Showing 22 posts by David C. Olson.
APPELLATE COURT REVERSES TRIAL COURT’S SUMMARY JUDGMENT, FINDING CLAUSE NOT ELIGIBLE FOR PAY-IF-PAID TREATMENT
In Evans, Mechwart, Hambleton & Tilton, Inc. v. Triad Architects, LTD, 2011-Ohio-4979 (10th District), the Tenth District Court of Appeals in Ohio examined a payment clause in a construction contract and determined that summary judgment rendered for an architect should be reversed and, instead, judgment entered in favor its sub-consultant. The court rejected the lower court's determination that the clause imposed a condition precedent for payment and found, to the contrary, that it was a pay-when-paid clause as opposed to a pay-if-paid clause. The court held that the appropriate language had not been used to transfer the risk of non-payment downstream to the sub-consultant. Read More ›
In its opinion released in October 2010, the Sixth District Court of Appeals in Ohio held that the Ohio Valley Associated Builders and Contractors (“ABC”) had statutory standing to present a claim alleging violation of Ohio’s prevailing wage laws. The court then returned the case to the trial court for further proceedings. Read More ›
In a decision filed on January 13, 2011, a Federal District Court in Indiana granted a Motion for Summary Judgment upholding a defense asserted by a surety and its principal based upon a pay-if-pay clause. The case cited with approval two prior cases deciding in New Jersey and West Virginia upholding similar clauses and defenses by the surety. Read More ›
The recent case of St. Paul Fire & Marine Ins. Co. v. VDE Corporation, 603 F.3d 119 (1st Cir. 2010) points to the importance of selecting an appropriate bond form and adhering to the terms of the bond. Read More ›
Given the current economic times, greater emphasis will be placed on collecting debts that are owed. Once a debt is reduced to a judgment, various collection options are available. One of the most common steps for debt collection is a judgment-debtor examination. In many respects, these are routine efforts used to identify the location of assets which could be used to satisfy the judgment. The recent case cited as Ohio Department of Taxation v. Kunkle, 179 Ohio App. 3d 747, 2008-Ohio-6393 is an example of potential strategies and also risks that can be encountered if the testimony provided at a judgment-debtor exam is less than truthful. Read More ›
Many construction projects contain an arbitration provision. If an adversary files suit, the typical strategy is to file a Motion to Stay the litigation pending enforcement of the arbitration clause. Many state and federal courts state policies strongly favoring arbitration and such clauses are upheld in the vast majority of cases. What happens when a party seeks pre-arbitration discovery to determine the existence or test the validity of its claims before demanding arbitration? Is that proceeding also subject to a Stay? The case White v. Equity, Inc., 178 Ohio App. 3d 604, 2008-Ohio-5226 (Ct. App. Franklin Cty. 2008) recently addressed this issue and reversed the trial court’s stay to allow the action from pre-suit discovery to proceed. Read More ›
Ohio Court Upholds Statute Requiring Out of State Corporation to Register to Do Business or Face Dismissal of Claims
Even in this day and age of computers, the Internet, and fast moving inter-state commerce, state lines mean something. For example, many states, including Ohio, have statutes which require out of state corporations to take steps to obtain licenses or file registrations to do business within the state. At times, these states have statutes which provide that those foreign companies which have not properly registered are not eligible to pursue claims in the state’s courts. The noncompliant companies do not lose their claims altogether; rather, their claims can be dismissed without prejudice or stayed pending full compliance with the applicable statute. Read More ›
You Can't Crash My Party: Court Rules Mere Presence of Third Parties Does Not, by Itself, Prevent Arbitration
Construction projects involve multiple parties that have multiple contractual relationships. Some of these contracts may contain arbitration clauses and some may not. What happens, therefore, if a dispute arises involving multiple parties and not all of those parties agreed to arbitrate their disputes? Are the parties that want to arbitrate denied the right to its chosen method of dispute resolution or will those who did not want to arbitrate be forced into a forum they did not select? A recent Ohio appellate court decision addresses this very issue. Read More ›
Supreme Court of New York, Appellate Division Upholds Summary Judgment in Favor of Surety in Indemnity Suit
In a case decided on March 18, 2008 and styled Prestige Decorating and Wallcovering, Inc. v. United States Fire Insurance Company, 2008 N.Y. App. Div. LEXIS 2398, the appellate division of the Supreme Court of New York upheld a trial court’s grant of summary judgment in favor of the United States Fire Insurance Company, the surety for IDI Construction Company, Inc. on a project in New York. In the lower court, several claimants presented claims to the surety under bonds issued for IDI Construction. The surety paid claims and incurred costs in excess of $500,000, and sought indemnity for those losses. In its motion for summary judgment, the surety submitted a sworn affidavit providing an itemized statement of its loss and expenses. In opposition, the indemnitors provided “conclusory affidavits” contending, in part, that the surety had not properly processed the claims or had paid the claims in “bad faith.” The trial court rejected these arguments and awarded the damages to the surety. Read More ›
Florida Appellate Court Upholds Jury Finding that Surety Was Not Given Proper Notice to Trigger Bond Obligation and Holds that Surety IE Entitled to All Attorneys' Fees
In Current Builders of Florida, Inc. v. First Sealord Surety, Inc., 2008 Fla. App. LEXIS 4698 (April 2, 2008), the Fourth District Court of Appeals in Florida reviewed a judgment rendered in favor of a contractor against its subcontractor for breach of contract. The jury had also found no liability on behalf of the subcontractor’s surety based upon a failure to give proper notice to the surety. The appellate court affirmed in part and reversed in part the ruling of the trial court. Read More ›
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C. Michael Shull, III focuses his practice on construction law and litigation. Michael's client representations range from casinos and ENR Top 400 contractors to design firms and subcontractors.