a contract with Fluor to build a temporary facility. Instead, BAE continued to misrepresent the scope of the project. Fluor alleges that the change in plans increased costs substantially, but that BAE withheld information about those changes so that it could solicit lower bids. Fluor alleges that it requested a copy of BAE’s prime contract on numerous occasions, but BAE failed to provide a copy of it. Instead, Fluor submitted a request under the Freedom of Information Act. It received a copy of BAE’s prime contract on Oct. 3, 2018.

Reprinted courtesy of The Law Office of Christopher G. Hill

Mr. Hill may be contacted at chrisghill@constructionlawva.com

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ASA selected Ms. Cooner as the recipient of this honor based upon the significant time that she spent and value she added to subcontractor advocacy in Arizona over the last year.

Angela Cooner Receives Prestigious ASA State Advocate Award

Monday, April 12, 2021 — Angela Cooner - Lewis Brisbois

Phoenix Partner Angela L. Cooner recently received the American Subcontractors Association, Inc. (ASA) 2020 State Advocate award during ASA’s Virtual Awards Presentation, which took place on February 25. ASA selected Ms. Cooner as the recipient of this honor based upon the significant time that she spent and value she added to subcontractor advocacy in Arizona over the last year.

In nominating Ms. Cooner for this award, ASA of Arizona stated, “Angie’s dedication and track record are second to none. However, it is her leadership in managing the recent merger between the Arizona State Contractors’ Coalition (AZSCC) and Arizonans for Fair Contracting (AFC) where she has distinguished herself most notably.” Moreover, ASA explained that Ms. Cooner’s dedication “has allowed ASA of Arizona to renegotiate a new contract with a government affairs firm that helped secure victory on a critical proportional liability bill and begin the upcoming legislative session on the right foot.” According to ASA, Ms. Cooner has donated the equivalent of $120,000 in billable hours to the organization through her work for AFC and as legal counsel for ASA of Arizona’s Board of Directors.

Reprinted courtesy of Angela Cooner, Lewis Brisbois

Ms. Cooner may be contacted at Angela.Cooner@lewisbrisbois.com

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There are instances where there is value to a subcontractor pursuing an unjust enrichment claim against a project’s owner.

Death of Subcontractor’s Unjust Enrichment Claim Against Project Owner

Monday, April 12, 2021 — David Adelstein - Florida Construction Legal Updates

In a previous article, I discussed a subcontractor’s unjust enrichment claim against a project’s owner and the death of this equitable claim if the owner fully paid the general contractor or paid the general contractor for the subcontractor’s work. This can be best summarized from a very short 1995 opinion out of the Fourth District Court of Appeal: “Unjust enrichment is equitable in nature and cannot exist where payment has been made for the benefit conferred. [Owner] paid [General Contractor] the full amount of its contract for the construction project. Accordingly, there can be no unjust enrichment claim to support [Subcontractor’s] claim.” Gene B. Glick Co., Inc. v. Sunshine Ready Concrete Co., Inc., 651 So.2d 90 (Fla. 4th DCA 1995).

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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The analysis, which was conducted over the last 10 months, is based on 350 interviews with general counsel and other in-house legal officials at businesses with at least $1 billion in annual revenue.

White and Williams Recognized by BTI Consulting Group for Client Service

Monday, April 12, 2021 — White and Williams LLP

White and Williams is proud to be included in BTI Consulting Group’s report of “The 70 Law Firms Improving Client Service Performance More Than All Others."

The pandemic forced law firms to navigate and respond instinctively as new client situations popped up daily and weekly. White and Williams was quick to establish a Covid-19 team and resource center to help clients navigate the rapidly developing business and legal issues brought on by the pandemic and provide timely and practical advice. This recognition is a testament to the firm’s commitment to provide clients with best-in-class service and the trust that clients have instilled in the firm.

Reprinted courtesy of White and Williams LLP
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Under construction black and yellow stripes

The act of obtaining insurance can likely be an easy one, but understanding all the provisions of the policy can be overwhelming.

Workers Compensation Insurance: Dangers of the Audit Process

Monday, April 12, 2021 — Jason M. Gropper - Autry, Hall & Cook, LLP

If your business obtains workers compensation insurance, it is important you take steps to protect the business and yourself from excessive premiums to the insurance company as a result of misclassification of workers.

After applying for and being accepted by an insurance company for workers compensation insurance, your business will receive a Workers Compensation and Employers Liability Insurance Policy. It is important that you or an advisor reviews this document. Generally, this document will explain what the insurance company can do, steps it can take to determine the premium, and the responsibilities of your business.

The document will also provide the estimated premium. A premium is the amount you will pay for the coverage provided by the insurance company. The premium is determined by many factors, including the classification of each employee. It is important that when your company applies for insurance, the correct classifications are provided. If those are not provided, or provided in error, the insurance company will assign classifications and the associated rates, based on its assumptions and conclusions. The insurance company will assess the payroll and multiply it by an established rate based on the revised classification. The rates are different for the distinct work being done by each employee, with higher-risk jobs receiving a higher rate. For instance, a roofer or framer will have a higher rate than clerical staff. The rate is generally higher for those with riskier jobs.

Reprinted courtesy of Jason M. Gropper, Autry, Hall & Cook, LLP

Mr. Gropper may be contacted at Gropper@ahclaw.com

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Urban skyline with earth brown to green signalling climate change

The CFTC’s new CRU will focus on “the role of derivatives in understanding, pricing, and addressing climate-related risk and transitioning to a low-carbon economy.”

CFTC Establishes Climate-Risk Unit, Echoing Other Biden Administration Agency Themes

Monday, April 12, 2021 — Karen C. Bennett & Jane C. Luxton - Lewis Brisbois

On March 17, the Commodity Futures Trading Commission (CFTC or Commission) joined other federal agencies led by Biden Administration appointees in ramping up consideration of climate-related risks in matters under the Commission’s jurisdiction. Stressing the need for a climate-resilient financial system, the CFTC’s new Climate-Risk Unit (CRU) will focus on “the role of derivatives in understanding, pricing, and addressing climate-related risk and transitioning to a low-carbon economy.”

Formation of the CRU will accelerate the CFTC’s “engagement in support of industry-led and market-driven processes in the climate – and the larger ESG – space critical to ensuring that new products and markets fairly facilitate hedging, price discovery, market transparency, and capital allocation.” As with similar programs launched by the Securities and Exchange Commission (see our previous alert from March 19), businesses affected by the CFTC’s new initiative should consider active engagement to ensure informed and appropriate approaches are included in any new regulations, policies, or frameworks governing climate-related issues.

Reprinted courtesy of Karen C. Bennett, Lewis Brisbois and Jane C. Luxton, Lewis Brisbois

Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com


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$1 Billion The Grand Towers Downtown LA Construction Update

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New england bridge

Hurricane Sally laid seige to northwest Florida's largest infrastructure job.

FDOT Races to Re-Open Storm-Damaged Pensacola Bridge

Monday, April 12, 2021 — Jim Parsons - Engineering News-Record

Buffeted by hurricanes, northwest Florida’s largest-ever infrastructure effort is finally seeing the light at the end of the storm. The three-mile-long bridge across Pensacola Bay is expected to reopen to traffic this spring after an ongoing replacement effort abruptly became an emergency repair job as well.

Reprinted courtesy of Jim Parsons, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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Conference room

Americans, on average, spend nearly 90% of their time indoors, according to the EPA.

Contractors Set to Implement Air Quality Upgrades for Healthier Buildings

Monday, April 12, 2021 — Nate Echtenkamp - Construction Executive

As people spend more time in offices, stores and other buildings, and colder weather forces many outdoor activities to be held indoors during the COVID-19 pandemic, construction contractors are increasingly being asked by building owners and operators to provide various mitigation strategies to improve indoor air quality to help occupants avoid being exposed to lingering airborne viral particles.

Lowering the concentration of SARS-CoV-2 and other pathogens in enclosed public spaces is of the utmost importance nowadays given that Americans, on average, spend nearly 90% of their time indoors, according to the EPA.

It’s fairly common knowledge that the best way to avoid infection is to follow guidelines issued by the Centers for Disease Control and Prevention that include:

  • wearing masks or other face coverings;
  • frequent hand-washing;
  • physical distancing of at least six feet; and
  • deep-cleaning procedures.

Reprinted courtesy of Nate Echtenkamp, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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Businessman holding hand up

Home listings should come back in spring, balancing the market.

Scotiabank Is Cautious on Canada Housing as RBC, BMO Seek Action

Monday, April 12, 2021 — Shelly Hagan & Erik Hertzberg - Bloomberg

Bank of Nova Scotia, Canada’s third-largest lender, waded into the burgeoning debate over whether Justin Trudeau’s government should take immediate steps to cool the nation’s hot housing market, issuing a report that cautioned against rushing to implement new constraints.

In a report released Sunday, Scotiabank’s chief economist Jean-Francois Perrault said the recent run-up in home prices nationally over the past year was in large part driven by sluggish supply that failed to keep up with higher demand -- a trend that could reverse itself as new sellers enter the market in coming weeks. If the government does decide to take action, it should target housing speculators, he said.

Reprinted courtesy of Shelly Hagan, Bloomberg and Erik Hertzberg, Bloomberg



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Real-estate mogul Monzer Hourani wins 2021 ENR Award of Excellence for setting a presto tempo to develop technology that mitigates transmission of COVID-19 in buildings.

Developer's Novel Virus-killing Air Filter Ups Standard for Indoor Air Quality

Monday, April 12, 2021 — Nadine M. Post - Engineering News-Record

Last April 13, as an ambulance sped him to the hospital, Monzer Hourani overheard the emergency medical technicians say they didn’t think he was going to make it. Immediately, the 77-year-old medical-building developer started praying: “God, give me time to finish this.”

Reprinted courtesy of Nadine M. Post, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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