NEWS

In Koba Mushkudiani v. Racanelli Construction Group, Inc., et al., an Appellate Division of the New York Supreme Court (“the Court”) affirmed summary judgment against the owner, general contractor, and developer of a construction project for violation of multiple New York Labor Laws. 2023 WL 5064219. Koba Mushkudiani (“Plaintiff”) was working on a construction site as a laborer for a window subcontractor when he sustained injuries after falling through an interior hole on the eighteenth floor of a construction site.

In Borel Builders, Inc. v. Burke, 292 A.3d 1117 (Pa. Super. Ct. 2023), the Superior Court of Pennsylvania upheld a judgment against a home builder and determined it waived its statute of limitation defense because it failed to plead sufficient facts to support the defense.

In Brown v. City of Oil City, 2023 WL 3471043 (Pa. May 16, 2023), the Supreme Court of Pennsylvania held that an out-of-possession contractor that has created a dangerous condition through work performed for a possessor of land who has accepted the contractor’s work may be liable to all persons suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature.

In 2014, Amy and William Dempsey purchased a vacant lot in a subdivision. The Dempseys hired an architect to design a home, who then contracted with Briggs Engineering to prepare plans for site grading, drainage, and erosion control. In 2015, the Dempseys entered into a contract with BrunoBuilt, Inc. to build the home, which called for the Dempseys to transfer ownership of the lot to BrunoBuilt via a quitclaim deed. The contract noted that the Dempseys would pay for the home upon its completion, and then BrunoBuilt would transfer ownership of the property back to the Dempseys.

In A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 719 (Tx. App. 2022), a Texas Court of Appeals found a road contractor was entitled to statutory immunity for a personal injury suit after the completion of the project, as it built the road in compliance with the Texas Department of Transportation’s (“TxDOT”) design.  In an issue of first impression, the Court held immunity was not limited only to ongoing construction, but also applied to accidents occurring after completion. 

In Univ. of Massachusetts Bldg. Auth. v. Adams Plumbing & Heating, Inc., 102 Mass. App. Ct. 1107 (2023), the Appeals Court of Massachusetts upheld the dismissal of the Plaintiffs’ claims because negligence was at issue in each count and thus barred by the Massachusetts’ statute of repose.

In Taylor Morrison of Texas, Inc. v. Skufca as Next Friend of KSX, the Supreme Court of Texas determined minor children who join their parents as plaintiffs in breach of contract claims based on construction defects in the home they resided in may be subject to arbitration clauses within the applicable purchase agreement based on the theory of direct-benefits estoppel. 2023 WL 443852, at *2 (Tex. Jan. 27, 2023).  Plaintiffs Jack and Erin Skufca (the “Parents”) and their minor children (collectively, “Plaintiffs”) sued Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, Ltd. (collectively, “Defendants”) for alleged construction defects in the home they purchased from Defendants.  The purchase agreement for the home contained an arbitration clause which required arbitration of “any and all claims, controversies, breaches or disputes by or between the parties hereto” that “aris[e] out of or relate[ ] to this purchase agreement, the property, the subdivision or community of which the property is a part, the sale of the property by seller, or any transaction related hereto,” whether those claims were based in “contract, tort, statute, or equity.”

In JPC Merger Sub LLC v. Tricon Enterprises, Inc., 2022 WL 17479912 (N.J. Super. Ct. App. Div. Dec. 7, 2022), the Appellate Division of the Superior Court of New Jersey upheld the enforceability of pay-if-paid provisions in subcontracts so long as the terms are “clear” and “unambiguous.”  Pay-if-paid provisions mean a subcontractor gets paid by the general contractor only if the owner pays the general contractor for that subcontractors work.  These provisions are meant to shift the risk of the owners nonpayment under the subcontractor from the contractor to the subcontractor.  These provisions are unenforceable in some states, enforceable as written in others, and enforceable only if the provision is clear and unambiguous in other states. Prior to this case, New Jersey had not weighed in on the issue through either statute or judicial opinion.

In Ascot Corporation, LLC v. I&R Waterproofing, Inc., the Court of Appeals of North Carolina recently held that a subcontractor responsible for waterproofing could properly pursue the manufacturer of the waterproofing system for breach of the implied warranty of merchantability, but not for breach of express warranty, contribution, or negligence-based indemnity. Additionally, the Court held the subcontractor could pursue a subcontractor responsible for landscaping for negligence-based indemnity and contribution.  No. COA22-19, 2022 WL 16937546, at *1 (Nov 15, 2022).

In Tinsley-Williamson ex rel. Tinsley v. A.R. Mays Construction, Inc., 195 N.E.3d 891 (Ind. Ct. App. 2022), the Court of Appeals of Indiana affirmed partial summary judgment in favor of A.R. Mays Construction, Inc. (“A.R. Mays”), a general contractor, on the ground that neither it nor any of its subcontractors had contracted with the company that employed the Plaintiff Ethan Tinsley (“Mr. Tinsley”).  Therefore, the Court held that A.R. Mays owed no duty to Mr. Tinsley.

In Franks v. Bilbrey, the Tennessee Court of Appeals held that a construction contract containing a target construction completion date and the phrase “start immediately” contained an implied “time is of the essence” term, which the contractor breached by delaying completion well beyond the target completion date. No. M2021-00766-COA-R3-CV, 2022 WL 4588871, at *1 (Tenn. Ct. App. Sept. 30, 2022).

In a ruling on an interlocutory appeal, the Florida District Court of Appeal for the Fifth District recently reversed a summary judgment in favor of Waters Mark Development Enterprises, LC (“WMDE”) against Brevard County (“the County”) because  WMDE had not proven that the County’s residential development density standard constituted an inordinate burden on WMDE’s use of its property intended for a subdivision. Brevard County v. Waters Mark Development Enterprises, LC, No. 5D21-1809, 2022 WL 41111172, at *1 (Fla. Dist. App. Sept. 9, 2022).

The Mississippi Court of Appeals recently held that a general contractor that sought to compel arbitration in a breach of contract dispute between it and another contractor did not waive its right to pursue arbitration by invoking the litigation process, when it entered a notice of default (that it later agreed to withdraw) and defended against its opponent’s dispositive and procedural motions, while insisting it did not waive its right to arbitration. S. Cent. Heating, Inc. v. Clark Constr. Inc. of Miss., NO. 2021-CA-00285-COA, 2022 WL 2313877, at *1 (Miss. Ct. App. Jun. 28, 2022).

In Donovan v. Hastings, the Supreme Court of Tennessee analyzed whether the trial and appellate courts properly limited an award of attorney fees and costs under Tennessee Code § 20-12-119(c) to a plaintiff homeowner to those incurred after the date an amended countercomplaint was filed by the defendant contractor. 2022 WL 12301177, at *1 (Tenn. June 27, 2022).

In A. Alexis Varela, Inc. v. Pagio, No. 5D21-2077, 2022 WL 1592482 (Fla. Dist. Ct. App. May 20, 2022), the Florida Fifth District Court of Appeal reversed a trial court’s order dismissing a contractor’s lien foreclosure claim. The Court of Appeal stated that the trial court erred in computing the deadline for the contractor to deliver an affidavit to the homeowners pursuant to Florida’s construction lien statute. The Court of Appeal held the affidavit was timely delivered according to Florida’s rules for the computation of time.

In KB Home Fort Myers LLC v. Taishan Gypsum Co., No. 2D21-384, 2022 WL 1099385 (Fla. Dist. Ct. App. Apr. 13, 2022), Florida’s Second District Court of Appeal reversed a trial court’s decision to vacate an $18 million default judgment against a supplier that sold defective drywall. The Court of Appeal reversed the trial court because the default judgment was not void and the drywall supplier waited over seven years to seek relief.

In Hernandez, et al., v. CGI Windows and Doors, Inc., No. 3D20-1318, 2022 WL 610122 (Fla. Dist. Ct. App. Mar. 2, 2022), Florida's Third District Court of Appeal reversed a jury verdict in favor of a window supplier and remanded the case for a new trial. The Court of Appeal held the trial court abused its discretion in allowing inadmissible unsworn pleadings showing other subcontractors on the project had been previously dismissed from the case pursuant to a stipulation for settlement.

The Tennessee Court of Appeals recently held Tennessee courts could exercise personal jurisdiction over Pierce & Allred Construction, Inc. (the “Defendant”), an Alabama-based company. Baskin v. Pierce & Allred Construction, Inc., No. M202100144COAR3CV, 2022 WL 258631 (Tenn. Ct. App. Jan. 28, 2022). The Court of Appeals also held Davidson County, Tennessee was a proper venue for the action, even though the allegedly defective construction took place in Alabama. This ruling reversed the trial court’s order granting the Defendant’s Motion to Dismiss for lack of personal jurisdiction and improper venue.

In Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., No. 3D20-1732, 2021 WL 6057113 (Fla. Dist. Ct. App. Dec. 22, 2021), the Third District Court of Appeal reversed the trial court’s decision to deny Lennar Homes, LLC’s (“Lennar Homes”) Motion to Compel Arbitration. The Court of Appeal held the arbitration provision was enforceable against Martinique at the Oasis Neighborhood Association, Inc. (“Neighborhood Association”).

In Gen. Contractors of Cent. Fla. LLC v. Heritage Prop. & Cas. Ins. Co., No. 3D21-34, 2021 WL 5617450 (Fla. Dist. Ct. App. Dec. 1, 2021), the Third District Court of Appeal affirmed the lower court’s decision to dismiss General Contractor of Central Florida’s (“General Contractors”) lawsuit seeking payment for work it performed on its client’s home.

Builder Sys., LLC v. Klamer, No. 1200433, 2021 WL 4472047 (Ala. Sept. 30, 2021) concerned a  contractor’s appeal from an order enforcing an arbitration award in favor of the homeowners. The Klamers purchased a home built with defective drywall. In 2011, they joined a class action against the manufacturer of the drywall. The class action settled, and, as part of the settlement, the plaintiffs chose to renovate their home, including replacing the defective drywall, some fixtures, and their HVAC unit.

In Childs v. Pommer, the Supreme Court of Alabama reviewed two appeals from judgment in connection with a construction contract. 2021 WL 4022619, at *1. With respect to the first appeal, the Supreme Court analyzed whether a subcontractor could be liable under a breach-of-contract theory when he was not a party to the contract. Under the second appeal, the Supreme Court analyzed whether the Plaintiffs should be allowed to pierce the corporate veil of the contractor company to pursue a post-judgment course of action against its sole owner.

In The Cottages at Stoney Creek Condominium Association, Inc., et al. v. JDR Construction, LLC, et al., No. 1D20-956, 2021 WL 2209851 (Fla. Dist. Ct. App. June 1, 2021), the Florida First District Court of Appeal affirmed the trial court’s decision granting summary judgment in favor of a general contractor on a statute of limitations defense. The trial court granted summary judgment in favor of the general contractor based on its determination that the owner knew or should have known of the alleged defects more than four years before suit was commenced. The trial court’s order discussed whether a six-year-old report established that the condominium association knew or should have known of the defects at issue in the case.

In Jones v. Reda Homebuilders, Inc., the Court of Appeals of Tennessee, at Nashville, analyzed whether the trial court properly denied Plaintiffs’ Motion for Attorney’s Fees based on the language of the construction contract. 2021 WL 2375883, at *1 (Tenn. Ct. App. June 10, 2021). The appellate court additionally analyzed whether the trial court’s award of damages was speculative.

Plaintiffs Frederick and Kimberly Jones (“Plaintiffs”) entered into a “New Construction Purchase and Sale Agreement” (the “Contract”) with the Defendant home builder, Reda Homebuilders, Inc. (“Reda”), on or about April 21, 2014. Reda provided Plaintiffs with a one-year builder’s warranty at closing. Within the applicable one-year warranty period, Plaintiffs discovered numerous defects in the construction of the home and brought suit against Reda for breach of contract, breach of warranty, and negligence.

In Clarksville Towers, LLC v. Straussberger, the Court of Appeals of Tennessee analyzed whether the trial court properly granted summary judgment for the owner of a corporation which was engaged as the contractor in a multi-million-dollar construction project. 2021 WL 1884636, at *1 (Tenn. Ct. App. May 11, 2021). The plaintiff, Clarksville Towers, LLC (“Clarksville Towers”), sought to hold the owner, John Straussberger, personally liable for the corporation’s alleged violations of the Tennessee Contractors Licensing Act (“TCLA”) and the Tennessee Consumer Protection Act (“TCPA”). The trial court determined the owner could not be held personally liable for the corporation’s alleged violations and granted summary judgment on the claims against Straussberger. The Court of Appeals of Tennessee affirmed the grant of summary judgment.

In JLB Builders, L.L.C. v. Hernandez, the Supreme Court of Texas analyzed whether the Texas Court of Appeals erred in finding a fact issue existed as to whether a general contractor on a construction project owed a duty of care to a concrete subcontractor’s employee who was injured on the job. 2021 WL 1822947, at *1 (Tex. May 7, 2021).

In March 2018, a pedestrian bridge collapsed at Florida International University (“FIU”) in Miami-Dade County, Florida. Magnum Construction Management, LLC v. WSP USA Solutions, Inc., 2021 WL 799448 (S.D. Fla. 2021). FIU had retained Plaintiff Magnum Construction Management, LLC (“Magnum”) to design and construct an elevated pedestrian bridge. Magnum contracted with FIGG Bridge Engineers, Inc. (“FIGG”) to perform all design and engineering services for the bridge. FIGG then contracted with The Louis Berger Group, Inc. (“Louis Berger”) for an independent peer review of certain aspects in the bridge’s design.

In Kanza Constr., Inc. v. Kansas City S. Railways Co., the Mississippi Court of Appeals analyzed whether the circuit court properly granted partial summary judgment when it found, as a matter of law, that a construction company was not entitled to acceleration damages on the contract it breached. 2021 WL 670993 (Miss. Ct. App. Feb. 22, 2021).

In Paschen v. B&B Site Development, Inc., the parties to a subcontract disagreed over the scope of work required for the project. 2021 WL 359487 (Fla. App. Ct. 2021). Plaintiff F.H. Paschen, S.N. Nielson & Associates (“Paschen”) worked as the general contractor for the United States Postal Service to perform construction work at a post office in Okeechobee, Florida. Paschen’s contract with the Postal Service required it to “verify all dimensions shown of existing work” and to report any discrepancies prior to submitting a price proposal.

In Hayward Baker, Inc. v. Westfield Ins. Co., the Florida District Court of Appeal, Second District, reversed a lower court’s order denying a subcontractor’s motion for attorneys’ fees under Florida Statutes, Section 713.29.  2020 WL 7767859, at *1 (Fla. Dist. Ct. App. Dec. 30, 2020). The underlying case stemmed from construction of an addition to University Community Hospital in Carrollwood, Florida.

In Bristol Southside Association, Inc. v. Meridian Construction & Development, LLC, the United States District Court for the Northern District of Alabama denied the Defendant’s Motion for Summary Judgment, which it supported by arguing the Plaintiff’s claims were barred under Alabama’s statute of repose. 2020 WL 6712270.

In Liberty Constr. Co., LLC v. Curry, the Tennessee Court of Appeals, Nashville Division, reversed a lower court’s holding that the owners of a commercial building failed to provide a construction company with notice and a reasonable opportunity to cure a defect it allegedly caused. 2020 WL 6158461, at *1 (Tenn. Ct. App. Oct. 21, 2020).

In Optum Construction Group, LLC et al. v. City Electric Supply Company, 2020 WL 5792581 (Ga. App. 2020), appellee City Electric Supply Company (“City Electric”) furnished materials to Palmetto Power Services, LLC (“Palmetto Services”), an entity that represented itself as a subcontractor for a hotel construction project on which appellant Optum Construction Group, LLC (“Optum”) was the general contractor. After Palmetto Services failed to pay City Electric for the materials, City Electric sued Palmetto Services and filed a materialman's lien on the hotel and real estate (“the Property”) on which it was constructed. Optum and its surety, Fidelity and Deposit Company of Maryland (“Fidelity”), discharged the lien by filing a bond.

In Edwin Taylor Corp. v. Mortg. Elec. Registration Sys., Inc., the Florida District Court of Appeals, Third District, analyzed whether a subcontractor’s properly perfected claim of a construction lien could relate back to the date the general contractor recorded a notice of commencement that was not signed by the property owner for purposes of determining the priority of competing interests in lien foreclosure action. 2020 WL 3261177 (Fla. Dist. Ct. App. June 17, 2020). The issue was one of first impression for the Court.

In Decks N Such Marine, Inc. v. Daake, the District Court of Appeal of Florida, First District, considered whether a trial court’s award of attorney’s fees to a junior interest holder in a construction lien enforcement action was proper under Section 713.29, Florida Statutes (2018). 2020 WL 2507500 (Fla. 1st Dist. Ct. App. 2020). The Appellate Court found that junior interest holders are not entitled to attorney’s fees as the prevailing party in an action brought to enforce a construction lien.

In Baker v. Rabren General Contractors, Inc., 2020 WL 12145326 (M.D. Ala. 2020), the United States District Court for the Middle District of Alabama analyzed whether an arbitration provision in an unsigned subcontract was enforceable. Defendant Rabren General Contractors, Inc. (“Rabren”) filed a Motion to Compel Arbitration in the suit brought against it by Plaintiff Charles Baker (“Baker”), pursuant to an arbitration provision in an unexecuted written contract drafted by Rabren. The subcontract purported to be for concrete work by Baker on a construction project Rabren had been awarded to build a new high school in Auburn, Alabama (the “Auburn Project”).

In Management & Consulting, Inc. v. Tech Electric, Inc., the District Court of Appeal of Florida, Third District, reviewed a lower court’s denial of a motion for discharge of a mechanic’s lien. 2020 WL 1540958 (Fla. 3d Dist. Ct. App. 2020). The Appellate Court found a subcontractor failed to comply with the requirements of section 713.21(4), Florida Statutes, when it asserted the validity of its mechanic’s lien, but failed to show good cause as to why its lien had not been enforced or file a foreclosure suit within the statutory timeframe.

In Mississippi State Board of Contractors v. Hobbs Construction, LLC, the Supreme Court of Mississippi analyzed whether the Mississippi State Board of Contractors (“the Board”) deprived Hobbs Construction, LLC (“Hobbs”) of its procedural right to due process. 2020 WL 1081410 (Miss. 2020).

In Goudy Construction, Inc. v. Raks Fire Sprinkler LLC, Plaintiff Goudy Construction, Inc. (“Goudy”) served as the general contractor for a project for which Defendant Raks Fire Sprinkler LLC (“Raks”) submitted a bid to install a fire sprinkler system. 2019 WL 6841067 (N.D. Ala. 2019). Goudy accepted Raks’ bid and entered into a contractual agreement that required Raks to provide commercial liability insurance for the duration of the Project and was also required to provide a performance bond with Goudy as the owner. Raks complied with these requirements, purchasing the performance bond from Defendant Aegest Security Insurance Company (“Aegest”).

The Middle District of Florida held that a client-owner was not unjustly enriched despite a subcontractor’s belief that the client-owner was undercharged by the general contractor. In Commercial Repairs and Sales, LLC v. Signet Jewelers Limited, Plaintiff Commercial Repairs and Sales, LLC (“CRS”) provided construction improvement and facility management. Defendant Signet Jewelers Limited (“Signet”) is a jewelry conglomerate with retail locations around the world.

In E Solutions for Buildings, LLC v. Knestrick Contractor, Inc., et al., appellant E Solutions for Buildings, LLC (“E Solutions”) challenged the trial court’s award as it related to a subcontractor’s payments owed to E Solutions. 2019 WL 5607473 (Tenn. Ct. App. 2019). The case stemmed from the construction of the Centennial Sportsplex Indoor Fitness Expansion Building (the “Sportsplex”) by the Metropolitan Government of Nashville and Davidson County (“Metro”). Metro entered into a contract with Knestrick Contractor, Inc. (“Knestrick”) for the construction of the Sportsplex (the “Contract”). Under the Contract, Knestrick was obligated to accomplish substantial completion of the project by December 2, 2013.

In ALA Construction Services, LLC v. Controlled Access, Inc., ALA Construction Services, LLC (“ALA Construction”) hired subcontractor Controlled Access, LLC (“Controlled Access”) to provide equipment and related services for the construction of townhomes. 2019 WL 4463305 (Ga. App. Ct. 2019). Pursuant to their written contract, Controlled Access signed two documents entitled “Interim Waiver and Release Upon Payment”, which required it to file an affidavit of nonpayment or a claim of lien within a 60 day period or else the amount due to it by ALA Construction would be considered paid in full. ALA Construction failed to pay the agreed upon amount, but Controlled Access did not file an affidavit within the required time period.

In Jeanes v. McBride, Plaintiff Janet Jeanes (“Ms. Jeanes”) brought a suit against Defendant Greg McBride (“Mr. McBride”) regarding Mr. McBride’s construction of a building on a plot of land owned by Ms. Jeanes. 2019 WL 2583113 (W.D. La. 2019). Ms. Jeanes told Mr. McBride that she wanted a building for spaces for her horses and living quarters for herself (“the Building”).

In Construction Services Group, LLC v. MS Electric, LLC, 2019 WL 2710115 (Ala. Civ. App. 2019), the parties entered into an agreement with the Alabama Public School and College Authority. The agreement provided that Construction Services Group, LLC (“Construction Services”) would act as the general contractor on a construction project for additions and alterations to Montevallo Middle School (“the Project”). MS Electric, LLC (“MS Electric”) submitted a bid to perform the electrical work on the Project, which Construction Services accepted.

In United States for Use and Benefit of Cleveland Construction, Inc. v. Stellar Group, Inc., the Middle District of Georgia considered the issue of whether a contract provision allows a contractor to recover attorneys’ fees, even where that contractor did not prevail on all of its claims. 2019 WL 338887 (M.D. Ga. 2019). Stellar Group, Inc. (“Stellar”) subcontracted with Cleveland Construction, Inc. (“Cleveland”) to provide certain...

In D.R. Horton, Inc. v. Heron’s Landing Condo. Assn. of Jacksonville, Inc., No. 1D17-1941, 2018 WL 6803698 (Fla. Dist. Ct. App., 1st Dist. 2018), the First District Court of Appeals of Florida affirmed a Florida Circuit Court’s ruling that a breach of the implied warranty of habitability did not require a condominium to be uninhabitable.

In Precision Roofing, Inc., Appellant v. David Zavelson & Tracy Zavelson, Appellees, No. 03-17-00550-CV, 2018 WL 5852680, at *1 (Tex. App. Nov. 9, 2018), the Texas Court of Appeals addressed the validity of a subcontractor’s materialman’s liens.

In Blok Builders, LLC v. Katryniok, No. 4D16-1811, 2018 WL 637399 (Fla. Dist. Ct. App. Jan. 31, 2018), the District Court of Appeal of Florida, Fourth District, overturned a trial court’s decision requiring a subcontractor to defend and indemnify a project owner based on a reference in the Subcontract which adopted and incorporated by reference the terms of the General Contract, that include an indemnification provision between the Owner and General Contractor.

In Patrick Durkin v. MTown Construction, LLC, N No. W201701269COAR3CV, 2018 WL 1304922, (Tenn. Ct. App. Mar. 13, 2018), the Court of Appeals of Tennessee overturned an award of property damages which was predicated in part upon the diminution of property value based upon a finding that the defendant had failed to present sufficient evidence establishing the unreasonableness of the costs to repair the real property.

In Ballard v. Lee A. McWilliams Constr., Inc., No. 2160469, 2018 WL 670459, at *1 (Ala. Civ. App. Feb. 2, 2018), the Alabama Court of Civil Appeals determined an award of prejudgment interest is due despite a defense that such damages should not be recoverable given that they were not “certain” at the time of the alleged breach due to the parties’ disagreement on the amount owed under the oral cost-plus contract.

In Devin B. Strickland v. Arch Insurance Company, No. 17-10610, 2018 WL 327443 (11th Cir. Jan. 9, 2018), the Eleventh Circuit Court of Appeals affirmed the District Court’s determination that Strickland’s claim against the bond surety was time-barred due to his waiting more than one year after the completion of the contract and the acceptance by the public authority to bring suit. 

In Perez-Gurri Corp. v. McLeod, No. 3D15-2590, 2017 WL 5616924, at *1 (Fla. Dist. Ct. App. Nov. 22, 2017), the District Court of Appeal of Florida, Third District, overturned a trial court’s decision to preclude a general contractor from seeking delay damages on the basis that the subcontractors were not intended third-party beneficiaries of the contract between the general contractor and the owner.

In Sears, Roebuck & Co. v. Hardin Constr. Grp., Inc., 697 F. App'x 637 (11th Cir. 2017), the United States Court of Appeals for the Eleventh Circuit affirmed the United States District Court for the Southern District of Alabama’s conclusion that a specific written timeframe is necessary in order to extend Alabama’s statute of repose.

In Team Contractors, L.L.C. v. Waypoint Nola, L.L.C., et al., No. CV 16-1131, 2017 WL 4366855 (E.D. La. Sept. 29, 2017), the United States District Court for the Eastern Division of Louisiana concluded that because the contract was ambiguous as to whether the type of lost profits sought in the case were considered “consequential damage” by the terms of the contract, the matter was not ripe for summary judgment as it required it to determine whether the parties intended such damages to fall within the contract’s “consequential damages” waiver.

In Don Facciobene, Inc. v. Hough Roofing, Inc., No. 5D15-1527, 2017 WL 3091578 (Fla. Dist. Ct. App. July 21, 2017), the Fifth District Court of Appeal of Florida held that although a valid merger clause in subcontract signed after the subcontract was almost completed, it applied retroactively to the date work first commenced.  However, the Court held that failure by general contractor to plead an affirmative defense regarding a condition precedent in the subcontract with enough specificity and particularity as required under Florida Rules of Civil Procedure barred it from relying upon what otherwise would have been an enforceable provision of the subcontract and, thus, the general contractor was required to pay the subcontractor in full. 

In Am. Builders & Contractors Supply Co. v. Precision Roofing & Consulting, LLC, No. 2:17CV97-WHA, 2017 WL 3431844, (M.D. Ala. Aug. 9, 2017), the United States District Court for the Middle District of Alabama dismissed a breach of contract claim filed against a distributor that provided supplies to a roofing subcontractor in light of the plaintiff, a subcontractor, having failed to obtain its own license at the time work commenced.

In LaShip, LLC v. Hayward Baker, Inc., No. 15-30816, 2017 WL 829503 (Mar. 1, 2017), the Fifth Circuit held a commercial contractor was not required to warn the owner of alleged defects in the design specifications of foundation columns that were provided by the engineer despite the fact the contractor had specialized experience in foundation design.  The Fifth Circuit refused to broaden the affirmative tort duty to warn based on a party’s expertise and upheld the statutory protections for the contractor.

In Anderson v. Taylor Morrison of Florida, Inc., No. 2D16-314, 2017 WL 2374404 (Fla. Dist. Ct. App. May 31, 2017), the Second District Court of Appeal of Florida held an arbitration provision in a homeowner’s sales agreement was void as against public policy because it limited the homeowner’s statutory remedies. 

In Busch v. Lennar Homes, LLC, No. 5D16-1626, 2017 WL 1372085 (Fla. Dist. Ct. App. April 13, 2017), Florida’s Fifth District Court of Appeals found the trial court improperly dismissed the Homeowner’s complaint regarding construction defects based on the ten year statute of repose.  The Court determined the Homeowner’s complaint was not barred by the ten year statute of repose, because the purchase contract contained a provision allowing the builder to correct defects within a reasonable time after closing and the complaint did not conclusively establish that such repair work did not occur.

     In Golden Nugget Lake Charles, LLC v. W.G. Yates & Sons Constr. Co., No. 16-30496, 2017 WL 892407 (5th Cir. Mar. 6, 2017), the Fifth Circuit Court of Appeals determined the 60-day period for general contractors to file a lien against a project owner’s property under Louisiana Private Works Act § 9:4822(B) does not begin to run until the owner files either a Notice of Termination or a Notice of Substantial Completion.  The Court rejected the owner’s interpretation of the statute that the 60-day period begins when the event of substantial completion occurs, not when the Notice of Substantial Completion is filed.

  In Sierra Pacific Industries v. Bradbury, 2016 WL 4699116 (Colo. App. September 8, 2016), the Colorado Court of Civil Appeals, Division I, upheld the district court’s entry of summary judgement in favor of a subcontractor on an indemnification claim for damages, costs and expenses related to an underlying construction defect claim brought by the condominium association based on the statute of repose.

    In Centerpoint Builders GP, LLC v. Trussway, Ltd., 2016 WL 3413329 (Tex. 2016), the Texas Supreme Court held the general contractor, Centerpoint Builders, LLC (“Centerpoint”), was not a “seller” under the Texas Products Liability Act and could not obtain indemnity from the manufacturer of the defective product even though Centerpoint had not altered the product in any form.   

  In Schindler v. Tully Construction Co., 139 A.D.3d 930 (May 18, 2016), the New York Supreme Court, Appellate Division, reversed a trial court’s award of $209,000.00 in delay damages in favor of a subcontractor on a public contract in a nonjury trial.

In County of Galveston v. Triple B Services, LLP, 2016 WL 3025261 (Tex. Civ. App. May 26, 2016), the Court of Appeals of Texas held a contractors’ breach of contract claim against a county fell within the scope of sovereign immunity waiver for construction contracts.  The Court determined the disruption damages sought by the contractor were "a direct result of owner-caused delays,” and the Texas statute providing limited waiver of sovereign immunity for delay damages was applicable.

In Dallas/Fort Worth International Airport Board v. INET Airport Systems, Incorp., et al., 2016 WL 1445205 (5th Cir. April 12, 2016), the Fifth Circuit Court of Appeals reversed a trial court’s $1.29 million judgment in favor of the contractor and against the owner.  The Fifth Circuit determined genuine issues of fact remained regarding whether the owner first breached the contract by failing to cooperate with the contractor to resolve change orders.