On December 9, 2011, New York became one of a growing number of states to pass legislation to allow design-build delivery for certain infrastructure projects. Given the current trend in repairing and replacing aging infrastructure through public private partnerships (“P3”), which traditionally use the design-build model, the passage of the design-build legislation may be a precursor to formal legislation allowing P3’s in New York.
Contracting Around the Discovery Rule: The Oregon Court of Appeals Enforces a Clause in a Construction Contract That Defined the Date of Accrual
Parties to construction contracts often include provisions that set forth time frames to file actions arising out of the contract that are different than the applicable statute of limitations. In the absence of any statutory prohibition, contract provisions limiting the time to file an action to less than the applicable statute of limitations are generally enforceable provided the time frame is reasonable. Although perhaps less common, some construction contracts include provisions that attempt to define when the applicable limitations period begins to run (i.e. when causes of action arising out of the contract accrue).
A Contractor’s Repair Estimate Provides Evidence of an Ascertainable Loss Under the New Jersey Consumer Fraud Act
The New Jersey Consumer Fraud Act (“CFA”) allows parties to recover damages if they have suffered an ascertainable loss. See N.J.S.A. 56:8-19. In the recent decision from the New Jersey Appellate Division, Pope v. Craftsman Builders, Inc., the court considered the type of evidence that can provide proof of an ascertainable loss in the context of a CFA claim involving a construction project.
Not All Wrongs are the Same: The Florida Supreme Court Holds That a Contractor That Knowingly Hires an Unlicensed Subcontractor Can Recover for Breach of Contract Against That Subcontractor
Like other states, Florida regulates parties in the construction industry and requires that contractors performing certain work be properly licensed. See Flor. Stat. Ch. 489. If an unlicensed contractor enters into a construction contract it cannot enforce that contract. See Flor. Stat. Ch. 489.128. In the recent decision in Earth Trades, Inc. v. T&G Corp., the Florida Supreme Court considered the impact of this law in a contract dispute between an unlicensed subcontractor and a general contractor, where the subcontractor claimed that the general contractor knew that it was unlicensed.
Copyrighted Designs Afford Basis for Federal Court Claims for Infringement by Architects Seeking Payment for Their Design Drawings
Disputes can arise when a design professional prepares plans for an owner and the owner then uses those plans without compensating the architect. In H2L2 Architects/Planners, LLC v. Tower Investments, Inc., a case from the Eastern District of Pennsylvania, the court considered the pleading requirements for unpaid architects to assert claims for payment against owners/developers for architectural design and drawings under federal law.
Caveat Venditor (Supplier Beware): The Importance of Accurate Accounting When Providing Materials to Contractors Working on Multiple Projects
A recent New Jersey Appellate Division case imposes a significant burden on lien-claimant material suppliers that supply materials to contractors on multiple construction projects. As discussed in the February 13, 2013, article “A Duty to Inquire Under Lien Law,” New Jersey Law Journal, Vol. 211 – No. 6, the court in L&W Supply Corp. v. DeSilva, addressed what is necessary for a material supplier to satisfy its obligation to apply payments on the account from which the payment obligation arises in order to preserve its construction lien rights, if any.
Judge Robert J. Bryan of the United States District Court for the Western District of Washington recently issued two opinions in United States v. Washington State Department of Transportation that could have significant implications on the scope and extent of liability under the Comprehensive, Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq., particularly at urban river sites and harbors. Both decisions examine the liability of the Washington State Department of Transportation (“WSDOT”) at the Commencement Bay/Nearshore Tidelands Superfund Site.