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Penava Mechanical Corp. v. Afgo Mechanical Services, Inc.
2010 N.Y. App. Div. LEXIS 1973 (N.Y. App. Div. March 16, 2010)

In a contract dispute, the trial court granted motions for summary judgment filed by the general contractor and owner, dismissing counterclaims asserted by the subcontractor, and denied the subcontractor’s motion for summary judgment as to liability for such counterclaims. On appeal, the Appellate Division reversed the trial court’s order to the extent it granted the general contractor’s and owner’s motions for summary judgment.

Raito, Inc. v. Cardi Corp.
2010 R.I. Super LEXIS 61 (R.I. Super. April 10, 2010)

Cardi contracted with the State of Rhode Island for the construction of a new bridge over the Providence River on Interstate I-95. Cardi subcontracted with Raito to install a series of concrete foundation shafts for the bridge. With regard to the subcontract, Raito, as principal, and Western Surety Company, as surety, executed a standard AIA A312 performance bond.

Razorback Contractors Inc. v. Board of County Commissioners
227 P.3d 29 2010 Kan. App. LEXIS 35 (Kan. Ct. App. April 2, 2010)

The Court of Appeals of Kansas recently upheld a trial court’s decision to strictly enforce a written notification of differing site conditions provision in a construction contract.

The matter before the Court of Appeals involved construction of a sanitary sewer line in Southern Johnson County, Kansas. Defendant the Johnson County Board of County Commissioners contracted Plaintiff Razorback Contractors of Kansas, Inc., the successful bidder on the Project, to provide construction services in connection with the Project.

GEM Industrial, Inc. v. Sun Trust Bank
2010 U.S. Dist. LEXIS 31042 (N.D. Ohio Mar. 31, 2010)

The United States District Court for the Northern District of Ohio denied a contractor’s claims against a project’s lenders, where the contractor’s claims were based on the lender’s representations that the contractor would be paid.

GEM Industrial was the mechanical contractor for the construction of an ethanol production plant owned by GOE Lima, LLC. Due to budget overruns and cash flow problems, GOE fell behind on monthly payments to GEM. Eventually, GOE requested that GEM enter into a formal payment deferral. Before agreeing to the deferral, GEM asked to meet with representatives of the project’s debt and equity investors, SunTrust Bank and Paladin Homeland Security Fund, LP and Paladin Capital Group, LLC to confirm that sources of funding were available to pay construction costs. GEM asserts that, during its calls with SunTrust and Paladin, representatives for both entities promised and assured GEM that it would be paid for both its already completed work and its work going forward on the plant. After its calls with SunTrust and Paladin, GEM agreed to the payment deferral and continued to perform its mechanical work at the plant.

Excel Construction, Inc. v. HKM Engineering, Inc.
2010 WY 34 (Wyo. Mar. 23, 2010)

The Supreme Court of Wyoming recently reexamined its prior ruling barring a contractor’s assertion of negligence claims against design professionals economic loss rule.

The case pertained to a construction project for the replacement and improvement of water and sewer lines in the Town of Lovell, Wyoming. The Town of Lovell entered into an engineering services agreement with HKM Engineering, Inc. The Town also entered into a construction agreement with Excel Construction, Inc. No contract existed between HKM and Excel.

James J. Gory Mechanical Contracting Inc. v. Travelers Casualty & Surety Co.
2010 Phila. Ct. Com. Pl. Lexis 20 (Phila. CCP Feb. 8, 2010)

In February 2005, Surety issued payment bond of over $45 million on behalf of the general contractor for construction of student housing project at Temple University. Under terms of the payment bond, any claim, suit or action had to be brought within two years of bond’s issuance. General contractor entered into plumbing subcontract with Plaintiff, who certified that its work was 100% complete in October 2006. However, general contractor only paid Subcontractor for 95% of the work it completed.

DuBaldo Electric, LLC v. Montagno Construction, Inc.
119 Conn. App. 423; 2010 Conn. App. LEXIS 55 (Conn. App. Feb. 23, 2010)

Subcontractor, DuBaldo Electric contracted with general contractor, Montagno Construction to perform electrical work in connection with the renovation of retail space leased by Burlington Coat Factory.
DuBaldo had estimated that it could complete the work in 3200 man hours over the scheduled ten week period. Issuance of the permit required for DuBaldo to commence its electrical work was delayed three weeks due to deficiencies in Burlington’s architectural design and understaffing at the City electrical inspector’s office. Unable to perform the electrical work without a permit, DuBaldo fell approximately three weeks behind. Nevertheless, Montagno refused to update the schedule. To make up for lost time, DuBaldo agreed to work 7 days a week with overtime. In addition, Montagno hired Globe Electric to work along side DuBaldo, and deducted from DuBaldo’s account the amount it paid to Globe for work performed within DuBaldo’s scope.

North Amer Spec Ins. Co. v. Ames Corp./Dawson Building Contractors, Inc. JV
2010 U.S. Dist. LEXIS 25748 (S.D. Fla. Mar. 10, 2010)

Defendant Ames Corporation/Dawson Building Contractors, Inc. (Ames/Dawson), as general contractor, engaged American Roofing, LLC (American Roofing) to perform roofing work at the Veterans Administration Medical Center located in West Palm Beach, Florida. Plaintiff North American Specialty Insurance Company (NAS), as surety, issued performance bonds on behalf of American Roofing, naming Ames/Dawson, as obligee.

Boro Construction, Inc. v. Ridley School Dist.
2010 Pa. Commw. LEXIS 124 (Pa. Commw. Ct. Mar. 8, 2010)

The Pennsylvania Commonwealth Court ruled that where a contractor failed to submit an application for final payment, a school district was excused from its duty to tender final payment. At the same time, the Court held that the school district was not entitled to attorney’s fees pursuant to language in the contract’s no damage for delay clause because the clause specifically stated that the contractor was only required to reimburse the agency if it “loses [the] litigation,” and in this case, the contractor defeated some of the agency’s counterclaims.

Law Co. v. Mohawk Construction & Supply Co. Inc.
2010 U.S. Dist. LEXIS 24302 (D. Kan. March 16, 2010)

The United States District Court for the District of Kansas recently considered the enforceability of a no-damages-for-delay clause in a construction subcontract. After finding that the clause was enforceable, the Court rejected each of the exceptions urged by the subcontractor.

The matter before the District Court involved a series of contracts entered into with regard to the construction of a Cessna C-10 Citation Service Center in Wichita, Kansas (the “Project”). The project owner, Cessna Aircraft Company, retained plaintiff, The Law Company, Inc. (“Law”), to provide general construction services in connection with the Project. In turn, Law, entered into a series of subcontract agreements, including one with Mohawk Construction and Supply Company, Inc. (“Mohawk”). Mohawk’s subcontract contained a no-damages-for-delay provision, particularly providing that Mohawk’s sole remedy for delay was an extension of time.