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Mastec North America, Inc. v. El Paso Field Services, L.P.
2010 Tex. App. LEXIS 3436 (Tex. App. May 6, 2010)

The Court of Appeals of Texas recently held that when a contract places the risk of differing site conditions on the contractor, the contractor is not required to bear the risk “that the bid documents misrepresent the nature and amount of the work to be performed.”

The matter involved replacement of a pipeline that extended from Houston to Corpus Christi. Defendant El Paso contracted with Plaintiff MasTec, for the replacement work.

Weigand Construction Co., Inc. v. Stephens Fabrication, Inc.
2010 Ind. App. LEXIS 1109 (Ind. Ct. App. June 25, 2010)

Ball State University (BSU) contracted with Weigand Construction Co. (“Weigand) to act as the general contractor for its Music Instruction Building project. Weigand subcontracted the structural steel work to Stephens Fabrication, Inc. (“Stephens”). Stephens was to manufacture the steel, perform certain engineering and prepare shop drawings. Stephens contracted with sub-subcontractors, Argo and Wilson, to perform the engineering and prepare the shop drawings.

Turnberry Pavillon Partners, L.P. v. M.J. Dean Construction, Inc.
2010 U.S. App. Lexis 9832 (9th Cir. May 13, 2010)

Developer built a luxury condominium tower and hired contractor to serve as both the construction manager and concrete subcontractor. A separate interior drywall and site wall subcontractor was also hired for the Project. A series of lawsuits arose. In the first lawsuit, construction manager was found liable for causing “lost production” and “uncompensated overtime” to site wall subcontractor due to its negligent concrete work as well as negligent construction management. While cross-appeals were pending on the matter Developer paid $2.1 to settle the site wall subcontractor’s claim. In a second case, condominium association sued Developer for construction defects. In turn, Developer filed a third-party complaint against construction manager as well as other subcontractors alleging that their negligence caused defects in the Project. Ultimately, the parties to the second suit reached a settlement whereby Developer and construction manager paid the condominium association $2 million and $600,000 respectively.

Village of Sturtevant v. STS Consultants, Ltd.
2010 Wisc. App. LEXIS 433 (Wis. Ct. App. June 9, 2010)

The Court of Appeals of Wisconsin recently considered whether a design professional could maintain a claim for contribution against a subcontractor on the basis that the subcontractor had a duty to advise that the design was not suited for the intended application. The Court of Appeals upheld the lower court’s dismissal of such claims on the basis that the subcontractor had no design or construction responsibility and therefore could not be a joint tortfeasor.

Harris Constr. Co., Ltd. v. GGP-Bridgeland, L.P.
2010 U.S. Dist. LEXIS 46477 (S.D. Tex. May 12, 2010)

The U.S. District Court for the Southern District of Texas determined that the issue whether the Texas Supreme Court would recognize a claim for breach of implied warranty against an owner or a design professional providing defective plans had been resolved by the Fifth Circuit in Interstate Contracting Corp. v. City of Dallas, 407 F.3d 708 (5th Cir. 2005). The Court concluded that the Texas would apply the Lonergan rule, which requires contractual language indicating an intent to shift the burden of risk of defective design to the owner or a design professional hired by the owner to make the plans and specifications.

Centex/Vestal J.V. v. Friendship West Baptist Church
2010 Tex. App. LEXIS 4346 (Tex. App. June 10, 2010)

The trial court denied a motion to confirm an arbitration award and granted a motion to vacate finding that the arbitrator exceeded his authority when he determined the validity of and awarded the general contractor damages on its pass through subcontractor claims. On appeal, the Court of Appeals reversed the trial court, holding that because of the breadth of the arbitration clause, the arbitrator was authorized to determine the pass through subcontractor claims, and entered an order confirming the arbitrator’s award.

Cleveland Construction, Inc. v. Kent State University
2010 Ohio 2906, 2010 Ohio App. LEXIS 2407 (Ohio Ct. App. June 24, 2010)

The Ohio Court of Appeals held that a contractor’s failure to submit claims in accordance with the contract’s dispute process and its failure to exhaust administrative remedies prescribed by statute would bar its claims regardless of assertions as to the futility or unfairness of such procedures.

Blesi-Evans Co. v. Western Mechanical Service, Inc.
2010 U.S. Dist. LEXIS 36302 (S.D. April 13, 2010)

Defendant Western Mechanical Services, Inc. entered into a contract with the state of South Dakota to replace boilers on the South Dakota School of Mines and Technology campus Western, in turn, solicited bids for the boilers. Western accepted Plaintiff Blesi-Evans Co.’s proposal to supply one of the boilers. A dispute arose out of the delay in the production and delivery of that boiler.

Lillibridge Health Care Services, Inc. v. Hunton Brady Architects, P.A.
2010 U.S. Dist. LEXIS 34210 (M.D. Fla. April 7, 2010)

Lillibridge Healthcare Services, Inc. sued Hunton Brady Architects, P.A. and Heery International, Inc. for breach of contract, negligent design, and negligent misrepresentation.

Hunton had entered into an agreement with Mediplex Medical Building Corporation (“MMBC”) to prepare documents and to provide other services for the construction of a four story, steel frame medical office building located in Celebration, Florida. MMBC assigned its rights under that contract to Lillibridge. Heery had assumed obligations under a subcontract with Hunton to perform the engineering work for the Project.

Acme Contracting, Ltd. v. Toltest, Inc.
2010 U.S. App. LEXIS 6144 (6th Cir. Mar. 24, 2010)

The Court of Appeals for the Sixth Circuit affirmed a District Court decision that a “no damage for delay” clause was void and unenforceable pursuant to Section 4113.62 of the Ohio Revised Code. The clause contained provisions requiring that any “delay must be reported in writing and an extension of time shall be the sole and exclusive remedy of Contractor for any such delays or suspensions, but only to the extent that a time extension is obtained from the Owner,” and that “no claims will be accepted for costs incurred due to delays caused by others except to the extent that such delays exceed four (4) months.”