Ten-Year Statute Of Repose To Sue For Latent Construction Defects

Number 10 with dart in middle of zero

Attorney David Adelstein discusses the nuance of statue of repose.

November 12, 2019
David Adelstein - Florida Construction Legal Updates

If you are dealing with latent construction defects, it is imperative that you consult with counsel to understand your rights. This not only includes claims for property damage stemming from latent construction defects, but also personal injury stemming from such defects. There is a ten-year statute of repose to sue for latent construction defects. See Fla.Stat. s. 95.11(3)(c). After the expiration of this statute of repose you are out of luck, meaning you can no longer sue.

Now, I probably will not be the first to tell you that the statute of repose is not written so clear that you know the precise date it ends (or the last date you can sue for a latent defect). For this reason, you really want to operate conservatively, meaning it is always better to sue early if you think you could be running on the end of the statute of repose period. It is always advisable to avoid any legitimate argument that you filed your construction defect lawsuit too late.

In Harrell v. The Ryland Group, 44 Fla. L. Weekly D2054b (Fla. 1st DCA 2019), a subsequent owner of a house sued the original homebuilder in negligence for a construction defect causing a personal injury. The subsequent owner claimed the homebuilder defectively installed an attic ladder (that provided access to the attic for the original construction) which collapsed as he was using it. The homebuilder filed a motion for summary judgment that the statute of repose expired so the owner’s claim was time-barred. The First District agreed.

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


Smart Contracts Poised to Impact the Future of Construction

Contractor working on laptop

Ohio has joined several other states to allow their businesses to take advantage of this technology.

November 12, 2019
Frederick D. Cruz and Seth Wamelink - Construction Executive

In August 2018, the State of Ohio passed legislation making it easier for businesses in Ohio, including the construction industry, to use blockchain technology in business transactions, which can result in significant savings and increased efficiency if used correctly. Specifically, Senate Bill 220 amends the Uniform Electronic Transactions Act (Ohio Rev. Code. 1306.01, et seq.) and ensures that records (or signatures) secured through blockchain are legally binding. With the enactment of this bill, Ohio has joined several other states to allow their businesses to take advantage of this budding technology. While the implications of this enactment are widespread, the use of “smart contracts” utilizing blockchain technology is particularly helpful in the construction industry to streamline certain processes and increase efficiency.

What is Blockchain?

While blockchain technology is most commonly associated with cryptocurrency (e.g., Bitcoin), the technology has far greater applications as it can be used to “eliminate the middle-man” in a variety of transactions across a broad spectrum of industries. At its core, blockchain is a decentralized ledger that allows transacting parties to interact directly (i.e., peer-to-peer) in a secure manner. Essentially, the blockchain “ledger” is where users record transactions. These transactions are then verified, viewed, and shared with others in the network. The information is stored across a peer network and allows for approved users to view the data simultaneously. It is often analogized to using GoogleDocs, where multiple people can access and edit the same document simultaneously. While that is an easy comparison, blockchain itself is a bit more complex.

Reprinted courtesy of Frederick D. Cruz & Seth Wamelink, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Cruz may be contacted at frederick.cruz@tuckerellis.com
Mr. Wamelink may be contacted at seth.wamelink@tuckerellis.com


A Year After Fatal Genoa Viaduct Collapse, Replacement Takes Shape

Broken wooden bridge over background of stormy clouds

The first steel box girder deck span spine was raised.

November 4, 2019
Peter Reina - Engineering News-Record

Nearly 14 months after the Morandi viaduct collapsed in Genoa, Italy, killing 43 people, crews placed the first section of a 1,067-meter-long, 19-span steel and concrete replacement structure.

Reprinted courtesy of Peter Reina, Engineering News-Record

Mr. Reina may be contacted at reina@btinternet.com

READ THE FULL STORY...


Economic Loss Not Property Damage

Money time quality triangle with money in red

Attorney Tred R. Eyerly analyzes Greenwich Ins. Co. v. Capsco Industries, Inc.

November 4, 2019
Tred R. Eyerly - Insurance Law Hawaii

The Fifth Circuit agreed with the district court that the insured subcontractor's economic losses did not amount to covered property damage. Greenwich Ins. Co. v. Capsco Industries, Inc., 2019 U.S. App. LEXIS 23949 (5th Cir. Aug 12, 2019).

Capsco Industries, Inc. was a subcontractor on the construction of a casino. Capsco subcontracted with Ground Control to install water, sewage, and storm-drain lines. Ground Control was terminated from the project by the general contractor for alleged safety violations and failed drug tests of its employees. Ground Control sued in state court against multiple parties, including Capsco, seeking payment for work on the project. The claims were dismissed on summary judgment because neither party had obtained the required certificates of responsibility from the state, making the parties' contract void. The Mississippi Supreme Court agreed the contract was void, but reversed and remanded for further proceedings based solely on theories of unjust enrichment and quantum meruit.

While the state case was on remand, Capsco's liability insurers, Greenwich Insurance Company and Indian Harbor Insurance Company, filed a compliant for declaratory judgment in federal district court seeking a declaration that they did not owe a defense or indemnity to Capsco. The defendants were Ground Control, Capsco, the general contractor, and the casino owner. The latter two parties were dismissed. Ground Control counterclaimed for coverage of its claims against Capsco. The district court stayed proceedings until the state court litigation ended.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


What Should Be in Every Construction Agreement

Two businessmen on table with contract

Six things should be addressed in every construction agreement.

November 4, 2019
Patrick Barthet - Construction Executive

A detailed and coherent construction agreement in place on every job minimizes confusion, makes clear everyone’s respective responsibilities and reduces disputes. There are six things that should be addressed in every construction agreement.

DEFINE THE SCOPE

Define what the scope of work is that will be provided. Will it be only materials; will it be materials and labor; or will it be just labor? Be very clear and specific in how the scope of work is spelled out. Many contracts state that the contractor is responsible for all work that’s shown on the plans and specifications, as well as that which is reasonably inferable. While subjective—even if not actually on the plans or specifications, someone may believe that something should be part of the contractor’s work. This could expand what has to be done beyond what was understood or priced.

LIST ALL THE EXCLUSIONS

Do the parties each have the same understanding as to what is covered in the contract? How often are contractors faced with customers thinking something was included as part of the work? The contractor may have believed that task, or that material, or that specially fabricated item was excluded. But was it? Did the contractor articulate what was and was not in the scope and price? Specifically listing what is excluded can obviate this problem. Articulate what is not in the price or scope and reduce the chance of one party believing that something is to be done when it isn't.

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

Mr. Barthet may be contacted at pbarthet@barthet.com


Admissibility of Expert Opinions in Insurance Bad Faith Trials

Woman sitting before panel

Attorney Dave McLain discusses Hansen Construction v. Everest National Insurance Co.

November 4, 2019
David M. McLain – Colorado Construction Litigation

In 2010, Hansen Construction was sued for construction defects and was defended by three separate insurance carriers pursuant to various primary CGL insurance policies.[i] One of Hansen’s primary carriers, Maxum Indemnity Company, issued two primary policies, one from 2006-2007 and one from 2007-2008. Everest National Insurance Company issued a single excess liability policy for the 2007-2008 policy year, and which was to drop down and provide additional coverage should the 2007-2008 Maxum policy become exhausted. In November 2010, Maxum denied coverage under its 2007-2008 primarily policy but agreed to defend under the 2006-2007 primarily policy. When Maxum denied coverage under its 2007-2008 primary policy, Everest National Insurance denied under its excess liability policy.

In 2016, pursuant to a settlement agreement between Hansen Construction and Maxum, Maxum retroactively reallocated funds it owed to Hansen Construction from the 2006-2007 Maxum primary policy to the 2007-2008 Maxum primary policy, which became exhausted by the payment. Thereafter, Hansen Construction demanded coverage from Everest National, which continued to deny the claim. Hansen Construction then sued Everest National for, among other things, bad faith breach of contract.

In the bad faith action, both parties retained experts to testify at trial regarding insurance industry standards of care and whether Everest National’s conduct in handling Hansen Construction’s claim was reasonable. Both parties sought to strike the other’s expert testimony as improper and inadmissible under Federal Rule of Evidence 702.

Mr. McLain may be contacted at mclain@hhmrlaw.com


Traub Lieberman Attorneys Named 2019 Super Lawyers

Gold stars on blue background

"We are very proud of all of our attorneys who have earned these distinctions and for being recognized as among the top and up-and-coming lawyers,” said Partner and Vice-Chair Lisa Shrewsberry.

November 4, 2019
Traub Lieberman

Related Attorneys: Jonathan R. Harwood, Michael K. Kiernan, Michael S. Knippen, Meryl R. Lieberman, Christopher Russo, Scot E. Samis, Lisa L. Shrewsberry, Stephen D. Straus, Richard K. Traub, Cheryl P. Vollweiler, Brian C. Bassett, Jessica N. Kull, Jeremy S. Macklin, Dana A. Rice, Burks A. Smith, III, Jason Taylor

Ten Traub Lieberman attorneys have been named 2019 Super Lawyers and seven named 2019 Rising Stars. The honored attorneys represent five of the firm's seven offices and nearly all of its service areas.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas, who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.


Eight Ways to Protect a Construction Company Before a Claim Is Filed

Number 8 with different color font illustration

Tips for protecting the construction firm before a claim is filed.

November 4, 2019
Mary Bacon - Construction Executive

Claims are inevitable in the construction industry. They can take on a life of their own and come with the burden of legal fees, wasted executive time and a possible judgment. Too often the only winners are the lawyers.

TIPS FOR PROTECTING MANAGEMENT AND THE BUSINESS BEFORE A CLAIM IS FILED

  1. Respect the business entity’s corporate structure. First and most importantly, respect the business entity’s corporate form. Legal entities have certain formalities like filing an annual list of officers, maintaining separate bank accounts, conducting certain meetings and following bylaws, etc. Respect these formalities. Failure to follow them exposes the owner to personal liability for company debts. And while a business claim has the potential to wipe out a business, owners should not risk having their personal assets on the line as well.
  2. Get a good contract. In most instances, a contract governs what happens and who is responsible for payment associated when a certain issue or dispute arises. A clear, well-written contract can often avoid a dispute or liability for a dispute. Actively participate in the contract negotiation and drafting process to make sure each party’s role and responsibilities are clearly accounted for.
  3. Make friends with clients. While it is true that “business is business,” people are often fairer and more willing to work towards a solution for people they are friends with. In most cases, friends will help friends in ways that people would not help mere business associates. When encountering a problem on a job, a friend may be willing to help achieve a more favorable outcome.

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

Ms. Bacon may be contacted at mbacon@spencerfane.com


From Linear to Circular in Construction: An Interview with Lu Ying

November 4, 2019
Aarni Heiskanen - AEC Business

Lu Ying recently co-founded Future Urban Living to explore sustainable solutions for businesses and cities in the Circular Economy through design thinking. Lu gave a great keynote speech at WDBE 2019 in Helsinki. We continue the discussion in this interview.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect

Expansion icon

HB1170 became effective on August 2, 2019.

November 4, 2019
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation Blog

The Colorado legislature had a busy session this year. Among the several significant bills it enacted, HB1170 strengthens tenant protections under the implied warranty of habitability. It became effective on August 2, 2019, so landlords and tenants alike are now subject to its requirements.

The bill makes numerous changes to Colorado’s implied warranty of habitability, and interested parties should review the bill in detail. Landlords in particular may want to consider retaining legal counsel to make sure they have proper procedures in place to promptly deal with any habitability complaints within the new required timelines. This posting is not intended to provide a comprehensive guide to the changed law, but simply to highlight some of the most significant changes.

With that caveat, landlords and tenants should be aware that as of August 2, 2019:

  • The following conditions are now deemed to make a residential residence uninhabitable for the purposes of the implied warranty of habitability:
    • The presence of mold, which is defined as “microscopic organisms or fungi that can grow in damp conditions in the interior of a building.”
    • A refrigerator, range stove, or oven (“Appliance”) included within a residential premises by a landlord for the use of the tenant that did not conform “to applicable law at the time of installation” or that is not “maintained in good working order.” Nothing in this statute requires a landlord to provide any appliances, but these requirements apply if the landlord either agreed to provide appliances in a written agreement or provided them at the inception of the tenant’s occupancy.
    • Other conditions that “materially interfere with the tenant’s life, health or safety.”

Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com


Despite Feds' Raised Bar, 2.8B Massachusetts Offshore Wind Project Presses On

Wind mills with blue sky

New U.S. Interior Dept. demands will delay construction of Massachusetts’ Wind Energy Farm.

November 4, 2019
Mary B. Powers - Engineering News-Record

Developers of the 800-MW, 84-turbine Vineyard Wind offshore wind energy farm in Massachusetts, set to be the first and largest commercial-scale project in the U.S., say they are committed to pushing through its $2.8-billion construction despite a sudden Trump administration permitting setback.

Reprinted courtesy of Mary B. Powers, Engineering News-Record

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


Regional Contractors See Market Strength Continuing Through 2020

November 4, 2019
Mark Shaw - Engineering News-Record

The struggle to meet ever-shorter project schedules with a limited workforce continues to dominate daily life for most contractors across the region. Steady in-migration and an economic boom in Boise, Salt Lake City and along Colorado’s Front Range are driving demand for new projects as firms scramble to keep up with record growth in those areas.

Mr. Shaw may be contacted at shawm@enr.com


Claims Made Insurance Policies

The word policy on ripped paper

The recent opinion in Crowely Maritime Corp. discussed the distinction between a claims-made insurance policy and an occurrence-based insurance policy.

November 4, 2019
David Adelstein - Florida Construction Legal Updates

“Claims-made policies are common in the professional liability insurance market. They “differ from traditional ‘occurrence’-based policies primarily based upon the scope of the risk against which they insure.” With claims-made policies, coverage is provided only where the act giving rise to coverage “is discovered and brought to the attention of the insurance company during the period of the policy.” In contrast, coverage is provided under an occurrence-based policy if the act giving rise to coverage “occurred during the period of the policy, regardless of the date a claim is actually made against the insured.” “The essence, then, of a claims-made policy is notice to the carrier within the policy period.”

Crowely Maritime Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2019 WL 3294003 (11thCir. 2019)

The recent Eleventh Circuit Court of Appeal opinion in Crowely Maritime Corp. discussed the distinction between a claims-made insurance policy and an occurrence-based insurance policy. Professional liability policies are generally claims-made policies whereas commercial general liability policies are generally occurrence-based policies. While this opinion does not involve a construction matter, the case did concern the definition of a “claim” in a claims-made policy and whether such claim was timely reported to the insurer within the discovery period / extended reporting period.

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


Three-Year Delay Not “Prompt Notice,” But Insurer Not “Appreciably Prejudiced” Either, New Jersey Court Holds

Illustration of judge sitting behind bench

Attorneys Anthony L. Miscioscia and Timothy A. Carroll discuss Harleysville Preferred Insurance Company v. East Coast Painting & Maintenance.

November 4, 2019
Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLP

In Harleysville Preferred Insurance Company v. East Coast Painting & Maintenance, LLC, 2019 U.S. Dist. LEXIS 135295 (D.N.J. Aug. 12, 2019) (East Coast Painting), the U.S. District Court for the District of New Jersey held that an insurer, which received notice of a bodily injury accident three years after it happened, was not “appreciably prejudiced” by such late notice, even as the court acknowledged notice three years later did not satisfy the policy’s “prompt notice” condition. The court also held that the policy’s “Operational Exclusion,” which excluded coverage for bodily injury arising out of the operation of “cherry pickers and similar devices,” did not apply because the accident arose out of the use of a “scissor lift,” which is not a device similar to a cherry picker.

East Coast Painting arose out of a Queens, New York bridge-painting project, during which an employee of the insured, East Coast Painting and Maintenance LLC was injured while “standing on a scissor lift mounted to the back of a truck,” owned and operated by East Coast. The employee sued various project-related entities which, in turn, joined East Coast as a defendant. East Coast sought coverage under its business auto policy, and the insurer agreed to defend the insured under a reservation of rights. The insurer subsequently sought a declaration that it did not owe coverage based on, among other things, the policy’s “Operational Exclusion,” and the insured’s failure to satisfy the policy’s “prompt notice” condition. The insurer moved for summary judgment on both of those bases, but the court in East Coast Painting denied the motion.

As for the insurer’s “prompt notice” defense, the court in East Coast Painting concluded that, the insured’s notice to the insurer was not prompt because it did not receive notice until three years after the accident. But, the court added, the inquiry does not end there. “[T]his Court must determine whether [the insurer] was appreciably prejudiced by that delay.” Reviewing the facts, the court held that the insurer was not “appreciably prejudiced,” even though during the three-year delay the lift truck was “not properly maintained” or “in the same condition it was at the time of the Accident.” The court observed that the insurer had “ample other evidence with which it can defend itself,” such as experts who inspected the lift truck and opined about the cause of the accident.” [Emphasis added.] Further, “there are multiple contemporaneous accident reports,” “a list of the East Coast employees on site at the time,” “photographs of the lift truck and its location when [the employee] was injured,” and “depositions of [the employee] and others regarding the events at issue.” Thus, the court held, the insurer was not prejudiced and summary judgment was inappropriate.

Reprinted courtesy of Anthony L. Miscioscia, White and Williams LLP and Timothy A. Carroll, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com


Recommendations for Property Owners After A Hurricane

November 4, 2019
Kelly A. Johnson, Ashley L. Cooper, Stephanie A. Giagnorio & Gregory D. Podolak - SDV Insights

If you suffered damage as a result of a hurricane, you should submit a claim under any insurance policy you have that might apply. This includes:

  • Flood insurance
  • Homeowner’s insurance
  • Renter’s insurance
  • Condo insurance
  • Auto insurance

Reprinted courtesy of Saxe Doernberger & Vita, P.C. attorneys Kelly A. Johnson, Stephanie A. Giagnorio and Gregory D. Podolak
Ms. Johnson may be contacted at kaj@sdvlaw.com
Ms. Cooper may be contacted at alc@sdvlaw.com
Ms. Stephanie may be contacted at sag@sdvlaw.com
Mr. Gregory may be contacted at gdp@sdvlaw.com


Miller Act Bond Claims Subject to “Pay If Paid”. . . Sometimes

Glasses lying on Payment Bond document

The construction contract’s terms affect when this collection tool can be used.

November 4, 2019
Christopher G. Hill - Construction Law Musings

The Federal Miller Act is a great tool that subcontractors and suppliers on Federal projects can use for collection of wrongfully withheld amounts due. However, as a recent federal case from the Eastern District of Virginia points out, the construction contract’s terms affect when a subcontractor or supplier can use this great collection tool and how much it can recover.

In Aarow v Travelers the Court looked at the interaction between a typical termination clause, a “pay when paid” clause, and the Miller Act. The key facts are these. The general contractor on the project at issue, Syska, did not get paid some disputed amounts by the owner and subsequently did not pay Aarow, the plaintiff and a subcontractor on the project. Aarow then refused to continue work and was terminated by Syska who then took over the completion of the work. Aarow sued, seeking damages for the value of its work prior to the termination. Travellers, the surety defended stating that, if Aarow was properly terminated for cause by Syska, then Aarow was not entitled to payment under the contract until such time as the work was completed and accepted by the owner. The termination clauses are set out in the linked opinion.

The Court agreed with Travelers, stating that the pay when paid clause created a situation whereby Aarow could not stop work merely because of a non-payment by Syska attributed to non-payment by the owner. The Court was clear in stating that the Miller Act trumps “pay when paid” in instances where the only cause for non-payment is non-payment by an owner. The Court then reasoned that it is the interaction between the termination and “pay when paid” provisions, and not the “pay when paid” clause itself, that exonerated Travelers because it created the default by Aarow due to its refusal to continue work. In short, Aarow was properly terminated for cause because it left the job without justification and therefore Travelers was not liable.

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


Hyundai to Pay 47M to Settle Construction Equipment's Alleged Clean Air Violations

Green environment word in puzzle

DOJ and EPA alleged Hyundai evaded new, tougher emission standards.

November 4, 2019
Tom Ichniowski - Engineering News-Record

Hyundai Construction Equipment Americas Inc. and its parent company are paying a $47-million civil penalty to settle federal allegations that the company sold construction vehicles that weren't certified to meet the appropriate Clean Air Act emissions standards, federal agencies say.

Reprinted courtesy of Tom Ichniowski, Engineering News-Record

Mr. Ichniowski may be contacted at ichniowskit@enr.com


6th Annual California Construction Law Seminar

November 4, 2019
Beverley BevenFlorez – CDJ Staff

This two-day seminar will cover State and Federal Case Law, Upcoming Trends: Advances with Modular Construction, Construction Industry Insurance, Forensic Scheduling and Delay Analysis, Environmental Law, and Alternative Dispute Resolution, as well as many other topics. Attendees include contractors, subcontractors, owners (public and private), attorneys, construction managers, bond program managers, surety representatives, architects, and engineers.

March 12th-13th, 2020
Hilton Garden Inn Los Angeles Marina del Rey
4200 Admiralty Way
Marina del Rey, CA 90292


California Supreme Court Holds that Requirement of Prejudice for Late Notice Defense is a Fundamental Public Policy of the State for Choice of Law Analysis

Man looking at watch with late expression

Hunton Andrews Kurth attorneys discuss Pitzer College v. Indian Harbor Insurance Co.

November 4, 2019
Lorelie S. Masters, Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog

California’s highest court held yesterday in Pitzer College v. Indian Harbor Insurance Co., that the state’s insurance notice-prejudice rule is a “fundamental public policy” for the purpose of choice of law analyses. This unanimous ruling, issued in response to certified questions from the Ninth Circuit, confirms and emphasizes California’s common law rule that policyholders who provide “late notice” may proceed with their insurance claim, absent a showing by the insurer of substantial prejudice. The California Supreme Court also extended the prejudice requirement, holding that a first-party insurer must show that it was prejudiced before denying coverage under a policy’s “consent provision,” which typically provides that the policyholder must obtain the insurer’s “consent” before incurring costs and expenses.

Reprinted courtesy of Hunton Andrews Kurth attorneys Lorelie S. Masters, Michael S. Levine and Michelle M. Spatz
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Spatz may be contacted at mspatz@HuntonAK.com


General Indemnity Agreement Can Come Back to Bite You

Two businessmen on table with contract and coffee cups

GIA’s are the agreements that allow a bonding provider to recoup any money paid out pursuant to either a payment or performance bond.

October 21, 2019
Christopher G. Hill - Construction Law Musings

I talk about payment bonds often here at Construction Law Musings. I talk a bit less about performance bonds and even less about the General Indemnity Agreements (GIA) that are signed by companies and their principals as part of the agreement between a construction company and its bonding company for the provision of these bonds. However, this does not mean that these GIA’s are not important. In fact, these are the agreements that allow a bonding provider to recoup any money paid out pursuant to either a payment or performance bond.

A 2018 case illustrates their importance. In Allegheny Cas. Co. v. River City Roofing, LLC, the Court considered a claim by Allegheny seeking both specific performance of the collateral agreement and reimbursement of certain expenses and investigative costs expended by Allegheny pursuant to its performance bond. Allegheny sought to be reimbursed for certain payments for siding work, investigative costs, and costs spent enforcing the GIA. Allegheny further sought to force the defendants to post sufficient collateral. To do so, Allegheny sued in the Eastern District of Virginia and then moved for summary judgment stating that the GAI uneuivocally required such a result due to the good faith payment for the siding work and the plain language of the GIA.

In response, the Defendants, River City Roofing and its principals that had personally guaranteed the indemnity, argued that the GIA did not apply to the siding work because only the roofing contract was subject to the performance bond and that any bond claims for which collateral was demanded were inchoate and therefore not proper for specific performance.

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



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