Published by Tara Mulrooney on June 11, 2013
A recent court decision in California has significant implications for design and construction professionals nationwide. In the case, Brisbane Lodging, L.P. v. Webcor Builders, Inc, a CA appellate court unanimously upheld a 1997 American Institute of Architects (AIA) standard construction contract provision for the first time in the state. The provision—which has previously been upheld as valid and enforceable in numerous other states, including New York—provides that a construction project's substantial completion date—a defined project milestone—is a trigger date at which point the clock starts ticking on all future claims and actions subject then to their appropriate statutes of limitations.
The California decision is important because it reinforces other states’ rulings that the AIA's standard provision is enforceable to alter the governing law—in this case California state law—when claims arise, including with respect to latent claims. Further, it allows parties to mutually agree to limit the period of uncertainty with respect to how long they can be exposed to claims by agreeing to an accrual date, and finally, as the CA court noted, the decision highlights the longstanding policy to respect and promote the freedom of sophisticated parties engaging in commercial construction projects to structure risk shifting by contract.
The case involved claims for breach of contract, negligence and breach of warranties relating to the design and construction of an eight-story hotel. Some 4 years after substantial completion of the hotel, Brisbane, the project owner, first identified a latent problem with the plumbing system. Approximately 4 years after identifying the issue—almost eight years after the undisputed substantial completion date—they commenced the related action. The defendant, Webcor, contended that the action was barred by the AIA provision (AIA Standard Form of Agreement Between Owner and Contractor and A201 General Conditions). Brisbane argued that the contract provision should not be enforced and California law should govern. Due to the latent nature of the plumbing issue, under California law the statute of limitations would not have started to run until the plaintiff either actually discovered the injury, or could have discovered the injury through the exercise of reasonable care. The Court of Appeals sided with Webcor and affirmed a trial court's decision to uphold the contract provision and dismiss Brisbane's lawsuit as untimely.
Keep posted for any further news on this case.
Published by Melissa T. Billig on June 10, 2013
What to Expect When You're Renovating
When: June 12, 2013 6:00pm - 8:00pm
Where: Center for Architecture, 536 LaGuardia Place, New York City
Contemplating a renovation project and not sure about the process? Whether you are planning a kitchen renovation or a gut renovation, your project will go more smoothly if you become familiar with the process and what to anticipate before, during and after your project.
Hosted by the Center for Architecture Foundation (CFAF) and presented by our Design and Construction Group partner, Melissa Billig, and a licensed architect, this informative 2-hour seminar will provide homeowners with an overview of the process of renovating an apartment in NYC from start to finish, including contract and other legal issues.
Published by Melissa T. Billig on May 24, 2013
There’s nothing like head-to-head competition among refined professionals to get an audience engaged. And that’s exactly what happened on Tuesday, May 21st at the Center for Architecture Foundation’s (CFAF) 2nd annual drawing competition and benefit – Guess-a-Sketch.
The event was a Pictionary-style tournament in which design industry superstars starred as Honoree Sketchers, drawing pictures of architectural landmarks while competing teams tried to identify the structures first. Talk about pressure.
Morris Adjmi, AIA, Guy Geier, FAIA, Wendy Evans Joseph, FAIA and Christopher Sharples, AIA were the Honoree Sketchers and esteemed architect, Charles Renfro, was the Masters of Ceremony. The sold-out event and silent auction—in which the Honorees' charcoal sketches were auctioned off—raised significant funds in support of design and built environment education in New York City. Melissa Billig, an Ingram Design and Construction Group partner, co-chaired the event.
Confirming the originality and appeal of “Guess-a-Sketch,” the Wall Street Journal reported on the event, recognizing its success in bringing out the “true competitive nature of New York City’s erector set” for the good of the Foundation (CFAF).
TRY IT YOURSELF.
Photo by: Rebecca Woodman Taylor
Even now, more than six months post-Hurricane Sandy, the storm’s impact continues to plague property owners, residents and the design/construction industry at large. One example, the crane collapse at One57—a luxury hotel and condominium currently under construction at 157 West 57th Street—provides an instructive snapshot of all parties’ “nightmare scenario.”
While the crane dangled precariously in the wake of Sandy’s violent winds, a mandatory evacuation sent hundreds of area residents and businesses packing for nearly a week. And just last week, residents of 72 apartments at adjacent Alwyn Court, as well as residents of two other nearby buildings, faced a second mandatory evacuation. The Department of Buildings (DOB) had approved a plan submitted by One57 developer Extell Development to raise a replacement crane and has ordered a one-day emergency evacuation.
Attorneys for the Alwyn Court Co-op quickly announced plans to seek an injunction blocking the evacuation and installation of the new crane. They argue that the DOB lacks the authority to order an evacuation on behalf of Extell since there is no emergency.
Despite the threat of injunctive relief, the Alwyn Co-op board and Extell continue negotiations in the hopes of an amicable resolution for the completion of the project. Ultimately, the crane was replaced and the evacuated families were paid $1500 each from the project’s developers to cover their relocation expenses.
Unfortunately this story—while dramatic—is not at all uncommon in metropolitan areas, where tight quarters and close proximity to neighbors raise unique and serious issues during the construction process. Each stakeholder, from owners to developers to neighbors, has unique rights and responsibilities. Understanding them is the best way to mitigate risk and manage exposure.
Recently, Ingram partner Robert Banner addressed these exact issues in The New York Times article Coping with a Neighbor’s Renovations, as well as on Curbed.com in How to Live Next to a Construction Site and Remain Sane. Check out these articles for a more thorough look of the legal issues involved.
Welcome to Ingram’s Design & Construction blog, If You Build It: News for Design & Construction Professionals.
Our aim with If You Build It is to provide timely posts on relevant design & construction news and legal insights. Given our immersion, experience and roles in the design & construction worlds, we have first-hand access to pertinent news and an understanding of its broader implications. Like you, we live this world and are impacted by news, decisions and events.
Our goal is to share our information and insights … briefly. Knowledge is power but time is precious, and our blog is the optimal forum to communicate relevant news out.
If You Build It is a product of the Ingram Yuzek Design & Construction Practice.
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Read more