Contractor Has No Duty to Indemnify Gas Company for Settlement Paid to Injured Employee Under Florida’s Underground Facility and Safety Act

Peoples Gas Sys. v. Posen Constr., Inc., 2018 U.S. Dist. LEXIS 106427 (M.D. Fla. June 26, 2018)

In 2009 Posen Construction, Inc. (“Posen”), a road construction contractor, entered into a general contractor agreement with the Lee County Board of County Commissioners for a lane expansion and drainage system project in east Fort Myers, Florida (the “Project”).  Peoples Gas System (“PGS”), an owner of natural gas distribution facilities throughout Florida, maintained gas pipelines underneath the Project site, which required caution when Posen worked around it.  To that end, PGS marked the pipeline with flags, paint, and installed testing stations.

However, during the course of the Project, Posen learned that at certain locations construction would be impossible unless PGS removed portions of the pipeline.  Therefore, in October 2010, Posen submitted a request to Sunshine One, a notification system whereby excavators obtain the location of underground utilities before excavation.  In November 2010, a Posen employee, Mark Santos (“Santos”) was directed to excavate at a location that PGS maintained was not properly marked for the location of the gas pipeline.  Santos struck and ruptured the pipeline and was severely injured as a result. Continue reading “Contractor Has No Duty to Indemnify Gas Company for Settlement Paid to Injured Employee Under Florida’s Underground Facility and Safety Act”

Kentucky Court of Appeals Draws a Distinction Between Substantive and Procedural Questions of Arbitrability, and Explains the Proper Role for the Courts

Ambac Assur. Corp v. Knox Hills LLC, 2018 Ky. App. Lexis 188 (June 15, 2018)

This case involves a February 1, 2007 design/build agreement governing the rights of the several parties involved with a military housing construction and renovation project at Fort Knox, Kentucky.  Knox Hills, LLC (the owner) filed a breach of contract action against Ambac Assurance Corporation (the senior lender of the project) relating to what it characterized as Ambac’s wrongful withholding of consent to a change order that would have substantially reduced the scope of the project.  Knox Hills then sought an order staying the proceedings and compelling Ambac to arbitrate.  The circuit court granted the motion and, following an arbitration, entered an order confirming the arbitrator’s award in favor of Knox Hills.  Ambac then appealed the court’s order.

On appeal, the Kentucky Court of Appeals focused on two questions:  (1) whether the court or the arbitrator should have determined whether arbitration was required between Knox Hills and Ambac, and (2) whether arbitration was actually required. Continue reading “Kentucky Court of Appeals Draws a Distinction Between Substantive and Procedural Questions of Arbitrability, and Explains the Proper Role for the Courts”

A Contractor That Intentionally and Materially Breaches Its Contract Is Not Precluded From Recovery Under Quantum Meruit; Massachusetts Supreme Court Overrules Century-Old Precedent Strictly Barring Such Relief

G4S Tech. LLC v. Mass. Tech. Park Corp., 2018 Mass. Lexis 357 (June 13, 2018)

A state development agency (the “Agency”), received state and federal funding to build a 1,200-mile fiber optic network.  It contracted with G4S Technology LLC (“G4S”) for the project under a $45.5 million design-build agreement.  As a result of project delays – the cause of which the parties disputed – G4S achieved final completion of the work more than one year after the contractual deadline.  Shortly after completion, the Agency issued a notice of withholding, claiming a right to withhold $4 million from G4S to compensate the Agency for delays and expenses incurred as a result of G4S’s alleged failures to perform.

G4S sued the Agency in Massachusetts Superior Court, asserting claims for breach of contract and quantum meruit.  It sought release of the contract balance plus an equitable adjustment of the contract price and deadlines.  In discovery, the Agency learned that G4S had repeatedly submitted inaccurate progress payment applications during the project, which falsely represented that G4S had timely paid its subcontractors.  The Agency cited this evidence in support of a motion for summary judgment, arguing that G4S’s conduct barred its right to recover money owed to it under the contract and under a theory of quantum meruit.  The Superior Court granted the motion, and G4S appealed. Continue reading “A Contractor That Intentionally and Materially Breaches Its Contract Is Not Precluded From Recovery Under Quantum Meruit; Massachusetts Supreme Court Overrules Century-Old Precedent Strictly Barring Such Relief”