Michelle J. Cuozzo

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Gainesville Mech., Inc. v. Air Data, Inc., No. A19A0518., 2019 BL 229069 (Ga. Ct. App. June 19, 2019)

The First Division of the Georgia Court of Appeals affirmed a superior court’s decision to confirm an arbitration award against Appellant Gainesville Mechanical, Inc. (“Gainesville”) because Gainesville failed to show that the arbitrator manifestly disregarded the law governing the “modified total cost” approach to damages.Continue Reading Georgia Court of Appeals Affirms Superior Court’s Confirmation of Arbitration Award, Finding That Arbitrator Did Not Manifestly Disregard Law Governing the “Modified Total Cost” Approach to Damages

R&O Constr. Co. v. MBA Gen. Contracting, LLC, No. 1:18-cv-00042, 2019 BL 98680 (D. Utah Mar. 21, 2019)

On March 21, 2019, a Utah federal court granted Defendants MBA General Contracting, LLC and Cory Martin’s motion to dismiss R&O Construction Company’s claim for attorney fees.
R&O, as general contractor of a construction project, entered into two subcontracts with MBA to perform concrete work.  The first subcontract, entitled Master Subcontract Agreement, outlined general obligations between the parties.  The second, entitled Work Authorization Document, outlined more specific obligations.  R&O asserted various causes of action against MBA arising from MBA’s alleged breach of the subcontracts, including a claim for attorney fees.  MBA moved to dismiss the attorney fees claim, arguing that neither subcontract provides for such an award.Continue Reading Utah Federal Court Dismisses Claim for Attorney Fees Finding That Neither the Indemnification Provision nor the Failure-To-Perform Provision Applies to a Lawsuit Between Contractor and Subcontractor

Ferrara v. Peaches Café LLC, 2018 NY Lexis 3244 (November 20, 2018)

COR Ridge Road Company, LLC (“COR”), as landlord, entered into a 10 year lease with Peaches Café, LLC (“Peaches”).  The lease imposed certain construction requirements on Peaches for it to operate its restaurant, including adherence to specific electrical specifications. The lease also provided that COR approve of any improvements to the premises, that Peaches submit to COR all design plans for the electrical work, and that any improvements made become part of the realty.  Angelo Ferrara (“Ferrara”) performed some of the electrical work.

After Peaches closed its business, Ferrara filed a mechanics lien against the property for more than $50,000 Peaches owed him, noticing both Peaches and COR. Ferrara subsequently sought to foreclose on the lien.  Both Ferrara and COR moved for summary judgment in the foreclosure action, and the trial court granted COR’s motion and dismissed the complaint against it. The Appellate Division granted Ferrara’s motion for summary judgment, upholding the validity of the lien on COR’s property. COR appealed to the Court of Appeals, which affirmed.
Continue Reading New York Court of Appeals Holds That Direct Consent by Landlord Is Not Necessary for Contractor to Enforce a Lien Against the Property for Work Performed for a Tenant

Alkemade v. Quanta Indem. Co., 2017 U.S. App. LEXIS 6896 (9th Cir. Apr. 20, 2017)

 In 1994, Adrianus and Rachelle Alkemade (the “Alkemades”) bought a house from Meltebeke Built Paradise Homes (“Meltebeke”). The home was built on expanding soils, causing significant structural damage.  Meltebeke repaired the existing damage and hired an engineering firm to install a helical pier foundation, which would have prevented any further damage to the home.  However, the helical pier foundation was also installed negligently, afflicting the home with the same type of structural damage as before.

Alkemades sued Meltebeke for negligent supervision of the helical piers installation. Meltebeke entered a settlement agreement with Alkemades in which Meltebeke assigned to Alkemades the right to sue its insurers, Quanta and GFIC, who refused to defend Meltebeke on grounds that its knowledge of the damage caused by the original, defective construction prevented coverage under a known damages provision in Meltebeke’s policies (the “Policies”).  Alkemades subsequently sued the issuers for breach of contract in the U.S. District Court for the District of Oregon for their failure to defend and indemnify Meltebeke.  The insurers moved for summary judgment.

The Policies excluded coverage for damage known by the insured, in whole or in part, that occurred before the policy period began. If such damage was known to the insured, then any “any continuation, change or resumption” of that damage was also deemed known, and excluded.Continue Reading Ninth Circuit Holds That Despite ‘Known Damage’ Exclusion Insurer Had Duty Under Oregon Law to Indemnify and Defend Contractor When Property Damage Resulted From Contractor’s Negligent Repair of a Prior Negligent Act