Albert Bates, Jr. and Danielle J. Volpe were published in Mealey’s International Arbitration Report with their article, “Zooming Ahead: Challenges and Considerations for Virtual International Arbitration Proceedings in the Wake of COVID-19 Pandemic.”
Danielle Volpe is a former associate of Troutman Pepper who recently became the General Counsel of Posillico Construction.
United Illuminating Company v. Whiting-Turner Contracting Co. v. Cherry Hill Construction Co., Inc., et al. v. GEI Consultants, Inc., et al., 3:18-cv-00327-WWE (D. Conn. 2019)
In 2010 The United Illuminating Company (“UI”), an electric utility company, and Whiting-Turner, a construction contractor, entered into a general contractor agreement for the construction of the United Illuminating Central Facility Project (the “Project”) in Orange, Connecticut. The Project required construction of an office building, an operations building, and related parking lots and common driveways. Whiting-Turner and Cherry Hill Construction Co. (“Cherry Hill”), a heavy civil construction contractor, then entered into a subcontractor agreement which required Cherry Hill to perform site work.Continue Reading Courts Decline to Impose Liability on Subcontractor Where Contractor Could Not Prove Subcontractor’s Exclusive Control on Shared Project Site
Whiting-Turner Contracting Co. v Guar. Co. of N. Am. USA, 2019 BL 97923 (Colo. App. Mar. 21, 2019).
This construction dispute involved rights and obligations under a performance bond supplied for an office building construction project in Denver, Colorado. Whiting-Turner Contracting Company was the general contractor, and it subcontracted Klempco Construction to construct an anchor system for the project’s underground parking garage. Klempco provided performance and payment bonds for the project from Guarantee Company of North America USA (“GCNA”). When Klempco fell behind schedule, it stopped paying its sub-subcontractors and directed Whiting-Turner to assume responsibility for its work and sub-subcontractors.Continue Reading Colorado Court of Appeals Finds Contractor Satisfied Conditions Precedent Under Performance Bond
CB&I Areva Mox Servs., LLC v. United States, 2018 U.S. Claims Lexis 1549 (November 9, 2018)
Nearly two decades ago, the Department of Energy, National Nuclear Security Administration (“NNSA”) awarded a contract for the design, construction and operation of a Facility at the Savannah River Nuclear Site (‘the Contract”) to Mox Services’ (“Mox’s”) predecessor in interest, Duke, Cogema, Stone & Webster, LLC. Mox has no employees and subcontracts out the entirety of its work under the Contract to subcontractors. CB&I Project Services Group (“CPSG”), Mox’s parent company, was the principal subcontractor. The Contract followed a “cost reimbursement” model whereby NNSA would pay Mox for certain allowable costs that Mox incurred in performing the Contract.
In 2015, CPSG began an employee “re-slotting” process where CPSG changed its employees titles and, in some cases, their compensation. During this process, CPSG put nearly all of its non-craft workforce (roughly 863 employees) into new positions. Of the 863 employees, 55 received salary increases. CPSG increased its billing rate for these 55 employees. Mox did not specifically notify NNSA about this re-slotting and increase, but instead provided the increased billing rates to NNSA as part of its pay requisitions. In April 2016, upon realizing the increase, NNSA notified Mox that the information it provided to justify the salary increase was insufficient and requested additional information, and warned it would take “appropriate action” to protect itself. The NNSA later withheld 2% of the total direct non-craft labor expenses –$1,142,112.00.
Continue Reading Government’s Notice That It Questioned Certain Costs and Would Take ‘Appropriate Action’ Is Not a Notice of ‘Disallowance’ as Required by the Contract: Contractor Granted Summary Judgment for Over $1 Million
Bridgwood v A.J. Wood Constr., Inc., 2018 Mass. Lexis 561 (Sup. Ct., Aug. 29, 2018)
On October 30, 2000, the city of Newburyport, through its housing rehabilitation program, awarded A.J. Wood a contract for the rehabilitation of Ms. Terry Bridgwood’s home in Newburyport. Under the city’s contractor agreement for the housing program, Wood was required to comply with certain standards, including that all rehabilitation, alterations, repairs, or extensions be in compliance with all applicable Federal, State, and local codes. The agreement also required that all contractors and subcontractors must obtain and maintain all necessary permits, and must certify that the work complied with all Federal, State, and local regulations of the Massachusetts home improvement law, among other things. The work on the Bridgwood home was completed by Wood in 2001.
In 2012, Bridgwood’s home suffered a substantial fire. She filed suit in the state superior court in 2016, under the Consumer Protection Statute, claiming that Wood and its electrical subcontractor failed to obtain a permit to replace or repair certain ceiling light fixtures on the premises. Additionally, she alleged that none of the defendants gave proper notice to local inspectors, nor did they perform their work in compliance with the applicable Federal, State, or local codes, as required by the contractor agreement.
Wood moved to dismiss Bridgwood’s lawsuit as untimely under the statute of repose. The Superior Court agreed and dismissed the suit. Bridgwood appealed and the appeal was transferred to the Supreme Court. A divided Supreme Court affirmed in a 4-3 decision.
Continue Reading Sharply Divided Massachusetts Supreme Court Holds That the Statute of Repose Bars a Homeowner’s Claim Against a Contractor Under the Consumer Protection Statute
Ambac Assur. Corp v. Knox Hills LLC, 2018 Ky. App. Lexis 188 (June 15, 2018)
This case involves a February 1, 2007 design/build agreement governing the rights of the several parties involved with a military housing construction and renovation project at Fort Knox, Kentucky. Knox Hills, LLC (the owner) filed a breach of contract action against Ambac Assurance Corporation (the senior lender of the project) relating to what it characterized as Ambac’s wrongful withholding of consent to a change order that would have substantially reduced the scope of the project. Knox Hills then sought an order staying the proceedings and compelling Ambac to arbitrate. The circuit court granted the motion and, following an arbitration, entered an order confirming the arbitrator’s award in favor of Knox Hills. Ambac then appealed the court’s order.
On appeal, the Kentucky Court of Appeals focused on two questions: (1) whether the court or the arbitrator should have determined whether arbitration was required between Knox Hills and Ambac, and (2) whether arbitration was actually required.
Continue Reading Kentucky Court of Appeals Draws a Distinction Between Substantive and Procedural Questions of Arbitrability, and Explains the Proper Role for the Courts
