breach of contract

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Federal Insurance Co. v. Philotimo, Inc.
2009 U.S. Dist. Lexis 108105 (W.D.P.A. Nov. 19, 2009)

Homeowner hired defendant to inspect and clean its fireplace and chimney after observing chunks of mortar falling into the fireplace. Homeowner showed defendant’s technicians the fallen mortar. The technicians cleaned and visually inspected the chimney and reported to homeowner that it “looked good.” Thereafter, an extensive fire swept through the house causing over $400,000 in damage.
Following the fire, homeowner’s insurer commissioned an inspection which revealed numerous signs of damage and disrepair to the chimney that suggested defendant’s technicians should have instructed homeowner not to use fireplace and chimney until repairs were made.

Steadfast Insurance Co v. Brodie Contractors, Inc.
2008 U.S. Dist. LEXIS 88448 (October 31, 2008 W.D. Va.)
Steadfast Insurance Co., as subrogee of Skanska USA Building Co., the general contractor, alleged claims for breach of contract and breach of warranty against Brodie Contractors, Inc., a masonry subcontractor, concerning replacement of brick veneer on the Danville Regional Medical Center. Brodie moved for summary judgment alleging that the lawsuit was barred by Virginia’s statute of limitations.

City of Gillette v. Hladky Construction, Inc.
2008 Wyo. LEXIS 139 (November 14, 2008)
The Supreme Court of Wyoming upheld an award to a Contractor of more than one million dollars against an Owner for a breach of an implied covenant of good faith and fair dealing even though the Owner did not breach the contract’s express terms.
The City of Gillette (“City”) hired Hladky Construction, Inc. (“HCI”) for the remodel and expansion of City Hall. The project specifications called for the installation of precast concrete exterior panels that matched those on the existing structure. Further, there was a requirement that the plant at which the precast panels were to be manufactured be certified under the Precast/Prestressed Concrete Institute Plant Certificate Program prior to the start of their production. HCI submitted a bid that unknown to it named an precast manufacturer which had not yet received the required certification. Both the City hired architect and structural engineer were aware prior to bid acceptance that HCI’s precast manufacturer was in the process of obtaining certification, but was not yet certified. Despite knowing that HCI’s manufacturer was not certified and a contract provision requiring the architect to notify bidders of any bid objections, no City representative objected or informed HCI about its uncertified precast manufacturer.

Lanier at McEver, L.P. v. Planners and Engineers Collaborative, Inc.
2008 Ga. LEXIS 553 (Ga. June 30, 2008)
In this case, the Supreme Court of Georgia reversed a Court of Appeals’ decision, previously reported here, holding that a provision limiting an owner/developer’s damages against the project engineer to the fees paid for the engineer’s services was void and unenforceable as against public policy.
Lanier was the owner/developer of an apartment complex. Lanier hired the defendant engineering firm, PEC, to design various aspects of the apartment complex, including the storm sewer and sanitary drainage system. The engineering agreement contained a provision stating that the total aggregate liability of PEC and its subconsultants to Lanier “for any and all claims … shall not exceed PEC’s total fee for services rendered on this Project.” The clause applied not only to liability to Lanier, but also to “all construction contractors and subcontractors on the project or any third parties.” Following construction of the Project according to the plans and specifications prepared by PEC, problems arose with the storm water system that required modification and repair by the owner. As a result, Lanier sued PEC for negligent design, breach of express contractual warranty and litigation expenses.

Bryan’s Quality Plus, LLC v. Shaffer Builders, Inc.
2008 U.S. Dist. LEXIS 61713 (E.D. Pa. Aug. 12, 2008)
The District Court for the Eastern District of Pennsylvania was faced with a motion to dismiss a defendant’s counterclaims for fraud and negligent misrepresentation. The case arose out of a subcontract between the defendant contractor and the plaintiff subcontractor in which the subcontractor agreed to complete piling work for a commercial project undertaken by defendant (the “Project”). The contractor alleged in its counterclaim that the subcontractor represented that it would complete the work in seven days, that it could install in excess of fifty piles a day, that its performance and equipment would surpass conventional methods, that it would furnish and install pile tension brackets and fasteners, and that it had sufficient credit to purchase the materials necessary to complete the work. The parties executed a written contract, although some of the work was completed prior to execution of the subcontract.

Waynesborough Country Club of Chester County v. Diedrich Niles Bolton Architects, Inc.
2008 U.S. Dist. LEXIS 45980 (E.D. Pa. July 21, 2008)
The case arose out of the design and construction of a new clubhouse for Waynesborough. Diedrich Niles Bolton Architects (“DNB”) provided professional architectural services to Waynesborough for the project and Ehret Construction served as the project’s general contractor and construction manager. Structural problems arose after the clubhouse was complete, and Waynesborough sued DNB alleging, as a result of DNB’s professional negligence and breach of contract, significant water leaks developed at various places throughout the interior of the clubhouse. DNB joined Ehret as a third party defendant. Ehret, in turn, filed a counterclaim against DNB for negligent misrepresentation, claiming that DNB’s architectural work was deficient and that Ehret’s work was delayed, disrupted and inefficient as a result of having relied upon inaccurate drawings and other architectural documents supplied by DNB during construction.

Chrysler Realty Company, LLC v. Design Forum Architects, Inc.
2008 U.S. Dist. LEXIS 42721, No. 06-CV-11785 (E.D. Mich. May 30, 2008)
The United States District Court for the Eastern District of Michigan was asked to consider whether a plaintiff’s claim for professional liability against a design professional should be dismissed where plaintiffs allowed evidence to be destroyed. Finding that the plaintiff’s intentional removal and destruction of the allegedly defective HVAC system without notice to the defendant deprived the defendant of an opportunity to develop defenses to the claims, the Court dismissed the plaintiff’s claims.

Helena Assocs., LLC v. EFCO Corp.
U.S. Dist. LEXIS 39977 (S.D.N.Y. May 14, 2008)
Owner, The Helena Associates, LLC contracted with EFCO Corporation for the work, materials and installation of aluminum windows in the construction of The Helena, a high-rise residential building in New York City. Helena brought a breach of contract action against EFCO alleging that EFCO had failed to comply with project schedules, caused delay to the project, and failed to provide sufficient manpower and supervision. Helena claimed damages in excess of $6.7 million. EFCO denied Helena’s claims arguing that the delays were caused by factors outside of its control and within the control of parties for whom Helena was responsible, and asserted a counterclaim for additional work of approximately $875 thousand. EFCO moved for partial summary judgment.

Mostellar Mansion, LLC v. Mactec Engineering & Consulting of Georgia, Inc.
2008 N.C. App. LEXIS 1011 (May 20, 2008)
Mostellar Mansion, LLC (Mansion) entered into a contract with Mactec Engineering and Consulting of Georgia, Inc. (Mactec) in connection with Mostellar’s plan to purchase a tract of land for the construction of an apartment complex (the Project Site). Under the contract, Mactec was to assess the subsurface conditions of the Project Site, determine if the Project Site was suitable for the proposed construction and provide recommendations for foundation design and site preparation for the proposed structures. The contract contained the following pertinent provisions:

Sloan Constr. Co. v. Southco Grassing, Inc.
2008 S.C. LEXIS 99 (S.C. Mar. 24, 2008)
The South Carolina Department of Transportation (SCDOT) contracted with general contractor Southco Grassing, Inc. in connection with state highway maintenance project and, in accordance with the applicable statutory bond requirements, Southco provided a payment bond for the benefit of its subcontractors and suppliers in the full contract amount. Subsequently, Southco entered into a subcontract with subcontractor Sloan to perform asphalt paving work. In June 2001, before the paving work was completed, Southco’s payment bond was cancelled when the bond’s issuer became insolvent. Notice of the insolvency and cancellation was provided to SCDOT and SCDOT requested in writing that the Southco provide a replacement bond within seven days. Southco did not reply. In the meantime, Sloan completed its work, but in January 2002 notified SCDOT that it still had not received payment from Southco for its subcontract valued at approximately $52,000 and that the payment bond had never been replaced. In March 2003, despite that it had not made full payment to Sloan, Southco advised SCDOT that it had made all payments on the project, and SCDOT released final retainage to Southco.