Tag Archives: Contracts

Gavel

Waive Your Claim Goodbye: Louisiana Court Holds That AIA Subrogation Waiver Did Not Violate Anti-Indemnification Statute and Applied to Subcontractors


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In 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract.

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Time

Tick Tock: Don’t Let the Statute of Repose or Limitations Time Periods Run on Your Construction Claims


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In Wascher v. ABC Ins. Co., No. 2020AP1961, 2022 Wisc. App. LEXIS 110 (Feb. 9, 2022), the Court of Appeals of Wisconsin considered whether the plaintiffs were barred — by Wisconsin’s 10-year statute of repose for improvements to real property claims and the six-year statute of limitations for breach of contract claims — from bringing a lawsuit against the original builders of their home. The plaintiffs alleged negligence and breach of contract against the masonry subcontractors, asserting that they improperly installed the exterior stone cladding. The court found that the plaintiffs’ claims against the original builders were time-barred. Continue reading

This entry was posted in Construction Defects, Contracts, Statute of Limitations-Repose, Wisconsin and tagged , , , , , , .
Gavel

What’s the Gist? Massachusetts Court Looks Past the Labels to the Gist of the Plaintiff’s Allegations to Find Claims Barred by the Statute of Repose


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In Lennar Northeast Props. v. Barton Partners Architects Planners, Inc, C.A. No. 16-cv-12330-ADB, 2021 U.S. Dist. LEXIS 11800, the United States District Court for the District of Massachusetts considered whether a property owner’s construction defect claims against a contractor were barred by the six-year statute of repose for improvements to real property. Massachusetts’ statute of repose, Mass. Gen. Laws ch. 260, § 2B, bars tort actions against those involved in the design, planning, construction or general administration of an improvement to real property more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession or occupancy by the owner. Finding that, despite the fact that the plaintiff’s actions were labeled as contract, breach of warranty and consumer protection act claims, the complaint alleged actions sounding in tort. Thus, the court applied the statute of repose to these claims. Continue reading

This entry was posted in Construction Defects, Litigation, Massachusetts, Statute of Limitations-Repose, Subrogation and tagged , , , , , .

California Limits Indemnification Obligations of Design Professionals


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The California legislature recently enacted legislation – SB 496 – limiting a design professional’s indemnification obligations in private contracts related to design services. The term “design professional” refers to licensed architects, landscape architects and professional land surveyors, and registered professional engineers. As revised, Cal. Civ. Code § 2782.8 states that, for all contracts entered into on or after January 1, 2018 for design professional services, all provisions that purport to have the design professional indemnify the indemnitee for claims against the indemnitee – or require the design professional to provide a defense to the indemnitee – are unenforceable except to the extent that the claims against the indemnitee arise out of, or relate to, the negligence, recklessness or willful misconduct of the design professional. In addition, as revised, § 2782.8 limits a design professional’s liability for the cost of defense to the design professional’s percentage of fault.

The revised statute provides two exceptions. Pursuant to these exceptions, the limitations related to the duty and cost to defend do not apply to: 1) design service contracts where a project-specific general liability policy insures all project participants, including the design professional, and 2) a design professional who is a party to a written design-build, joint venture agreement.

Although this change in the law does not go into effect until January 1, 2018, the change serves as a reminder to subrogation professionals that, when faced with indemnification provisions in design or construction-related contracts, they should check local laws to determine the extent to which subrogating insurers can enforce such provisions.

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