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Archive for the ‘Construction & Design Professional’ Category

FIU Footbridge Collapse Case Dismissed as “Shotgun Complaint” Fails to Differentiate Between Defendants

Posted on: March 12th, 2021

By: Tom McCraw

The US District Court for the Southern District of Florida recently dismissed a complaint without prejudice because the plaintiff failed to allege distinct conduct by the multiple defendants.  Instead, the plaintiff alleged facts concerning the defendants collectively, failing to satisfy the pleading requirements of the Federal Rules of Civil Procedure 8(a)(2) and 9(b).

The case arose from the fatal collapse of the footbridge at Florida International University (“FIU”) in March 2018. FIU had retained Magnum Construction Management, LLC (“Magnum”), as the design-build entity for the project. Magnum in turn retained FIGG Bridge Engineers, Inc. (“FIGG”), to perform all engineering services concerning the bridge.  Magnum also retained the Louis Berger Group, Inc. (“Louis Berger”), to conduct a peer review of FIGG’s designs. 

After the bridge collapsed, FIU settled with Magnum and other parties including Magnum’s surety, Travelers.  As part of that settlement, FIU assigned to Travelers any claims it had against any non-settling parties, including the defendants to this lawsuit.  Travelers then assigned to Magnum its rights against Louis Berger. 

Magnum brought claims for negligence and negligent misrepresentation against four defendants:  WSP USA Solutions, Inc.; Louis Berger U.S., Inc.; Louis Berger; and Amman & Whitney, Inc.  Magnum alleged that the defendants had misrepresented that they were pre-qualified to perform the peer review of FIGG’s designs for the bridge as required by state law, and that they failed to perform the peer review properly pursuant to federal law.  Magnum also sought contribution and equitable subrogation to recover the settlement paid by Magnum and Travelers to FIU.   

Magnum’s complaint, however, referred to the defendants collectively as “Louis Berger,” and did not include any “individualized allegations” delineating specific claims as to conduct by the particular defendants.  Moreover, the complaint alleged that Louis Berger was an entity separate and distinct from the other defendants.  The defendants moved to dismiss the complaint as a “shotgun pleading,” among other things – including the fact that Louis Berger was the only defendant retained by Magnum to perform the peer review of FIGG’s designs for the project.  Magnum objected, noting that the four defendants were all merged or successor entities to each other, such that reference to them collectively as “Louis Berger” was appropriate.

The court granted the defendants’ motion, holding that the complaint was indeed a “shotgun pleading” failing to “give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.”  The court was unpersuaded by Magnum’s argument that the defendants “had no separate and distinct corporate identities” in light of the fact that Magnum’s own “allegations in the Complaint state otherwise.”  Having failed to allege the interrelationship of the defendants in the complaint, Magnum’s collective treatment of them as a single entity – without any differentiation between them – was its undoing.  The court dismissed the case but gave Magnum leave to amend its complaint within 14 days.  See Magnum Construction Management, LLC v. WSP USA Solutions, Inc., et al., Case No. 20-24684-CIV ALTONAGA/Torres, March 2, 2021.

The Magnum decision is instructive not only to plaintiffs as to the perils of poorly pleaded allegations, but also to the defense bar as an illustration of the avenues of dismissal when the complaint is so scattershot as to fail to state a claim upon which relief can be granted.

For more information, please contact Tom McCraw at [email protected].

California’s Expedited Procedure to Expunge Mechanic’s Liens

Posted on: February 17th, 2021

By: Ken Coronel

A common, current instruction from client to lawyer: Get those mechanic’s liens off my property! In our present economic environment there are plenty of reasons why property owners need to keep their real property free of encumbrances. Unfortunately, it seems that more often than not, property owners find themselves in disputes with their contractors. The owner may withhold payment for work not completed or improperly done, while the contractor retaliates by recording a mechanic’s lien against the owner’s property.

If the mechanic’s lien has become stale, it is subject to being expunged on an expedited basis following the filing of a petition to expunge (invalidate) the lien. The lien becomes stale if a lawsuit is not filed to foreclose it within 90 days of the recording of the lien. Civil Code section 8460. In that event, under section 8480, the owner may petition the court for an order to release the property.

In terms of process, it starts when the owner gives the contractor a required written demand to remove the lien and send it per one of the prescribed service methods. The owner must then wait ten days before filing the petition. The owner should obtain a certified copy of the claim of lien as that will need to be attached to the petition.

When the petition is filed, it must be set for hearing by the court clerk within 30 days of being filed. The court may continue the hearing on a showing of good cause, but the court is required to rule and make any necessary orders on the petition not later than 60 days after the filing of the petition.

One question about the statute is whether it can also be used to expunge liens which are facially invalid due to another reason, e.g., the contractor is not licensed. The statute is limited in its language to stale claims, but on the one occasion this author asked the court to invalidate a lien that was clearly invalid for other reasons and the court obliged. I have known other attorneys to prevail on these motions, as well.

Finally, one other aspect of this procedure which is attractive to owners: the prevailing party is entitled to reasonable attorney’s fees. Civil Code section 8488.

For more information, please contact Ken Coronel at [email protected].

A Bridge Too Far – 3d. Circuit Holds PA Safety Regulations Inapplicable to Delaware River Joint Commission Construction

Posted on: January 28th, 2021

By: Sean Riley

In Del. River Joint Toll Bridge Comm’n v. Sec’y Pa. Dep’t of Labor & Indus., No. 20-1898, 2021 U.S. App. LEXIS 895, at *2 (3d Cir. Jan. 12, 2021) the Third Circuit Court of Appeals recently held that Pennsylvania had ceded its authority to enforce building safety regulations for the construction of an administrative office in Bucks County, Pennsylvania.

Nearly 100 years ago, Pennsylvania and New Jersey enacted laws creating the Delaware River Joint Toll Bridge Commission, authorizing the Commission to not only administer, operate and maintain toll bridges crossing the Delaware River but to also acquire real property and to make improvements thereon to the extent necessary to discharge its duties. In 2017, the Commission undertook a project to replace the Scudder Falls Bridge that connects Bucks County, Pennsylvania with Mercer County, New Jersey. As part of that project, the Commission purchased ten acres of land near the bridge on the Pennsylvania side of the river and broke ground on the Scudder Falls Administration Building, which would house the Commission’s staff in a single location. A year later, inspectors with the Pennsylvania Department of Labor took issue with the fact that the Commission had proceeded with construction without having applied for a building permit, as required under the Department’s regulations. The Department threatened to issue a stop-work order for want of a permit; however, the Commission maintained that it was exempt from Pennsylvania’s regulatory authority and continued with construction. Undeterred, the Department turned its attention to the Commission’s elevator subcontractor, threatening it with regulatory sanctions for its involvement in the project. The Commission filed a complaint seeking a declaratory judgment that the Department lacked authority to enforce Pennsylvania’s building regulations pursuant to the inter-state compact.

The District Court for the Eastern District of Pennsylvania granted the Commission’s request, holding that the Commission’s new administrative office was not subject to Pennsylvania’s building regulations as the authority to enforce such regulations had been ceded in the compact between the states. On appeal, the Third Circuit affirmed, establishing precedent that such buildings and other construction projects engaged in by the Commission and its contractors are wholly exempt from state safety regulations.

For more information, please contact Sean Riley at [email protected].

No Control, No Duty Owed

Posted on: January 13th, 2021

By: Thomas Hay

In a Massachusetts trial court action, Timothy Lyons v. Phillip C. Farmer Development, Inc., Docket No. 1781-cv-01156, Freeman, Mathis & Gary, LLP prevailed on a motion for involuntary dismissal following the conclusion of the first civil bench trial held in Middlesex County Superior Court since the courts closed in March 2020 due to Covid-19.

The matter involved plaintiff, a thirty-five-year-old experienced framer, who brought a claim for negligence against the defendant, general contractor, resulting from an injury he sustained while performing framing work at a residential construction site. Plaintiff, an employer of the framing subcontractor, alleged the defendant owed him a duty of care to supervise the framing and safety measures utilized by his employer. Specifically, plaintiff claimed the defendant had a non-delegable duty to inspect, supervise, and ensure all appropriate safety regulations and OSHA standards were being utilized, including those set forth in 454 CMR § 10.00 (the “State Regulation”).

The plaintiff, an experienced carpenter and framer, severely injured his left foot and knee after stepping off the end of a saw-horse scaffold (the “scaffold”) while marking the roof’s ridge beam for the installation of the single-family home’s roof. The plaintiff alleged permanent disability preventing him from any meaningful employment. The scaffold was constructed a day or days prior by the plaintiff’s employer and stood no more than six feet above the floor below. The scaffold, which met the definition of a scaffold under the Occupational Safety and Health Administration’s regulations,[1] had no guard rails and the plaintiff was not using fall protection. Fall protection, however, was made available by the plaintiff’s employer who also supplied all tools and equipment necessary to frame the home.

No Duty Owed Through Contract or Control

Under Massachusetts case law, a general contractor has a duty to its subcontractor’s employees if it “retains the right to control the [subcontractor’s] work in any of its aspects, including the right to initiate and maintain safety measures and programs[.]” Corsetti v. Stone Co., 396 Mass. 1, 10 (1985)(adopting the Restatement (Second) of Torts § 414). Thus, only by retaining sufficient control over the subcontractor’s framing work, or the safety of that work, would the defendant owe a legal duty to the plaintiff.

Here, the defendant had no written contract with the plaintiff’s employer and the oral agreement between the parties did not establish any obligation on the defendant to direct or control subcontractor’s work or the safety of that work. Moreover, the evidence at trial established the defendant did not retain control, by contract or in practice, the work of plaintiff’s employer. The defendant did not give direction to the plaintiff, his employer, or any of its employees. In sum, the framing subcontractor was responsible for the means, manner, and methods of its work as well as the safety measures employed.  

Nondelegable Duty?

The plaintiff additionally argued the defendant, as general contractor, had a nondelegable duty of care for the overall safety of persons on the jobsite under the State Regulation. However, the State Regulation applies in the context of the employer-employee relationship. Accordingly, the State Regulation cited by the plaintiff, at Section 10.03(9), is inapplicable as the plaintiff was not an employee of the defendant. Thus, the court found the State Regulation did not impose a duty of care for supervision of safety on the defendant general contractor.

The Superior Court’s decision reaffirms the principle set forth in Corsetti and its progeny that a general contractor may only be held liable to a subcontractor’s injured employer where it exercised or retained meaningful control through contract or its actions on the jobsite.

[1] Additionally, the court, agreeing with the defendant, found the State Regulation governing safety requirements for scaffolds to be in conflict with the applicable OSHA scaffold safety regulation, 29 C.F.R. § 1926.451(g)(1) (the “OSHA Regulation”). The court found the State Regulation, requiring guardrails to be used for scaffolds more than four feet above the floor below, was in conflict with the OSHA Regulation that only required guardrails or fall protection for scaffolds at heights greater than ten feet above the floor below. The court reasoned that the OSHA Regulation, a federal standard, addresses the same safety and health issues as the State Regulation. Because the State Regulation directly, clearly, and substantially conflict with OSHA standards, the court found the State Regulation was preempted by the OSHA Regulation. 

If you have questions or would like more information, please contact Thomas Hay at [email protected].

Massachusetts Statute of Repose Applies One Building At a Time

Posted on: December 22nd, 2020

By: David Slocum

The Massachusetts Supreme Judicial Court (the “SJC”) recently issued an important decision addressing the previously unanswered question of when the Massachusetts 6-year statute of repose for defective design, planning, or construction is triggered for purposes of alleged defects in the common areas of a multi-building, multi-phase condominium construction project.

In D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d 197 (Mass. 2020), the Massachusetts high court held that irrespective of how many phases of development there are or how many buildings are within each phase, where a condominium project is comprised of multiple buildings, each individual building constitutes a discrete improvement for purposes of Massachusetts’ six-year statute of repose. In D’Allessandro, the Hewitts Landing Condominium project located in Hingham, Massachusetts (the “Project”) was comprised of 150 condominium units spread across twenty-eight separate buildings. The Project was built over the course of nearly two-dozen separate phases between 2008 and 2015. During the course of construction, the architect submitted affidavits of substantial completion and the town issued certificates of occupancy for the individual units and separate buildings as they were completed.

In 2017, the Condominium’s trustees filed a complaint seeking damages from the developer and others for alleged defects to the common areas of the Project. Because six of the twenty-eight buildings had been completed more than six years before the complaint was filed, the defendants argued the claims as to those buildings were barred by the statute of repose, which provides no tort action “arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” may be brought more than six years after “(1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner,” whichever date occurs earlier. Mass. Gen. Laws ch.260 § 2B.

The question before the Court was whether the statute of repose was triggered only upon the substantial completion of the entire condominium project, or whether instead the statute was triggered multiple times as each individual building was open to use or substantially completed. In answering that question, the Court wrote: “[w]here a condominium development is comprised of multiple buildings, regardless of how many phases of the development there may be or how many buildings are within each phase, each building constitutes a discrete ‘improvement’ for purposes of [Mass. Gen. Laws ch. 260] § 2B, such that the opening of each individual building to its intended use, or the substantial completion of the individual building and the taking of possession of occupancy by the owner or owners, triggers the statute of repose.” D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d. at 203-04.

Under the holding in D’Allessandro, the substantial completion of each individual building and the taking of possession of that building for occupancy by the owner triggers the statute of repose as to the common areas of that individual building. Thus, in the context of a complex condominium project with multiple buildings and phases, the protection afforded to design professionals, developers, contractors and the like by the Massachusetts statute of repose does not have to wait until six years after substantial completion of the entire project. Rather, the statue will be held to apply one building at a time.

If you have questions or would like more information, please contact David Slocum at [email protected].