Construction Dispute

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City of Ferndale v. Florence Cement Co
2006 Mich. App. LEXIS 129, No. 254572 (January 17, 2006)
In City of Ferndale v. Florence Cement Co. and Hartford Casualty Insurance Co., 2006 Mich. App. LEXIS 129, No. 254572 (January 17, 2006), the Court held that the engineer’s decision under the disputes resolution provision of the contract did not constitute a final and binding arbitration award.

Appeal of M.A. Mortenson Company
No. 53761, 2006 ASBCA LEXIS 4 (ASBCA Jan. 26, 2006)
Appeal of M.A. Mortenson Company, No. 53761, 2006 ASBCA LEXIS 4 (ASBCA Jan. 26, 2006) held that the Severin doctrine did not prevent the prime contractor’s claims on behalf of its subcontractor where (1) there was contemporaneous evidence that the subcontractor expressed an intention to seek compensation in addition to amounts afforded via change order and (2) the prime contractor did not contend that such a claim was barred by the language of the change order.

Webber v. McBride & Sons Contracting Co.
No. ED86076, 2005 Mo. App. LEXIS 1846 (Mo. Ct. App. Dec. 13, 2005)
A painter suffered personal injuries after falling through a stairwell hole in the floor of an unfinished single-family residence. The stairwell hole had been cut by predecessor subcontractors no longer on the site. At the time of the fall, the general contractor, which also owned the residence, had already accepted the work of the subcontractors as completed.

Richard F. Kline, Inc. v. Shook Excavating & Hauling, Inc.
165 Md. App. 262, 885 A.2d 381, 2005 Md. App. LEXIS 273 (Maryland Ct Spec. App., October 31, 2005)
Richard F. Kline, Inc. (“Kline”) contracted with the City of Frederick, Maryland (the “City”) for the construction of a flood control project. Kline subcontracted with Shook Excavating & Hauling, Inc. (“Shook”) to perform a portion of the excavation work. The subcontract did not contemplate Shook’s removal of any contaminated soils. When such soils were discovered, the City and project engineer directed Kline to begin remediation. Kline in turn requested that Shook perform this work, and Shook did so. Eventually, the Maryland Department of the Environment determined that the soils were not in fact contaminated. Disagreeing with this determination, however, Kline and Shook continued to remediate the soil before using it as backfill.

Environmental Energy Partners Inc. v. Siemens Building Technologies,Inc., et al.
Nos. 26521 & 26702, 2005 Mo. App. LEXIS 1568 (Mo. Ct. App., Oct. 25, 2005)
In Environmental Energy Partners Inc. v. Siemens Building Technologies, Inc., et al., Nos. 26521 & 26702, 2005 Mo. App. LEXIS 1568, a payment dispute arose between a contractor and its subcontractor on a hospital renovation project. When the contractor refused to pay the subcontractor the remaining subcontract balance ($201,178.75) on the basis that the subcontractor’s work was not completed, the subcontractor filed a mechanic’s lien against the property. The subcontractor then filed a petition to enforce its lien, naming the contractor and owner as defendants. Because of the subcontractor’s lien, the owner withheld the last installment payment of $148,475 due to the contractor under their agreement. Thereafter, and unbeknownst to the contractor, the subcontractor and the owner entered into a confidential “Settlement Agreement and Release” under which the owner agreed to pay directly to the subcontractor the $148,475 amount that it was withholding from the general contractor in exchange for a release of the lien upon entry of judgment in the litigation.

American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc. and Fidelity and Deposit Company of
2005 PA Super 390; 2005 Pa. Super. LEXIS 4086 (Pa. Super. Ct. 2005)
In American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc. and Fidelity and Deposit Company of Maryland, 2005 Pa. Super. 390, (Pa. Super. Ct. 2005), the Court held that the terms of the parties’ subcontract concerning time for payment took precedence over the those set forth in the Commonwealth Procurement Code, 62 Pa.C.S. § 3933.

Bernotas v. Super Fresh Food Markets, Inc.
863 A.2d 478, 2004 Pa. LEXIS 3238 (Dec. 22, 2004)
Barbara Bernotas sustained serious injuries when she fell into a hole at a construction area inside a Super Fresh store. Bernotas sued Super Fresh for her injuries. Super Fresh filed cross-claims against the general contractor, and its electrical subcontractor, seeking indemnity for any damages under those parties’ contracts. Bernotas settled for $200,000, with each defendant contributing 1/3 of the amount. The trial court then held a bench trial in which Super Fresh sought indemnity from the general contractor pursuant to the prime contract, and the general contractor in turn sought indemnity from its electrical subcontractor pursuant to their subcontract. The Supreme Court’s opinion addresses only the scope of the subcontractor’s indemnity obligations to the general contractor.

Bilt-Rite Contractors, Inc. v. The Architectural Studio
2005 Pa. LEXIS 99 (Pa. January 19, 2005)
The East Penn School District entered into a contract with The Architectural Studio (“TAS”), pursuant to which TAS agreed to prepare plans, drawings and specifications (collectively, “Design Documents”) for the construction of a new school. The Design Documents were submitted to contractors for the purpose of preparing bids to perform the general construction of the school. Bilt-Rite submitted a bid for the general construction work, and was awarded the contract as the lowest responsive, responsible bidder. The contract between Bilt-Rite and the School District specifically referred to and incorporated by reference, TAS’s Design Documents.

Carll v. Terminex Int’l. Co., L.P.
2002 PA Super 44; 793 A.2d 921; 2002 Pa. Super. LEXIS 183 (2002)
The Carlls (“Plaintiffs”) instituted an action against Terminex International Company (“Terminex”) and other entities (collectively the “Defendants”), claiming that they sustained severe and permanent injuries as a result of Terminix’s negligent application of pesticides in and around their home. The Defendants responded with a petition to compel arbitration of the matter in accordance with the arbitration provisions of the contract at issue.

Eastern Steel Constructors, Inc. v. The City of Salem
209 W.Va. 392, 549 S.E.2d 266 (2001)
The City of Salem entered into a contract with Kanakanui Associates (“Kanakanui”) pursuant to which Kanakanui agreed to provide engineering and architectural services for improvements to Salem’s existing sewer system. Kanakanui prepared the plans and specifications for the Project. Relying on these plans and specifications, Eastern Constructors, Inc. (“Eastern”) submitted a bid to construct one of the sewer lines planned as part of the improvements. Eastern’s bid was accepted, and it was awarded the contract.