Utah Federal Court Dismisses Claim for Attorney Fees Finding That Neither the Indemnification Provision nor the Failure-To-Perform Provision Applies to a Lawsuit Between Contractor and Subcontractor

R&O Constr. Co. v. MBA Gen. Contracting, LLC, No. 1:18-cv-00042, 2019 BL 98680 (D. Utah Mar. 21, 2019)
cuozzom_thumb
Michelle J. Cuozzo

On March 21, 2019, a Utah federal court granted Defendants MBA General Contracting, LLC and Cory Martin’s motion to dismiss R&O Construction Company’s claim for attorney fees.

R&O, as general contractor of a construction project, entered into two subcontracts with MBA to perform concrete work.  The first subcontract, entitled Master Subcontract Agreement, outlined general obligations between the parties.  The second, entitled Work Authorization Document, outlined more specific obligations.  R&O asserted various causes of action against MBA arising from MBA’s alleged breach of the subcontracts, including a claim for attorney fees.  MBA moved to dismiss the attorney fees claim, arguing that neither subcontract provides for such an award.

Continue reading “Utah Federal Court Dismisses Claim for Attorney Fees Finding That Neither the Indemnification Provision nor the Failure-To-Perform Provision Applies to a Lawsuit Between Contractor and Subcontractor”

No Negligence? No Causation? No Problem. Arizona Appellate Court Holds General Contractor Need Not Prove Subcontractor’s Negligence or Causation To Be Indemnified

Amberwood Dev., Inc. v. Swann’s Grading, Inc., No. 1 CA-CV 15-0786, 2017 Ariz. App. Unpub. LEXIS 207 (Ct. App. Feb. 23, 2017)

This case arose out of a housing development project, with Amberwood Development Inc. (“Amberwood”) acting as the general contractor and Swann’s Grading, Inc. (“SGI”), as a subcontractor. In their subcontract agreement, SGI agreed to defend, indemnify and hold harmless Amberwood from claims and “liability of every kind whatsoever arising out of or in connection with [SGI’s] work.”  This indemnity extended to any claims asserted by any subsequent owner alleging improper or defective workmanship.

After construction concluded, eighteen homeowners sued Amberwood, alleging numerous construction defects. Amberwood then sought indemnification from its subcontractors, including SGI. Ten of the eighteen homeowners arbitrated their claims to award and the remaining eight settled with Amberwood.  Amberwood then settled with all of its subcontractors except SGI. Continue reading “No Negligence? No Causation? No Problem. Arizona Appellate Court Holds General Contractor Need Not Prove Subcontractor’s Negligence or Causation To Be Indemnified”

U.S. District Court In Kansas (Applying Texas Law) Holds That Indemnity Clause Which Failed to Call Out Indemnitee’s Negligence Did Not Afford Indemnity for Attorneys’ Fees Even Where Indemnitee Sued for Negligence Was Found Not Negligent

Martin K. Eby Constr. Co., Inc. v. OneBeacon Ins. Co.,  
2012 U.S. Dist. LEXIS 131875 (D. Kan. Sept. 17, 2012)

Eby was the contractor for a project to build a water pipeline in Texas. KBR was the construction manager on the project. In the Indemnity Provision of the water pipeline project contract:

Eby agree[d] to indemnify and hold harmless KBR from and against any damages, claims, demands, suits, and judgment costs including attorney’s fees and expenses for or on account of damage to property directly or indirectly arising from or caused in connection with the work by Eby.”

Continue reading “U.S. District Court In Kansas (Applying Texas Law) Holds That Indemnity Clause Which Failed to Call Out Indemnitee’s Negligence Did Not Afford Indemnity for Attorneys’ Fees Even Where Indemnitee Sued for Negligence Was Found Not Negligent”