James M. Kwartnik Jr.

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Milton Reg’l Sewer Auth. v. Travelers Casualty & Surety Co., 2014 U.S. Dist. LEXIS 155419 (M.D. Pa. Nov. 3, 2014)

The United States District Court for the Middle District of Pennsylvania ruled that multiple instances of incomplete and/or defective performance by a contractor did not amount to a material breach so as to excuse the owner from providing notice and an opportunity to cure prior to termination.

Wyman v. Ayer Properties, LLC, 469 Mass. 64,  2014 Mass. LEXIS 524 (July 10, 2014)

The Massachusetts Supreme Court ruled that the economic loss rule, which bars recovery of tort damages from the negligent supplier of a defective product when there is no claim of personal injury or damage to other property, does not apply to claims asserted by a condominium association or similar condominium organization seeking compensation for damage to common areas of a condominium building caused by defective construction.

This case arises out of a dispute between the Market Gallery Condominium Trust, the trustees responsible for management of a condo building, and Ayer Properties, the developer and builder of the condo building, after the trustees observed that Ayer had negligently constructed the window frames, the exterior brick masonry, and the roof of the building. The trustees commenced an action alleging that the negligent construction caused damage to both the common areas and the residential units in the building.

KNL Construction, Inc. v. Killian Construction Co., Inc., 2014 U.S. Dist. LEXIS 58269 (M.D. Pa. Apr. 28, 2014)

This action arose out of the construction of the Mohegan Sun Hotel in Luzerene County, Pennsylvania.  General contractor Killian Construction Co., Inc. (“Killian”) retained KNL Construction, Inc. (“KNL”) as a subcontractor to perform certain work on the project.  The parties executed a subcontract which contained a forum selection clause mandating that disputes thereunder be litigated in Greene County Missouri, or if federal jurisdiction is applicable, in the District Court for the Western District of Missouri.
A dispute arose over KNL’s performance under the subcontract, eventually leading to its termination.  In response, KNL brought suit in Pennsylvania state court for breach of contract and related claims premised on payments allegedly owed by Killian, including a claim under Pennsylvania’s Contractor and Subcontractor Payment Act (“CASPA”).  Killian removed the case to the Middle District of Pennsylvania on diversity grounds and filed a motion to dismiss for improper venue, or, in the alternative, transfer for forum non conveniens.  In support of its motion, Killian argued that the clear language of the forum selection clause designates Missouri as the exclusive venue for litigation.

Oakland-Macomb Interceptor Drain Drainage Dist. v. Ric-Man Constr., Inc.,
2014 Mich. App. LEXIS 204 (Mich. Ct. App. Jan. 30, 2014)

The Michigan Court of Appeals, applying the Federal Arbitration Act, 9 U.S.C. § 1, et seq., ruled that while a court generally will not entertain a suit to address pre-award objections to the impartiality or expertise of an arbitrator, pre-award relief is available where a third-party arbitration administrator appoints an arbitrator who fails to meet specific qualifications spelled out in the parties’ arbitration agreement.

The case involved a multi-million dollar dispute between a public sector drainage district and a construction company (the “parties”) arising out of a construction contract. The parties, by amendment to the construction contract added a detailed arbitration agreement. The new arbitration agreement submitted the parties’ dispute to the American Arbitration Association (AAA). The provision outlined arbitrator selection criteria to be followed by the AAA in the event that it had to appoint one of the three arbitrators contemplated by the arbitration agreement. Among other things, the agreement required that the attorney member of the panel be a member of the AAA’s Large Complex Construction Dispute panel with at least 20 years of experience in construction law with an emphasis in heavy construction.

United States of America ex rel Duncan Pipeline, Inc. v. Walbridge Aldinger Co.
2013 U.S. Dist. LEXIS 45982 ( S.D. Ga. Mar. 29, 2011)

This action arose out of a subcontractor’s claim for additional compensation for extra work. Walbridge Aldinger Co. (“Walbridge”), general contractor for the U.S. Army Corps of Engineers on construction project at Fort Stewart in Georgia (the “Project”), entered into a subcontract with Duncan Pipeline, Inc. (“Duncan”). Pursuant to the subcontract, Duncan was to supply labor and material for the Project’s water distribution system. Duncan began its work in August 2009, and shortly thereafter, Walbridge ordered work that Duncan considered to be outside the scope of the subcontract, including installation of bell restraints, additional excavation work, and remobilization of crews because of interferences encountered during excavation. Duncan performed the allegedly extra work in August and September 2009, and submitted a bond claim to Walbridge and its surety in May 2010.

LeBlanc v. Logan Hilton J.V.
463 Mass. 316 (2012)

The Massachusetts Supreme Court ruled where there is evidence that design professionals had actual knowledge of deficiencies in the installation of electrical switchgear but failed to fulfill their contractual duties to report the deficiencies to the property owner, the evidence of is sufficient to support a finding of professional negligence without an expert opinion.

Larry Snyder & Co. v. Miller
648 F.3d 1156 (10th Cir. 2011)

The Tenth Circuit held a repair warranty in a subcontract (the “repair clause”) limited the subcontractor’s repair obligations for failed paving work notwithstanding the flow-through of the prime contract’s “full satisfaction” clause.