July 2015

USA Walnut Creek, DST v. Terracon Consultants, Inc. f/k/a HBC Engineering, Inc., 2015 Tex. App. LEXIS 1806 (Tex. App. 2015)

This cases arises out of the construction of a twelve building apartment complex in Austin Texas.  The builders, Creekstone Walnut, LP and Creekstone Builders, Inc., contracted with defendant Terracon for geotechnical engineering and inspection services.  As part of the services, Terracon performed test borings and provided the geotechnical recommendations for, among other things, the foundation design.  Terracon’s inspection services included providing testing and inspection of the construction materials, including compaction testing on the earthwork.Continue Reading Texas Court of Appeals Holds that Economic Loss Doctrine Does Not Bar Building Owner’s Negligence Claims Against Geotechnical Engineer

Montano Elec. Contractor v. United States, 2015 U.S. App. LEXIS 5928 (Fed. Cir. Apr. 13, 2015)

The Army Corps of Engineers (“the Corps”) hired a general contractor, who subcontracted certain electrical work to Montano (“Subcontractor”).  When Subcontractor was not paid for its work, Subcontractor sought assistance from the Corps’ contracting officer, who explained that he was unable to assist because Subcontractor did not have a contract with the government and the government was thus not a party to Subcontractor’s dispute; however, Subcontractor should pursue any claims it had against the general contractor in federal district court under the Miller Act.Continue Reading Federal Circuit Court Affirms that Federal Claims Court Lacks Jurisdiction Over Claims By Subcontractor

G.T. Leach Builders, LLC v. Sapphire V.P., 2015 Tex. LEXIS 273 (Tex. Mar. 20, 2015)

This action arose after 2008’s Hurricane Dolly caused extensive damage to a luxury condominium project that Sapphire V.P., L.P. (“Developer”) was in the process of developing on South Padre Island (the “Project”).  In 2009, the Developer sued insurance brokers for negligence and breach of contract, alleging that they let the builder’s risk insurance policy expire eight days before the storm struck and be replaced by a permanent policy even though construction of the Project was not yet complete.  The Developer sought to recover millions of dollars for water damage and other increased building costs it alleged that the builder’s risk policy covered or should have covered but the permanent policy did not.Continue Reading Texas Supreme Court Holds Builder’s Limited Defensive Participation in Litigation Did Not Waive Right to Compel Developer to Arbitrate

Fed. Ins. Co. v. Fredericks, Inc., 2015-Ohio-694, 29 N.E.3d 313, 2015 Ohio App. LEXIS 684 (Ohio Ct. App. Feb. 27, 2015)

This case arises from a construction project in Vandalia, Ohio that was damaged during a windstorm before construction was completed.  The project was for the construction of a “cross-dock facility” warehouse (the “Project”) on certain real property owned by Pasco Enterprises (“Pasco”), a company in the business of owning and leasing real estate holdings.  Pasco’s 100% parent, J.P. Holding Co., Inc. (“JP Holding”) also owned Carter Express, Inc. (“Express”) and Carter Logistics, LLC (“Logistics”).  Logistics was in the business of providing freight transportation services to its customers; it also contracted with freight carriers, including Express, to transport its customers’ freight.  Approximately 85% of Logistics’ freight shipments were transported by Express.Continue Reading Ohio Court of Appeals Holds that Economic Loss Rule Bars Claim by Affiliates of Owner Against Subcontractor