Justia Construction Law Opinion Summaries

In 2007, the VA sought to lease space for a Parma, Ohio VA clinic. A pre-solicitation memorandum stated that the building must comply with the Interagency Security Committee (ISC) Security Design Criteria. The subsequent Solicitation discussed the physical security requirements. Premier submitted a proposed design narrative that did not address those requirements. In 2008, Premier and the VA entered into a Lease. Premier was to provide a built-out space as described in the Solicitation. About 18 months later, the VA inquired about Premier’s first design submittal, advising Premier to obtain access to the ISC standards, because “the project needs to be designed according to the ISC.” The ISC denied Premier’s request, stating that the documents had to be requested by a federal contracting officer who has a “need to know.” The VA forwarded copies of three ISC documents. Some confusion ensued as to which standard applied. The VA then instructed Premier to disregard the ISC requirements and to incorporate the requirements from the latest VA Physical Security Guide. Months later, the VA changed position, stating that “[t]he ISC is the design standard.” Premier’s understanding was that only individual spaces listed in a Physical Security Table needed to comply with the ISC. The VA responded that the entire building must conform to the ISC at no additional cost. Premier constructed the building in accordance with the ISC standards then unsuccessfully requested $964,356.40 for additional costs. The Federal Circuit affirmed summary judgment in favor of the government. The contract unambiguously requires a facility conforming to ISC security requirements. View "Premier Office Complex of Parma, LLC v. United States" on Justia Law

During road-construction operations, a truck owned or operated by Eustis Cable Enterprises, LTD, which was participating in the construction activity, struck and killed a flagger for Green Mountain Flaggers. The truck hit the flagger when the driver began backing it up in the southbound breakdown lane on Route 7 in Middlebury, Vermont. In response to the accident, the Commissioner of Labor investigated and ultimately cited Eustis for two alleged violations of 29 C.F.R. 1926.601: a failure to ensure that the vehicle’s backup alarm was audible above the surrounding noise level; and a failure to assure the safety devices were in a safe condition at the beginning of each shift. The Commissioner assessed $11,340 in fines ($5670 for each violation). Eustis appealed the civil division’s affirmance of the Vermont Occupational Safety and Health Act (VOSHA) review board’s determination that Eustis failed to meet VOSHA’s motor-vehicle requirements and the resulting assessment of a fine for the violations. The Vermont Supreme Court concluded the evidence and findings did not support the board’s conclusion that Eustis was on notice of the violation and accordingly reverse and strike the citation alleging a violation of 29 C.F.R. 1926.601(b)(14) and associated penalty. View "Commissioner of Labor v. Eustis Cable Enterprises, LTD" on Justia Law

In 2012, the Campbell Union School District (CUSD) Governing Board enacted a fee on new residential development under Education Code section 17620. The fee, $2.24 per square foot on new residential construction, was based on a study that projected that “it will cost the District an average of $22,039 to house each additional student in new facilities.” This figure was based on a projected $12.8 million cost to build a new 600-student elementary school and a projected $24.4 million cost to build a new 1,000-student middle school. SummerHill owns a 110-unit residential development project in Santa Clara, within CUSD’s boundaries. In 2012 and 2013, SummerHill tendered to CUSD under protest development fees of $499,976.96. The trial court invalidated the fee and ordered a refund of SummerHill’s fees. The court of appeal affirmed, holding that the fee study did not contain the data required to properly calculate a development fee; it failed to quantify the expected amount of new development or the number of new students it would generate, did not identify the type of facilities that would be necessary to accommodate those new students, and failed to assess the costs associated with those facilities. View "SummerHill Winchester LLC v. Campbell Union School District" on Justia Law

The Vermont Agency of Transportation (VTrans) appealed the Transportation Board’s order granting judgment to W.M. Schultz Construction, Inc. in this contract dispute. Schultz entered into a contract with VTrans in December 2013 to replace four bridges destroyed by Tropical Storm Irene. Three bridges were completed without incident. This dispute centered on the fourth bridge, referred to as “Bridge #19.” The Bridge #19 project involved the construction of a single-span steel-girder bridge over the White River in Rochester, Vermont. The west abutment was to be placed on a deep pile foundation and the east abutment (Abutment #2) was to be placed on ledge. The work was to begin in April 2014 and be completed in a single construction season. The Board concluded that Schultz encountered “differing site conditions” in carrying out its bridge-construction project and that it was entitled to an equitable adjustment for costs it incurred as a result. VTrans appealed, arguing the Board misread the contract materials and otherwise erred in granting judgment to Schultz. Finding no reversible error, the Vermont Supreme Court affirmed. View "W.M. Schultz Construction, Inc. v. Vermont Agency of Transportation" on Justia Law

The City of Olympia, Washington contracted with NOVA Contracting, Inc. to replace a deteriorating culvert. The contract contained a "notice of protest" provision, which was taken from the Washington Department of Transportation's "standard Specifications for Road, Bridge, and Municipal Construction (2012) manual. NOVA sued the City for breach of the implied covenant of good faith and fair dealing; the City moved to dismiss based in part on NOVA's filature to file a protest first before taking the City to court. The trial court dismissed NOVA's claim, but the Court of Appeals reversed. The Washington Supreme Court has addressed this written notice issue twice before; the Court of Appeals interpreted those holdings, however, as only applying to claims for cost of work performed and not claims for expectancy and consequential damages. The Supreme Court held the two prior cases applied even to claims of expectancy and consequential damages. Therefore, the Court reversed the appellate court and remanded this case for further proceedings. View "NOVA Contracting, Inc. v. City of Olympia" on Justia Law

AFDI filed suit against WMATA and its then-general manager, alleging that WMATA's refusal to display its advertisements violated its rights to free speech and equal protection under the First and Fourteenth Amendments. The district court granted summary judgment to WMATA.Determining that the case was justiciable, the DC Circuit held that WMATA's advertising space was a nonpublic forum and that its restrictions were viewpoint-neutral. In this case, the court rejected AFDI's as-applied challenge, AFDI's claim that the ban on issue-oriented advertising was facially unconstitutional; and AFDI's claim that Guideline 12 was an unconstitutional prohibition of religious and antireligious views. The court remanded to the district court to determine whether the restrictions were reasonable in light of Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "American Freedom Defense Initiative v. Washington Metropolitan Transit Authority" on Justia Law

This case arose from the tragic 2014 death of nine-year-old Patrauna Hudson, who drowned in flash-flood waters that swept through a drainage ditch that ran alongside her family’s residence. Patrauna’s estate (the “Estate”) filed suit against Yazoo City for wrongful death under the Mississippi Tort Claims Act (MTCA). The circuit court granted summary judgment in favor of Yazoo City (the “City”) on all claims filed against it by the Estate, having found Yazoo City immune from liability under both the discretionary-function exception and the open-and-obvious exception contained in Mississippi Code Section 11-46-9. The Estate appealed, maintaining that Yazoo City violated numerous city ordinances, along with certain federal regulations, when the City converted a portion of the drainage ditch downstream from the Hudson residence into a covered tunnel with two side-by-side culverts in 2007. The Estate argued that these laws imposed a ministerial duty upon Yazoo City, and the City breached that duty by failing to comply with all the mandatory requirements prescribed by these laws when the city implemented and carried out the 2007 project. Therefore, the Estate contended, the City was not immune from liability. The Mississippi Supreme Court found the Estate’s claim that Yazoo City is liable for the wrongful death of Patrauna failed as a matter of law for failure to state a cause of action. The Court also found the Estate abandoned its claim for negligently failing to maintain its drainage ditches. The Estate, however, abandoned this claim under the auspices of the test adopted by this Court in However, the Court found “slight evidence,” which if developed further, could create a genuine issue of fact with regard to this claim, and that the Estate should have been given the opportunity to do so. The Supreme Court found the trial court’s ruling as to the open-and-obvious exception provided by Section 11-46-9(1)(v) was premature in this case because factual questions remained. Accordingly, the Court reversed and remanded for further proceedings. View "Hudson v. Yazoo City, Mississippi" on Justia Law

The court of appeals affirmed a jury verdict for Jacklyn Donevant in her wrongful termination action against the Town of Surfside Beach, finding her cause of action fit within the public policy exception to the at-will employment doctrine. Donevant was fired because she carried out her mandatory responsibility under the law to enforce the provisions of the South Carolina building code. Donevant discovered unpermitted construction work she determined to be in violation of the building code, and she issued a stop work order. She was fired a few days later. The Town appealed, contending the court of appeals misinterpreted the "public policy exception." The South Carolina Supreme Court determined the Town misinterpreted the public policy exception: "Donevant was enforcing the building code and therefore enforcing a clear mandate of public policy when she issued the stop-work order. ... Under the circumstances of this case, firing Donevant for carrying out her mandatory responsibility to enforce the building code violates public policy." View "Donevant v. Town of Surfside Beach" on Justia Law

In 2005, Roark, a Sunesis laborer, was working alone at the bottom of a trench, when the trench collapsed, killing him. The Bureau of Workers’ Compensation awarded Roark’s dependent children benefits. The dependents sought an additional award based on violations of specific safety requirements for sloping, shoring, and bracing. A hearing officer concluded that Roark’s death was the result of Sunesis’s failure to properly support the trench and ordered Sunesis to pay an additional award based on violations of Ohio Adm.Code 4123:1-3-13. On remand, a hearing officer issued factual findings based on photographs and testimony: Three sides of the trench were adequately shored. The fourth wall, which caved in on Roark, consisted of soil that Sunesis attempted to shore up by sloping the wall and inserting a steel plate above the slope. The hearing officer found no evidence that Roark disregarded instructions to work inside a large underground pipe. On rehearing, in 2012, a hearing officer identified the soil involved as soft material, Class C soil with groundwater, stating that Code Table 13-1 addresses the approximate angle of repose for sloping: The presence of groundwater requires special treatment. The commission, the Tenth District, and the Supreme Court of Ohio upheld the award. It was within the commission’s discretion to conclude that the trench was not properly shored or braced, exposing employees to the danger of moving ground and that failure to comply with the regulations proximately caused Roark’s death. View "Sunesis Construction Co. v. Industrial Commission of Ohio" on Justia Law

Plaintiff Ralph Rogerson, a licensed pest-control applicator in Kansas, challenged a regulation of the Kansas Department of Agriculture on the ground that it required excessive pesticide treatment in preconstruction applications. He filed suit for declaratory and injunctive relief against the Secretary of the Department, claiming that the regulation: (1) was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) because it conflicted with pesticide labels approved by the Environmental Protection Agency (EPA); and (2) was preempted by the Sherman Antitrust Act because it limited consumer choice and competition through retail price maintenance. The United States District Court for the District of Kansas rejected both claims, and Plaintiff appealed. The Tenth Circuit affirmed: the Kansas regulation was neither expressly nor impliedly preempted by FIFRA. And Plaintiff conceded the absence of an essential element of his Sherman Act claim. View "Schoenhofer v. McClaskey" on Justia Law