Justia Construction Law Opinion SummariesArticles Posted in U.S. 7th Circuit Court of Appeals
United States v. Volpentesta
Volpentesta owned and operated a construction business and used the company to defraud customers, investors, subcontractors, and the government. Charged with six counts of mail and wire fraud and 17 counts of federal tax violations, Volpentesta was represented by Federal Defender Gaziano. Due to the volume of discovery (about 11,000 pages of Bates-stamped discovery and 40 banker’s boxes of documents seized by the IRS), Gaziano ensured that Volpentesta could review the discovery electronically from the jail. When Volpentesta complained that the computer was too slow, Gaziano obtained an order for periodic transport to review the documents. Volpentesta eventually filed nine motions to substitute counsel, most related to the difficulty in reviewing discovery. The court ultimately allowed him to proceed pro se. Volpentesta was convicted, sentenced to a total of 133 months in prison, and ordered to pay more than one million dollars in restitution. The Seventh Circuit affirmed, rejecting arguments that he was deprived of his Sixth Amendment right to effective assistance of counsel; that his waiver of his right to counsel was not knowingly, voluntarily, and intelligently given; and that the district court erroneously denied his motions to continue the trial once he had decided to represent himself. View "United States v. Volpentesta" on Justia Law
Large v. Mobile Tool Int’l, Inc.
Elliot, which provides construction and maintenance services, owns and leases bucket trucks. In 1996, Elliot entered into a lease with TECO, a manufacturer of such trucks, agreeing agreed to hold TECO harmless from liability arising from injuries resulting from use, operation, or transportation of the vehicle or its location or condition. In 2000, Large was injured while operating a truck, which his employer, Elliot, had leased from TECO. Large sued TECO. TECO’s successor in interest (Mobile) filed a third-party complaint against Elliot, seeking defense and indemnification pursuant to the lease. Mobile later settled with Large without Elliot’s participation, leaving the third-party complaint against Elliot as the only outstanding issue. After a change in Virginia law, Mobile again moved for summary judgment, which the district court granted, holding Elliot responsible to defend and indemnify Mobile. The Seventh Circuit affirmed, rejecting Elliot’s argument that a later invoice superseded the terms of the lease, eliminating Elliot’s duty to defend and indemnify except in the case that Elliot violated obligations under the invoice by failing to either adequately train Large in the use of the truck or to provide him with copies of the truck’s operation and maintenance manuals. View "Large v. Mobile Tool Int'l, Inc." on Justia Law
United States v. Clark
Clark, the owner and president of an East St. Louis Illinois company, was charged with making false statements in violation of 18 U.S.C. 1001(a)(3). Clark’s company had entered into a hauling services subcontract with Gateway, general contractor on a federally funded highway project in St. Louis, Missouri. Employers must pay laborers working on certain federally-funded projects the “prevailing wage,” calculated by the Secretary of Labor based on wages earned by corresponding classes of workers employed on projects of similar character in a given area, and maintain payroll records demonstrating prevailing wage compliance, 40 U.S.C. 3142(b) The indictment charged that Clark submitted false payroll records and a false affidavit to Gateway, representing that his employees were paid $35 per hour, when they actually received $13-$14 per hour. The district court dismissed for improper venue, finding that when a false document is filed under a statute that makes the filing a condition precedent to federal jurisdiction, venue is proper only in the district where the document was filed for final agency action. The Seventh Circuit reversed. Although the effects of the alleged wrongdoing may be felt more strongly in Missouri than in Illinois, the Southern District of Illinois is a proper venue. View "United States v. Clark" on Justia Law
Atl. Cas. Ins. Co. v. Prince Contractors, Inc.
Prince was the general contractor for construction of an apartment building. Rybaltowski was an employee of a waterproofing company. His boss took Rybaltowski to the project site to perform an unpaid demonstration of the proposed caulking of windows. While Rybaltowski was at the site, a beam supporting masonry equipment fell on him. Less than an hour after the accident, Prince signed a subcontract with the waterproofing company. The insurance policy at issue was a Commercial General Liability Insurance policy with an exclusion from coverage for bodily injury to any contractor arising out of or in the course of the rendering or performing services of any kind or nature whatsoever by such contractor. “Contractor” was defined to include employees of subcontractors. The district court entered judgment in favor of the insurer, finding it had no duty to defend. The Seventh Circuit reversed and remanded, reasoning that the policy can be interpreted so that services are not provided until the contractor begins compensated work on the project. View "Atl. Cas. Ins. Co. v. Prince Contractors, Inc." on Justia Law
Sams Hotel Grp., LLC v. Environs, Inc.
SAMS contracted with Environs to provide architectural services for construction of a Homewood Suites hotel in Fort Wayne. Environs was to be paid a flat fee of $70,000. The contract stated: The Owner [SAMS] agrees that to the fullest extent permitted by law, Environs Architects/Planners, Inc. total liability to the Owner shall not exceed the amount of the total lump sum fee due to negligence, errors, omissions, strict liability, breach of contract or breach of warranty. The hotel was nearly complete when serious structural defects were discovered. The building department condemned the structure. Attempts to remedy failed; the hotel was demolished without opening. SAMS estimated its loss at more than $4.2 million. While SAMS’s suit against Environs was pending, the Indiana Supreme Court held that the “economic loss rule” applies to construction contracts under Indiana law: a party to a contract cannot be liable under a tort theory for any purely economic loss caused by negligent performance of the contract, absent any personal injury or damage to other property. The district court applied the rule to grant summary judgment rejecting SAMS’s negligence claim and held that SAMS’s recovery on its breach of contract claim would be limited to $70,000. The Seventh Circuit affirmed. View "Sams Hotel Grp., LLC v. Environs, Inc." on Justia Law
United States v. Uribe
Uribe was driving along I- 70 in Indiana, apparently in compliance with all traffic laws, in a vehicle that had no visible evidence of noncompliance with vehicle requirements other than that it was a blue Nissan with a registration number that traced back to a white Nissan. A deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” Uribe consented to a search of the vehicle, which yielded nearly a pound of heroin and indictment for possessing with intent to distribute 100 grams or more of heroin, 21 U.S.C. 841(a)(1) and (b)(1)(B)(i). The district court granted Uribe’s motion to suppress, finding the government’s explanations insufficient to establish that at the time of the stop the deputy had a reasonable, articulable suspicion that Uribe was engaged in criminal activity. The Seventh Circuit affirmed, finding that one lawful act in isolation, driving a car of one color with a registration number attached to a car of a different color, does not give rise to reasonable suspicion that a driver is engaged in criminal activity. View "United States v. Uribe" on Justia Law
West Bend Mut.l Ins. Co v. Arbor Homes, LLC
Arbor builds homes in Indiana and contracted with Willmez Plumbing, which was to obtain insurance naming Arbor as an additional insured. Willmez subcontracted to Alarcon. After the work was ostensibly completed, the buyers noticed a foul odor and felt ill. Alarcon had not connected the plumbing to the main sewer line. Raw sewage had discharged into the crawl space. Willmez corrected the connection. Arbor contracted for cleanup that required excavation and decontamination and cost about $65,000. The owners demanded replacement of the house. Arbor told Willmez to notify its insurer West Bend. Hearing nothing, Arbor assumed the insurer had no objections and agreed to build a new home, pay closing costs and moving expenses, and to compensate for any increase in mortgage rate. Arbor sued Willmez, alleging negligence, breach of contract, slander of title, and constructive fraud, and sent West Bend a copy. The district court granted West Bend summary judgment, finding that it was relieved of duties to defend or indemnify by “fungi and bacteria exclusion” and “voluntary payments” provisions. The Seventh Circuit affirmed. Although Arbor’s quick and decisive action was laudable, failure to obtain West Bend’s consent to the settlement relieved it of any obligation. View "West Bend Mut.l Ins. Co v. Arbor Homes, LLC" on Justia Law
KS Energy Serv., LLC v. Solis
While installing a natural-gas pipeline in Madison, Wisconsin, KS Energy was cited by the Occupational Safety and Health Administration for violating trench safety regulations that require companies to protect workers from dangerous cave-ins. After inspecting KS Energy’s trench, OSHA issued a citation alleging a repeat violation of 29 C.F.R. 1926.652(a)(1) for failing to provide an adequate protective system. An ALJ upheld the citations, finding that the soil in the trench was “Type B,” so the slope was too steep based on and KS improperly used the technique of “benching” to configure its trench. The OSHA Review Commission made the determination final. The Seventh Circuit denied review. The parties agree that if the soil in the excavation was properly classified as Type B, the trench was impermissibly steep. Substantial evidence supports the determination that the soil was classified as Type B. View "KS Energy Serv., LLC v. Solis" on Justia Law
Scottsdale Ins. Co. v. Nat’l Sur. Corp.
Swanson hired ISF for steel fabrication work on an Indiana construction project. ISF hired Central to perform steel erection work. ISF and Central signed a subcontract in which Central agreed to procure insurance and to “defend, indemnify and hold harmless.” Central purchased insurance from Scottsdale: a $1 million commercial general liability policy and a $2 million umbrella insurance policy. ISF also carried $1 million in commercial general liability coverage from Amerisure and $7 million in umbrella coverage from National. Colip, a Central employee, was injured at work when he fell 30 feet through a hole in a building roof. Colip settled with ISF for $2.9 million, and the insurers paid according to an agreement that provided that Scottsdale would pay $1 million out of the CGL policy and $950,000 out of the Umbrella policy, while Amerisure would pay the remaining $950,000. Initially, National had no obligation to contribute. The agreement reserved the rights of the parties to seek reimbursement or contribution from each other. Amerisure sued Scottsdale and Central; Scottsdale filed counter- and cross-claims against Amerisure and National. The district court dismissed Central from the litigation and awarded Scottsdale $50,000 from Amerisure and the remaining $900,000 from National. The Seventh Circuit affirmed. View "Scottsdale Ins. Co. v. Nat'l Sur. Corp." on Justia Law
Citidal Grp. Ltd. v. Washington Reg’l Med. Ctr.
WR sought to develop a medical office building by executing a long-term ground lease to a developer, who would design, finance, construct, and own the facility, leasing space to WR. WR requested proposals, describing a 30-year ground lease for a 30,000 square foot medical facility. Citadel submitted a proposal. Negotiations followed. WR signed an “Authorization to Proceed” stating that WR “will only be responsible for architectural and engineering fees in the event [W R] does not execute its space leases and ground lease.” Citadel hired attorneys, architects, engineers; refined plans: conducted zoning review, and began securing financing. Negotiations failed. WR terminated the relationship, just as Citadel was preparing to commence construction. WR refused to pay expenses unless it received the plans; entered into contracts with Citadel’s architect and engineer; used their plans and built the facility. The district court rejected Citadel’s claims. The parties settled with respect to pre-construction costs and fees. The Seventh Circuit affirmed. Citadel failed to show that WR agreed to complete the arrangement. When the relationship ended, they had not agreed on essential lease terms. No language in the agreement required the parties to negotiate in good faith, nor did it establish a framework for the negotiation process. View "Citidal Grp. Ltd. v. Washington Reg'l Med. Ctr." on Justia Law