http://www.constructionlawnews.com/ Frost Brown & Todd LLC RSS Feed en-US Copyright Frost Brown & Todd LLC webmaster@sablaw.com Wed, 10 Mar 2010 13:58:11 GMT Wed, 10 Mar 2010 13:58:11 GMT http://www.constructionlawnews.com/BlogEntry.aspx?_entry=0a75064b-dfd5-4afc-9fbb-1b318a69c65d&RSS=true http://www.constructionlawnews.com/BlogEntry.aspx?_entry=0a75064b-dfd5-4afc-9fbb-1b318a69c65d&RSS=true March 4, 2010 Originally published in "Fidelity & Surety Law Committee Newsletter" by ABA (Winter 2010)

In 1984 the Ohio Supreme Court became one of the first courts to articulate what at first blush appeared to provide the legal basis for separate tort claims against sureties for alleged bad faith, and that decision was relied upon by courts in other jurisdictions that were inclined to recognize a similar cause of action. However, two recent federal decisions have severely limited the availability of such claims in Ohio by examining the factual and legal basis of that initial Ohio Supreme Court decision and then ruling that bad faith claims were not available to an obligee and a bond principal. Those cases also call into question a surety bond claimant’s right to bring a bad faith claim, as evidenced by a recent Ohio state court case in which a claimant voluntarily dismissed its bad faith claim after being served with a summary judgment motion based on those cases.

To view the full article (found on page 6), please click here.]]> Blog Entry http://www.constructionlawnews.com/BlogEntry.aspx?_entry=fe565d3c-b6b8-474b-9b3f-1885f6f4b1bd&RSS=true http://www.constructionlawnews.com/BlogEntry.aspx?_entry=fe565d3c-b6b8-474b-9b3f-1885f6f4b1bd&RSS=true 2/10/2010
    The University of Washington and the engineering firm CH2M Hill have launched the first rating system for sustainable road construction called “Greenroads,” which is similar to the LEED program for green buildings. It evaluates a highway’s environmental and social impact, by measuring such items as construction materials and practices, noise, and bike lanes. Projects wanting to earn the highest Greenroads rating have to incorporate building waste, pollution, lifecycle and outreach plans and can then earn extra points for, among other things, using recycled or local resources or by reducing the fossil fuel intake. 

    The University of Washington is currently following 15 case study projects to evaluate how the ratings system affects energy usage and the project’s carbon footprint and – of course – cost. 

    More information can be obtained by visiting the Greenroads website: http://www.greenroads.us/

Submitted by Shannah J. Morris.]]> Blog Entry http://www.constructionlawnews.com/BlogEntry.aspx?_entry=c9e2da87-1295-448e-bbb4-0be53f38626c&RSS=true http://www.constructionlawnews.com/BlogEntry.aspx?_entry=c9e2da87-1295-448e-bbb4-0be53f38626c&RSS=true 2/10/2010 Power & Sons Constr. Co., Inc. v. Healthy E. Chicago, 919 N.E.2d 137, 2009 Ind. App. LEXIS 2842, at *1 (Ind. Ct. App. Dec. 30, 2009). This is important because claims against general contractors are often based on contract but have elements of negligence. Significantly, the court looked past the negligence components and determined that the statute of limitations for breach of contract applied. 

    The owner had filed a complaint against the general contractor, alleging that the general contractor knew or should have known the building site contained toxic and organic materials and a high water table, failed to have the materials removed, failed to properly supervise installation of a slab, and failed to warn the owner of the materials and that the slab installation could damage the floors, walls, and ceilings of the building. Powers, 2009 Ind. App. LEXIS 2842, at *4-5. The general contractor moved for summary judgment on the basis of the complaint not being timely under statutes of limitations, which the lower court denied. The general contractor appealed. 

    The Indiana Court of Appeals affirmed the denial of the summary judgment motion based on statutes of limitations. The court applied a ten-year statute of limitations for written contracts found in Indiana Code § 34-11-2-11, which made the complaint timely. The general contractor had pushed for application of a (tort) six-year statute of limitations for injuries to property other than personal property found in Indiana Code § 34-11-2-7. The general contractor also argued for the application of a two-year statute of limitations for actions on injuries to personal property found in Indiana Code § 34-11-2-4. Either statute argued for by the general contractor would have rendered the Complaint untimely. 

    In dismissing the argument for the two-year statute, the court looked at the nature of the property at issue. The building at issue is not “personal property” in that it is immovable and part of the real estate. Using this simple reasoning, the court gave little attention to proposed two-year personal property statute of limitation.
 
    The court paid more attention to the ten-year versus six-year statute argument. The general contractor claimed that the basis for the complaint was professional negligence, but the court disagreed. “We have never held the responsibility of a general contractor to be akin to that of an attorney or a doctor, however.” Powers, 2009 Ind. App. LEXIS 2842, at *14-15. The parties’ relationship arose from “contract rather than a standard of care imposed by law.” Powers, 2009 Ind. App. LEXIS 2842, at *15. The complaint sought to recover damages resulting from the general contractor’s “failure to perform according to the contract” in terms of hiring and supervising subcontractors and constructing the building according to plans and specifications. Powers, 2009 Ind. App. LEXIS 2842, at *15.
    
    The lesson here is that, where a contract exists, claims against a general contractor that involve negligent performance of contractual duties will be evaluated by a ten-year statute of limitations for written contracts rather than a shorter statute of limitations for torts or for injury to personal property. The related lesson is that the standard of care for a general contractor can be found in the contract rather than imposed by a court.

Submitted by Eric D. Foerg.]]> Blog Entry http://www.constructionlawnews.com/BlogEntry.aspx?_entry=0f8427bc-9d1e-4f31-bd45-00a1aa9b095e&RSS=true http://www.constructionlawnews.com/BlogEntry.aspx?_entry=0f8427bc-9d1e-4f31-bd45-00a1aa9b095e&RSS=true 2/10/2010
    According to the Indianapolis Star, Indiana is already among the thirty three states that have adopted some form of guidelines requiring green building—referring to Gov. Mitch Daniels' 2008 executive order requiring all new state buildings to meet LEED's silver certification. However, If House Bill 1063 passes the Senate, Indiana would become just one of ten states that have passed laws requiring green standards to be met for all public buildings, which is where proponents of the bill want Indiana to be.

Submitted by Michael A. Rogers.]]> Blog Entry